People v. Lewis CA4/2

Filed 12/19/13 P. v. Lewis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E056993

v. (Super.Ct.No. RIF1102889)

PAUL DIXON LEWIS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach,

Judge. Affirmed with directions.

Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and William M.

Wood, Deputy Attorneys General, for Plaintiff and Respondent.

1
 A jury convicted defendant Paul Dixon Lewis of possession of a controlled

substance within a penal institution (count 1 – Pen. Code, § 4573.6)1 and possession of

marijuana for sale (count 2 – Health & Saf. Code, § 11359). After a bifurcated

proceeding thereafter, the court found true allegations defendant had suffered eight prior

strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and a prison

prior (§ 667.5, subd. (b)). The court sentenced defendant to a determinate term of one

year followed by an indeterminate term of 25 years to life.

On appeal, defendant contends substantial evidence fails to support his conviction

for possession of marijuana for sale, specifically with respect to his intent to sell; the

court erred in declining to grant his Romero2 motion to strike seven of his eight prior

strike convictions; the court erred in imposing a restitution fine of $5,000; and the

abstract of judgment and sentencing minute order must be corrected to accurately reflect

the court’s imposition of sentence and that trial was by jury and not by the court. The

People agree the abstract of judgment and sentencing minute order must be corrected.

We agree with the People and shall order the superior court to correct the abstract of

judgment and sentencing minute order. In all other respects, the judgment is affirmed.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

2
 FACTS

Correctional officer Timothy Schmid of the California Rehabilitation Center in

Norco, California, was on duty on May 16, 2011, as the disciplinary officer. He entered

one of the prisoner’s dorms and heard an “unidentified inmate call out ‘walking,’ which

is common practice for inmates to alert other inmates that an officer is in the dorm so

they can let them know something is going on.” Schmid smelled the odor of marijuana.

He called in the assigned dorm officer and they walked through the dorm together. “I

was able to smell a very strong odor of marijuana coming from a particular bed area.”

Schmid ordered all the inmates in that particular bed area to step out. He and the

dorm officer searched those inmates. One of the individuals he searched was defendant;

“When I was searching his buttocks and crotch area, I was able to detect a foreign object

inside his clothing.” They handcuffed defendant and brought him into a separate area to

conduct an unclothed body search.

Schmid found 25 bindles of marijuana enclosed in a latex glove secreted in the fly

of defendant’s underwear.3 Inmates typically use the fingers of latex gloves to package

various drugs individually. The total weight of all the bindles was 13.2 grams. He

conducted a field test of the marijuana which resulted in a presumptive positive result.

Schmid also took a urine sample from defendant and sent it to the lab for testing.

3Schmid testified that multiple, prepackaged drugs is an indicator the drugs are
possessed for sales, although he did not find any pay-owe sheets, cash, cell phones,
Western Union receipts, or a list of addresses.

3
 Criminalist Casey Hughes tested one of the 25 bindles, which tested positive for

marijuana. The bindle weighed 0.5 net grams. A packet of sugar weighs about a gram.

Toxicologist Thomas Sneath’s lab was contracted with the prison to conduct

urinalysis testing on inmates. Defendant tested negatively for THC, the active ingredient

in marijuana. A urine test can typically detect marijuana within a user’s system within

one to two hours of ingestion. A single use would stay in a person’s system for three to

four days; however, the detectable amount of THC in a daily user’s urine could stay in

the individual’s system for up to eight weeks.

Miguel Vega, a correctional officer assigned to the Investigators Services Unit at

Norco, in which he spends most of his time investigating narcotic transactions, testified,

“[m]ost commonly, once marijuana has been introduced into the prison, it’s generally

repackaged into smaller increments for the purpose of sales. . . . Generally what happens

is, [] a large amount is broken down into smaller increments. Typically, it’s [going] [to]

be cellophane. Latex is generally used as a packaging agent, and they’re made into

smaller bindles.”

Since cash is contraband within the prison, most payments for narcotic

transactions are made through electronic money transfers such as Western Union,

MoneyGram, or postal money orders. Officers often find pay-owe sheets, though

“[s]ome people prefer not to because they know that most correctional officers are

looking for that type of evidence when they find narcotics in the area, so they tend not to

keep it.” Drugs are typically broken down into one dose, which can be one gram,

4
0.5 gram, or even less. One gram is typically worth $200. Violence occurs with respect

to drug transactions when the purchaser fails to pay.

Vega opined, “[b]ased on the way it’s packaged right here, I would say it’s a good

indication that it’s trafficking.” The fact that no pay-owe sheets were found would not

change his opinion as to whether the marijuana was packaged for sale. The fact that

defendant tested negatively would support a conclusion he was selling and not using:

“It’s been my experience that that’s not uncommon . . . where a person that’s involved in

selling a controlled substance . . . does not . . . use that product; they just simply traffic it.

It would not have an impact on my decision.”

DISCUSSION

A. Sufficiency of the Evidence of Intent to Sell.

Defendant contends the evidence was insufficient to support his conviction of

possession of marijuana for sale, specifically with respect to his intent to sell. We

disagree.

“‘The standard of appellate review for determining the sufficiency of the evidence

is settled. On appeal, “‘we review the entire record in the light most favorable to the

judgment to determine whether it contains substantial evidence—that is, evidence that is

reasonable, credible, and of solid value—from which a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt.’ [Citation.]” [Citation.] In conducting

such a review, we “‘presume[ ] in support of the judgment the existence of every fact the

trier could reasonably deduce from the evidence.’ [Citation.]” [Citations.] “Conflicts

5
and even testimony which is subject to justifiable suspicion do not justify the reversal of

a judgment, for it is the exclusive province of the trial judge or jury to determine the

credibility of a witness and the truth or falsity of the facts upon which a determination

depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we

look for substantial evidence.” [Citation.]’” (People v. Harris (2013) 57 Cal.4th 804,

849.)

“‘Unlawful possession of a controlled substance for sale requires proof the

defendant possessed the contraband with the intent of selling it and with knowledge of

both its presence and illegal character. [Citation.]’ [Citations.] Intent to sell may be

established by circumstantial evidence. [Citation.]” (People v. Harris (2000)

83 Cal.App.4th 371, 374.) “‘In cases involving possession of marijuana . . . experienced

officers may give their opinion that the narcotics are held for purposes of sale based upon

such matters as the quantity, packaging and normal use of an individual; on the basis of

such testimony convictions of possession for purpose of sale have been upheld.

[Citations.]’ [Citation.] Thereafter, it is for the jury to credit such opinion or reject it.”

(Id. at 374-375.) Factors supporting intent to sell may also include the quantity of the

substance, its packaging, and the number of packages found. (People v. Dowl (2013)

57 Cal.4th 1079, 1089-1090.)

Here, Schmid found 25 bindles of marijuana enclosed in a latex glove hidden in

defendant’s underwear. The total weight of all the bindles was 13.2 grams. He testified

inmates typically use the fingers of latex gloves to package various drugs individually.

6
Such prepackaging is an indicator the drugs are possessed for sale. Vega testified

marijuana is generally repackaged into smaller, one dose increments or bindles of

0.5 gram to one gram in prison for the purpose of sales. Latex is generally used as a

packaging agent. One gram is typically worth $200 in prison. Vega opined the manner

in which the marijuana was packaged in this case was a good indication defendant

possessed the drugs for sales. Thus, substantial evidence supported the jury’s inherent

finding defendant possessed the marijuana with an intent to sell.

B. Romero Motion.

Defendant contends the court failed to exercise its discretion in declining to strike

seven of his eight prior strike convictions because it did not consider defendant’s

background, character, or prospects. We disagree.

“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to

review under the deferential abuse of discretion standard.” (People v. Carmony (2004)

33 Cal.4th 367, 374.) Under this standard, the defendant bears the burden of establishing

an abuse of discretion. In the absence of such a showing, the trial court is presumed to

have acted correctly. The appellate court may not substitute its judgment for that of the

trial court when determining whether the trial court’s decision to strike the prior was

proper. (Id. at pp. 376-377.) “‘[I]n ruling whether to strike or vacate a prior serious

and/or violent felony conviction allegation or finding under the Three Strikes law, on its

own motion, “in furtherance of justice” pursuant to . . . section 1385[, subdivision] (a), or

in reviewing such a ruling, the court in question must consider whether, in light of the

7
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.]” (Id. at p. 377.) “‘[W]here the record demonstrates

that the trial court balanced the relevant facts and reached an impartial decision in

conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we

might have ruled differently in the first instance’ [citation].” (Id. at p. 378.)

Here, the court indicated it had read the probation officer’s report. The probation

officer’s report contains a recount of defendant’s extensive and long-standing criminal

history, including true findings on felony juvenile allegations in 1983 of robbery,

attempted robbery, and possession of a sawed-off shotgun; conviction for misdemeanor

taking of a vehicle in 1985; conviction for two counts of felony receiving stolen property

in 1986; convictions for misdemeanor battery on a police officer and second degree

burglary later in 1986; and convictions for felony rape, forcible rape while acting in

concert with another, assault by means likely to cause great bodily injury, kidnapping,

false imprisonment, and oral copulation by acting in concert with force in 1991. During

defendant’s prior stint in prison, defendant had been granted parole and had that parole

revoked on three occasions. Defendant committed the instant offenses while serving a

49-year prison sentence for his last convictions.

8
 Defendant’s most recent convictions involved what the probation officer described

as a “horrendous sex crime.” Indeed, defendant’s immediate prior convictions resulted

from a situation in which he, with the help of another adult, hit a 15-year-old girl, drove

her to a remote location, raped her, drove to his apartment, threatened to kill her, raped

her again, threatened to bomb her residence if anyone reported the incident to the police,

and dropped her off at the mall the next day. The court responded to defendant’s second

Romero motion4 by stating “I can’t fathom how anyone could, with any degree of

intellectual honesty, conclude that [] [defendant] falls outside the spirit of the three-

strikes law . . . .” “I think this is the kind of conduct that the authors of the three-strikes

initiative, as well as the legislators who passed the corresponding legislative version, had

in mind when that law was drafted and ultimately passed.” “I do not conclude that []

[defendant] falls outside the spirit of three strikes, either in whole or in part.” The court

acted within due exercise of its discretion in denying defendant’s second Romero

motion.5

Defendant’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245, 1248

(Bishop) is misplaced. First, the Bishop court, in deferentially reviewing the trial court’s

act of striking two of the defendant’s prior strike convictions, upheld that exercise of

4 Defendant filed a pretrial Romero motion that was denied without prejudice.

5 “It is presumed that the trial court considered all relevant factors in denying [a]
[Romero] motion to strike. [Citation.] Based on the record presented, [defendant] makes
no showing that the trial court acted arbitrarily or abused its discretion. [Citation.]”
(People v. Pearson (2008) 165 Cal.App.4th 740, 749.)

9
discretion. Here, we deferentially review the court’s denial of defendant’s motions to

strike seven of eight of his prior strike convictions. As discussed above, the court

considered the proper criteria in ruling on defendant’s motions, and we may not substitute

our own judgment. (Id. at pp. 1250-1251; People v. Carmony, supra, 33 Cal.4th at

p. 377.) Second, Bishop predates People v. Williams (1998) 17 Cal.4th 148, and

consequently did not apply the appropriate standard: whether the defendant should be

deemed to fall outside the scheme’s spirit. “[T]he overwhelming majority of California

appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike

of those defendants with a long and continuous criminal career. [Citations.]” (People v.

Strong (2001) 87 Cal.App.4th 328, 338-339.)

C. Restitution Fine.

Defendant contends the trial court failed to exercise its discretion by ordering he

pay a $5,000 restitution fine. We hold defendant forfeited the issue by failing to object

below. In any event, we hold the court acted within its discretion in ordering the

restitution fine in the amount it did.

At the time defendant committed the offenses for which he was convicted,

section 1202.4, subdivision (b) read, “In every case where a person is convicted of a

crime, the court shall impose a separate and additional restitution fine, unless it finds

compelling and extraordinary reasons for not doing so, and states those reasons on the

record. [¶] (1) The restitution fine shall be set at the discretion of the court and

commensurate with the seriousness of the offense, but shall not be less than two hundred

10
dollars ($200), and not more than ten thousand dollars ($10,000), if the person is

convicted of a felony . . . .” (Former § 1202.4, subd. (b)(1).) “In setting a felony

restitution fine, the court may determine the amount of the fine as the product of two

hundred dollars ($200) multiplied by the number of years of imprisonment the defendant

is ordered to serve, multiplied by the number of felony counts of which the defendant is

convicted.” (Former § 1202.4, subd. (b)(2).)

“The court shall impose the restitution fine unless it finds compelling and

extraordinary reasons for not doing so, and states those reasons on the record. A

defendant’s inability to pay shall not be considered a compelling and extraordinary

reason not to impose a restitution fine. Inability to pay may be considered only in

increasing the amount of the restitution fine in excess of the two hundred-dollar ($200) or

one hundred-dollar ($100) minimum.” (Former § 1202.4, subd. (c).) We review a trial

court’s imposition of a restitution fine under section 1202.4 for abuse of discretion.

(People v. Lewis (2009) 46 Cal.4th 1255, 1321 [Imposition of $10,000 maximum

restitution fine not an abuse of discretion.].)

Defendant failed to object to the imposition of the fine or its amount below.

“[W]e conclude that a defendant who fails to contest the booking fee when the court

imposes it forfeits the right to challenge it on appeal.” (People v. McCullough (2013)

56 Cal.4th 589, 591.) Defendant cites People v. Pacheco (2010) 187 Cal.App.4th 1392

(Pacheco), in support of his argument the issue was not forfeited for failure to object;

however, the California Supreme Court expressly disapproved of Pacheco in People v.

11
McCullough, supra, 56 Cal.4th 589, 599, after he filed his opening brief. Thus,

defendant forfeited the issue on appeal.

Regardless, we hold the court acted in cognizance of its discretion to impose a

restitution fee in a lesser amount. The probation officer recommended imposition of a

restitution fine in the amount of $480. The court responded “I don’t know where they

came up with that – – he is to pay a restitution fine in the amount of $5,000 pursuant to

Section 1202.4 of the Penal Code.” The court ordered defendant pay a restitution fine in

the exact amount reflected by the formula permissibly prescribed by former section

1202.4, subdivision (b)(2). The court crossed out the $480 recommendation in the

probation officer’s report and wrote in the $5,000 amount it ordered. The court acted

within its recognized discretion.

Defendant maintains the court failed to act in recognition of its discretion to order

as little as $200 for the restitution fine because it found defendant unable to pay the

“court security fine or the criminal conviction assessments, or the criminal lab fee, or the

drug program fee.” However, although the court is required to strike the last two of the

aforementioned fees when it finds the defendant unable to pay, the same rule did not

apply to the restitution fine. (Former § 1202.4, subd. (c).) Although the court may have

reduced defendant’s restitution fine due to his inability to pay, it was not required to do

so. The court’s rejection of the probation officer’s recommendation of a $480 restitution

fine was indicative of its cognizance of its discretion to order a lesser amount than it did.

The court acted within its discretion.

12
 D. Abstract of Judgment and Sentencing Minute Order Errors.

Defendant observes that although the court found defendant unable to pay the

security fine, criminal conviction assessment, criminal lab fee, or drug program fee, the

sentencing minute order reflects the court struck all these fees and the abstract of

judgment indicates defendant’s obligation to pay the latter two fees. Since the former

two assessments are mandatory, the People contend the minute order must be corrected to

reflect imposition of these fees. The People agree the abstract of judgment must be

corrected to reflect the striking of the latter two fines. Defendant additionally notes that

although he was tried by a jury, the abstract of judgment reflects he was convicted by

court trial. We shall order the superior court to correct these errors.

“It is well settled that ‘[a]n abstract of judgment is not the judgment of conviction;

it does not control if different from the trial court’s oral judgment and may not add to or

modify the judgment it purports to digest or summarize. [Citation.]’ [Citation.] When

an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s

verbal pronouncement, this court has the inherent power to correct such clerical error on

appeal, whether on our own motion or upon application of the parties. [Citation.]”

(People v. Jones (2012) 54 Cal.4th 1, 89; People v. Myles (2012) 53 Cal.4th 1181, 1222,

fn. 14.)

“[I]t is well established that the appellate court can correct a legal error resulting in

an unauthorized sentence . . . at any time. [Citation.]” (People v. Sanders (2012)

55 Cal.4th 731, 743, fn. 13.) The court facilities assessment and criminal conviction fee

13
are mandatory and are not affected by a court’s finding of a defendant’s inability to

pay. (Govt. Code, § 70373; § 1465.8; People v. Woods (2010) 191 Cal.App.4th 269,

272-273.)

Here, the court incorrectly struck the mandatory court security fee and criminal

conviction assessment. Thus, we will order the superior court to correct the sentencing

minute order dated August 17, 2012, to reflect imposition of those fees.6 The abstract of

judgment incorrectly reflects imposition of the criminal lab and drug program fee,

although the court found defendant unable to pay those fees. Thus, we shall direct the

superior court to correct the abstract of judgment to so indicate. Finally, the abstract of

judgment incorrectly reflects defendant was found guilty pursuant to a court trial. We

will order the superior court to correct the abstract of judgment additionally to indicate

defendant’s trial was by jury.

DISPOSITION

The superior court is directed to modify defendant’s sentencing minute order

dated August 17, 2012, to reflect imposition of the $80 court security fee and $60

criminal conviction assessment. The superior court is additionally directed to correct

defendant’s abstract of judgment to remove imposition of the $50 lab fee and $100

drug program fee. Furthermore, the superior court is directed to correct the abstract of

judgment to reflect defendant’s conviction was by jury trial. The modified and

6 The abstract of judgment correctly reflects imposition of the fees.

14
corrected abstract of judgment and minute order shall be forwarded to the Department of

Corrections and Rehabilitation. In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:

RICHLI
J.

CODRINGTON
J.

15