PEOPLE v. BIERMAN

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Don Michael BIERMAN, Defendant and Appellant.

No. B099657.

Decided: July 22, 1997

Sylvia Whatley Beckham, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Roy C. Preminger, and David A. Warshaw, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant, Don Michael Bierman, appeals from a judgment of conviction for transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a)) and for possession of methamphetamine (Health & Saf.Code, § 11377).   He contends evidence of the drugs found in his van should have been suppressed because the prosecution failed to prove the arresting officers had either reasonable suspicion or probable cause to believe he was, or had been, involved in a crime.   He also claims the trial court erred in failing to instruct the jury possession was a lesser included offense of transportation and further that he may not be convicted of both the transportation and possession of the same drugs.   In addition, appellant claims the court's instruction on reasonable doubt was erroneous, the “Three Strikes” law violates the separation of powers doctrine and his sentence must be vacated and remanded to the trial court to allow the court to exercise its discretion to strike the prior felony conviction allegation.   Finally, appellant argues the abstract of judgment must be modified to correctly reflect the jury's verdict.

We conclude it was not error to deny appellant's motion to suppress because the circumstances at the scene provided the officers adequate corroboration to reasonably suspect appellant had been involved in a crime and to detain him for further investigation.   We also reject appellant's claims of instructional and substantive errors and affirm the judgment of conviction.   However, we modify the abstract of judgment to conform to the jury's verdict.   Further, we remand for reconsideration of the sentence pursuant to People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.

FACTS AND PROCEEDINGS BELOW

On August 22, 1994, Officer Michael Jackson of the Long Beach Police Department was driving a patrol car along Pacific Coast Highway with his partner, Officer Marcus Hodge.   At 10 p.m. the officers received a police broadcast that someone from the Department of the Navy had reported “shots fired” at Pier T and Seaside Boulevard under the Gerald Desmond Bridge.   This is a very remote industrial area which immediately borders Department of the Navy property.   There are no residential or retail facilities at all in this harbor area.

Officers Jackson and Hodge were dispatched to the scene.   The dispatcher told them a second patrol officer and a police helicopter had also been dispatched.

Within seconds the officers received a second radio broadcast stating the Navy Department reported seeing a white van leaving the area of Pier T and Seaside Boulevard at a high rate of speed traveling in a northerly direction.

The officers drove south from their location on Pacific Coast Highway.   Traffic was very light at that time of night.   In less than five minutes they saw the police helicopter flying overhead with its search light on.   They followed the helicopter light to where it was trained on a white van which was driving slowly in a parking lot.   The parking lot was used by patrons of a sports fishing office and the Queen's Wharf restaurant and bar at 555 Pico Boulevard, approximately two miles from Pier T and Seaside Boulevard.   These are the only retail establishments in what is otherwise an industrial area.   There were a few other vehicles in the parking lot, including one or two semi-trucks.

At trial the parties stipulated the pilot of the police helicopter would testify he spotted the white van as soon as it came out from the Gerald Desmond Bridge and that he followed it into the Queen's Wharf restaurant parking lot.   When the van entered the parking lot the pilot thought he saw a person exit from the passenger side of the van, but he was not sure.

Officers Jackson and Hodge turned on their emergency lights and sirens and pulled their patrol car behind the white van.   Appellant opened the driver's side door and began to get out.   The officers got out of their patrol car, drew their guns, and ordered appellant out of the van.   Appellant complied and was immediately handcuffed by Officer Hodge.

The officers peered inside the van's windows looking for other persons who might be inside.   As Officer Jackson approached the open driver's side door he smelled the stench of burning marijuana.   From his position standing outside the van Officer Jackson saw a partially smoked handrolled marijuana cigarette laying in the ashtray on the console of the van.

Officer Jackson then searched the interior of the van.   Between the front bucket seats he saw a black “fanny pack.”   The officer testified that when off duty he carried his service revolver in a black “fanny pack” and believed the “fanny pack” was a likely place to store a firearm.   Inside the black “fanny pack” he instead found a baggie containing marijuana, over an ounce of methamphetamine within separate baggies in portions typical of retail sales, unused baggies, a small scale, a glass pipe used for smoking controlled substances, a straw used to snort controlled substances and other drug related paraphernalia.

Officer Jackson also searched a beige cloth bag setting next to the fanny pack on the floorboard between the seats.   Inside this bag the officer found three small baggies, another glass smoking pipe, a straw as well as an unmarked prescription bottle containing tablets.   He also found a box containing marijuana cigarettes, a large variety of prescription pills inside small boxes stored inside a larger box, a blow torch, butane, and more drug paraphernalia.

Appellant was arrested and taken to the police station for booking.

At the station appellant waived his Miranda1 rights and admitted the drugs were for his personal use.   He explained he sustained a back injury years before and he used the drugs for self-medication.

At trial appellant testified to a different version.   He denied using any drugs other than prescription drugs for back pain.   He denied he owned the drugs and said they belonged to his friend.   He testified his friend, Fred Perez, called him at home in Cudahy.   Perez said he was stranded at a restaurant in downtown Long Beach and asked appellant to pick him up.   Appellant agreed, although it was late in the evening and appellant had intended to visit his girlfriend in San Pedro.

From home appellant drove south on the Long Beach Freeway.   When he picked up Perez, Perez was carrying the two bags the officers found in his van.   They drove to the Queen's Wharf parking lot to make reservations for a sport fishing trip.   Perez was smoking a marijuana cigarette until appellant told him to put it out.   As they entered the parking lot Perez asked appellant to let him out so he could talk to some men he knew.   When appellant pulled the van forward to park he saw the helicopter light overhead and saw a patrol car pull up behind his van.

The police found no gun inside the van or on appellant's person.   The police found no drugs on appellant's person.   A drug expert concluded appellant was not under the influence of any drug when arrested.

Appellant's testimony was impeached with evidence of prior felony convictions and with evidence indicating he had abused drugs for decades.

Appellant was charged in a two count information.   Count I alleged appellant transported or sold methamphetamine, a controlled substance (Health & Saf.Code, § 11379, subd. (a)) and count II alleged appellant possessed the methamphetamine for purposes of sale (Health & Saf.Code, § 11378).   The information also alleged appellant had suffered two prior felony convictions for “Three Strikes” sentencing purposes:  (1) eight counts of robbery in violation of Washington Revised Code former section 9.75.010, on November 25, 1975, in Cowlitz, Washington (case no. 5816), and (2) one count of residential burglary in 1983 in Los Angeles County (case no.   A457488).

The jury found appellant guilty of knowing transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a)).   The jury acquitted appellant of the charge of possession of methamphetamine for sale (Health & Saf.Code, § 11378), but convicted him of the lesser included offense of simple possession.  (Health & Saf.Code, § 11377.)

Appellant waived his right to a jury trial on the truth of the prior conviction allegations.   The trial court found the Washington conviction allegations not true but found true the 1983 California conviction for residential burglary.

The trial court denied appellant's request to strike the prior burglary conviction allegation.   The court sentenced appellant to the high term of four years on the transportation conviction, doubled as a second strike (Pen.Code, § 667, subd. (e)(1)) to eight years in state prison.   The court imposed and stayed sentence on the simple possession conviction.

Appellant appeals from the judgment of conviction and sentence.

DISCUSSION

I.-IV.**

V. THE CAUSE MUST BE REMANDED FOR SENTENCING TO PERMIT THE TRIAL COURT TO EXERCISE ITS DISCRETION WHETHER TO STRIKE THE PRIOR FELONY CONVICTION ALLEGATION IN THE INTEREST OF JUSTICE.

Prior to the sentencing hearing in September 1995, appellant requested the trial court to dismiss the prior felony conviction allegation in the interest of justice.   He pointed out he was then 40 years old and disabled.   He also argued the prior conviction allegation found true by the trial court was remote in time.   He sustained the California burglary conviction in 1983, or more than 11 years earlier.

The prosecutor opposed appellant's request.   She argued that under the Three Strikes law the trial court did not have discretion to strike prior felony conviction allegations.   In addition, she argued it was not in the interest of justice to strike the allegation in any event.

The trial court made no comment other than to deny appellant's request to strike.

While this appeal was pending, the California Supreme Court filed its opinion in People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.   This decision held that in cases charged under the Three Strikes law the trial court does retain discretion to dismiss a prior felony conviction allegation in the interest of justice.  (13 Cal.4th at p. 504, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   The Romero court also made its holding fully retroactive and explained its application as follows:  “A defendant serving a sentence under the Three Strikes law ․ imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in furtherance of justice pursuant to section 1385(a), may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence․  [Citation.]”  (Id. at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   The court also explained the circumstances under which reconsideration of a sentence would be unnecessary.  “Such a petition may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.  [Citation.]”  (Ibid.)

Neither of the two exceptions to reconsideration of the sentence are present in this case.   Nothing in the record indicates the trial court was aware it possessed the discretion to strike the prior felony conviction allegation in the interest of justice.   Indeed, the prosecutor argued that under the current state of the law the trial court did not possess such independent discretion.   Nor does the record clearly indicate the trial court would not, in any event, have exercised its discretion to strike the allegation.   We conclude that in these circumstances remand for reconsideration of the sentence imposed is the appropriate remedy where the record sheds no light on the trial court's understanding of its sentencing discretion under the “Three Strikes” law.

Although this division reached a different conclusion in People v. Rocha (1996) 48 Cal.App.4th 1060, 56 Cal.Rptr.2d 212-albeit for somewhat different reasons and in different circumstances-we did so in one sentence in a footnote responding to a supplemental letter brief filed by appellant.   (Id. at p. 1072, fn. 7, 56 Cal.Rptr.2d 212.) We cited no authority for our holding and gave the matter only cursory attention.   A split of authority has developed over whether a sentence should be remanded under Romero where the defendant did not specifically request the trial court to strike a prior conviction under Penal Code section 1385 and/or the record is silent as to whether the trial court understood it had the discretion to do so.5

Our decision in People v. Rocha, supra, 48 Cal.App.4th 1060, 56 Cal.Rptr.2d 212, was recently criticized in People v. Allen (1997) 53 Cal.App.4th 1127, 62 Cal.Rptr.2d 274.   On reflection, we believe the Allen court's analysis presents a better reasoned treatment of the remand issue, and we now adopt it as our own.   The Allen court explained the remand issue as follows:  “Where the record is clear, these situations have presented few problems in the appellate courts.   The difficulty has arisen where the record is truly silent and the question of dismissal of allegations of prior serious felonies under section 1385(a) was never mentioned by court or counsel.   A split among the Courts of Appeal has resulted.   A number of opinions have concluded it cannot be shown from a silent record whether the sentencing court misunderstood its discretion to strike prior conviction allegations and, applying the presumptions in favor of the validity of the trial court's judgment, defendants in such cases cannot therefore carry the burden of affirmatively demonstrating error.  [Citations.]

“Other cases concluded a defendant's failure to request the trial court to dismiss pursuant to section 1385(a) results in waiver of any right to seek remand in order to make such a request post-Romero.   This conclusion is based on the reasoning of the Supreme Court in People v. Scott (1994) 9 Cal.4th 331, 348, 36 Cal.Rptr.2d 627, 885 P.2d 1040, where the defendant attempted for the first time on appeal to raise objections to the trial court's statement of reasons in support of its discretionary sentencing choices.   (Id. at p. 336, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)  People v. Rocha, supra, 48 Cal.App.4th 1060, 56 Cal.Rptr.2d 212, concluded a defendant's failure to make the request under section 1385(a) waives the issue on appeal.   People v. Askey (1996) 49 Cal.App.4th 381, 56 Cal.Rptr.2d 782 also found waiver to bar relief in this context.

“․

“Section 1385(a), as amended, provides:  ‘The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action be dismissed.’   There is no suggestion this motion may be brought by the defendant, and the only court to have held such a motion is a prerequisite to appeal was the Second District in People v. Rocha in a footnote containing neither discussion nor citation to other authority.  (48 Cal.App.4th 1060, 1072, fn. 7, 56 Cal.Rptr.2d 212.) It would be manifestly unjust to now use hindsight to conclude the issue should have been raised by a motion, not countenanced by the statute, in all three strikes cases sentenced during the pendency of the Romero decision.   This is particularly true in view of the unsettled state of the law prior to the enactment of the three strikes law and the filing of the Romero opinion.

“Prior to June 20, 1996, the date Romero was filed, most Courts of Appeal had concluded there was no right on the part of the sentencing judge to strike a prior felony conviction.   A number of cases remain pending before the Supreme Court.  [Citations.]

“Only one Court of Appeal case decided prior to the June 20, 1996, opinion in Romero had concluded a trial judge could strike a prior serious felony allegation.  (People v. Casillas (1995) 49 Cal.App.4th 1837, 47 Cal.Rptr.2d 734, review granted Mar. 14, 1996 (S051201).)․

“Those courts rejecting the remand remedy in silent record cases have depended on the application of traditional appellate presumptions in favor of the judgment.  [Citation.]   However, as the court pointed out in People v. Mosley, ‘Footnote 13 of Romero represented an exception to the normal presumption of regularity concerning the exercise of sentencing discretion.   This was the result of a practical determination by the California Supreme Court that given the uncertainty in the law on June 20, 1996, the normal presumption that a sentencing judge would be willing to consider striking a prior serious felony conviction as permitted by section 1385, subdivision (a) without prosecutorial concurrence did not exist.’  (53 Cal.App.4th 489, 497, 62 Cal.Rptr.2d 268, italics added.)

“This conclusion is clearly implicit in footnote 13 itself, which annunciates only two circumstances in which the presumption of regularity may be applied with respect to sentencing in a three strikes case for the Romero opinion:  ․ The implication is that in all other situations, where the foregoing two circumstances cannot be shown, defendants sentenced between the enactment of the three strikes statute and the Romero opinion, are entitled to be resentenced by a trial court informed of sentencing discretion expressed in Romero.   To hold otherwise would be to create an exclusion not stated in the Romero opinion and directly counter to the express holding the opinion is to have ‘full retroactive effect.’ ”  (People v. Allen, supra, 53 Cal.App.4th 1127, 1133-1136, 62 Cal.Rptr.2d 274, italics added, footnote omitted.)

We agree there can be no presumption of regularity where the record of a pre-Romero sentencing hearing is silent whether the trial court understood its discretion to strike a prior felony conviction allegation.   At the time this trial court was sentencing appellant the judge would have had to have been either omniscient or arrogant to believe it could strike appellant's prior felony conviction.   Accordingly, we remand to the trial court to exercise its discretion whether to strike the prior felony conviction allegation in this case.

VI. THE ABSTRACT OF JUDGMENT MUST BE CORRECTED TO REFLECT THE JURY'S CONVICTION OF SIMPLE POSSESSION, RATHER THAN OF POSSESSION FOR PURPOSES OF SALE, IN COUNT II.***

DISPOSITION

The convictions are affirmed.   The abstract of judgment is ordered corrected to reflect a conviction in count II of a violation of Health and Safety Code section 11377, rather than a violation of Health and Safety Code section 11378.   The sentence is vacated and the matter remanded to the trial court to exercise its discretion whether to strike the prior felony conviction allegation in accordance with the decision in People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.

I concur in the majority opinion except for its Romero discussion, from which I dissent.  (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr. 789, 917 P.2d 628.)

The instant facts are distinguishable from both People v. Rocha (1996) 48 Cal.App.4th 1060, 56 Cal.Rptr.2d 212 and People v. Allen (1997) 53 Cal.App.4th 1127, 62 Cal.Rptr.2d 274.  Rocha and Allen, defense counsel did request the trial court dismiss a “strike.”   The prosecutor opposed the request, arguing the trial court lacked discretion to dismiss a “strike.”   The trial court, without revealing whether or not it believed it had discretion to dismiss a “strike,” summarily denied the request.

In such circumstances, although the issue is a close one, I agree a Romero remand is appropriate.

I do not agree with the majority's wide-ranging Romero discussion.

FOOTNOTES

1.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

FOOTNOTE.   See footnote *, ante.

5.   Cases ordering remand include People v. Stevens (1996) 48 Cal.App.4th 982, 984, 56 Cal.Rptr.2d 13 [remand ordered where defendant moved to strike prior but record “unclear” as to whether judge understood discretion];  People v. Sotomayor (1996) 47 Cal.App.4th 382, 390-391, 54 Cal.Rptr.2d 871 [remand ordered where defendant did not move to strike but record reflected judge misunderstood discretion].Cases denying remand include People v. Davis (1996) 50 Cal.App.4th 168, 172-173, 57 Cal.Rptr.2d 659 [no remand where defendant did not move to strike and record silent as to whether judge understood discretion];  People v. Alvarez (1996) 49 Cal.App.4th 679, 694-696, 56 Cal.Rptr.2d 814 [same];  People v. Askey (1996) 49 Cal.App.4th 381, 388, 56 Cal.Rptr.2d 782 [no remand where defendant did not move to strike];  People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523, 56 Cal.Rptr.2d 749 [no remand where defendant did not move to strike and record silent as to whether judge understood discretion].

FOOTNOTE.   See footnote *, ante.

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.

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