Filed 2/28/13 P. v. Archuleta 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E054427
v. (Super.Ct.No. FWV1002489)
RUBEN ARCHULETA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs,
Judge. Affirmed.
Jennifer L. Peabody, 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, Peter Quon, Jr., and Lilia E.
Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION1
Defendant Ruben Archuleta participated in selling heroin to two undercover police
officers in September and October 2010. A jury convicted him of two counts of violating
Health and Safety Code section 11352, subdivision (a). The trial court found true five
prior strike allegations and three prior prison term allegations. (§§ 667, subds. (b)-(i);
667.5, subd. (b), and 1170.12, subds. (a)-(d).)
Pursuant to the Three Strikes law, the trial court sentenced defendant to 25 years
to life on count 1. On the other count and allegations, the court sentenced defendant to
consecutive terms totaling four years four months.
On appeal, defendant argues the trial court abused its discretion by not granting
defendant’s Romero2 motion and by refusing to order disclosure of juror information.
Defendant concedes his argument about presentence custody credit was decided in
People v. Brown (2012) 54 Cal.4th 314 and People v. Lara (2012) 54 Cal.4th 896
although he continues to raise the issue to preserve it for federal review. We reject
defendant’s other contentions and affirm the judgment.
1 All statutory references are to the Penal Code unless stated otherwise. 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2 II
STATEMENT OF FACTS
On September 8, 2010, Ontario Police Officers Maynor Arana and Jorge Galvez,
working undercover, bought drugs from Alfred Mandujano who offered to sell them
heroin and provided them with a telephone number.
A. Count 1
On September 17, 2010, Arana called Mandujano and said he wanted $20 worth of
“negra,” slang for heroin. Mandujano said to meet him at 613 North Holmes in Ontario.
Arana and Galvez dressed in plain clothes and drove an unmarked police car to the
address Mandujano had given them. Mandujano was waiting outside when they arrived.
Arana walked up to Mandujano and said he wanted $20 worth of heroin. Mandujano said
he did not have any heroin with him but he would call a friend to deliver some to the
house. Mandujano made a phone call and said his friend would be there shortly. Five to
10 minutes later, defendant arrived on a bicycle.
Arana gave Mandujano $20, which he handed to defendant, who gave Mandujano
two balloons and left on his bike. The officers took the balloons back to the police
department. Lab analysis determined the substances recovered weighed 0.07 grams and
0.13 grams and contained heroin.
3 B. Count 2
On October 8, 2010, Arana called Mandujano again and asked for $80 worth of
heroin. Mandujano told Arana to drive to his house and he would call a friend to have
him deliver the drugs. Arana and Galvez drove to the house and Galvez got out of the car
with Arana. Mandujano was standing in the side yard and Arana asked for $80 worth of
heroin. Mandujano said he was going to make a call and have his friend bring it to the
house. Defendant arrived on a bicycle. Mandujano handed defendant the money and
defendant put his hand in his mouth and spit out eight balloons, giving them to Arana.
There were seven orange balloons and one red balloon. Arana gave Mandujano the red
balloon at his request.
Galvaz and Arana took seven balloons back to the police station. The brown
substance inside two of the balloons weighed 0.12 grams and 0.10 grams and contained
heroin.
Thirty to forty-five minutes after the transaction, Officer Darryl Lauritzen arrested
defendant about a half a mile from 613 North Holmes. Defendant had $80 in cash. The
serial numbers on the money matched the $80 Arana used in the narcotics transaction.
Lauritzen checked the box on the booking form indicating defendant appeared extremely
intoxicated.
III
ROMERO MOTION
Defendant had five strike priors, four from a case in 1982 and a fifth from a 1990
case. In the current case, defendant was convicted of selling heroin worth $100 to
4 undercover police officers, a nonviolent, non-serious offense. After refusing to strike the
prior convictions, the court sentenced defendant to 25 years to life plus a consecutive
term of four years four months.
Defendant contends the trial court abused its discretion because defendant falls
outside the spirit of the Three Strikes law and the court should have stricken four of
defendant’s strikes and sentenced him as a second strike offender. Defendant argues the
current convictions were not serious or violent, were clearly a result of his lifetime
addiction to drugs, and occurred when defendant was no longer on parole. Defendant
also asserts his sentence constitutes cruel and unusual punishment under the
circumstances of this case.3
A. Standard of Review
The Three Strikes law requires a court to “consider 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) In addition to
the factors enumerated in Williams, discretion is limited by a requirement that a dismissal
be in the furtherance of justice. (Romero, supra, 13 Cal.4th at p. 530.) The interests of
3 As discussed in the parties’ supplemental briefing, defendant’s two convictions for attempted murder mean he may not be eligible for resentencing under Proposition 36, or the Three Strikes Reform Act of 2012, section 1170.126.
5 justice require consideration of the constitutional rights of the defendant and the interests
of society. The reasons for a dismissal must be such as would motivate a reasonable
judge. (Romero, at pp. 530-531.)
An appellate court reviews the trial court’s ruling on a Romero motion for an
abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373.) The abuse of
discretion standard is “deferential,” but “not empty.” (Williams, supra, 17 Cal.4th at p.
162.) It asks whether the ruling in question “‘falls outside the bounds of reason’” under
the applicable law and the relevant facts. (Ibid.; People v. Garcia (1999) 20 Cal.4th 490,
503.) When the balance of the evidence favors the defendant, “‘a trial court not only may
but should exercise the powers granted to him by the Legislature and grant a dismissal in
the interests of justice.’” (Carmony, at p. 375.) Only where the relevant factors
manifestly support the striking of a prior conviction and no reasonable minds could differ
does the failure to strike constitutes an abuse of discretion. (Id. at p. 378.)
B. Defendant’s History
Defendant has rotated in and out of prison for 30 years. In 1982, defendant
pleaded guilty to two counts of robbery and two counts of attempted murder for a total
sentence of 10 years. Defendant was paroled in November 1988. Two years later, in
October 1990, he pleaded guilty to assault with a deadly weapon and admitted that he
personally inflicted great bodily injury and was sent to prison for three years and paroled
in June 1992. In March 1995, defendant’s parole was revoked and he was returned to
prison to finish his term until he was discharged in November 1995. In May 1998,
defendant pleaded guilty to section 273.5 and was sentenced to eight years in prison and
6 paroled in May 2004. Defendant violated parole three times but was discharged from
parole in July 2009. He committed the current offenses in September and October 2010.
C. The Romero Motion
Defense counsel moved to dismiss defendant’s strike priors pursuant to section
1385 and Romero. Defense counsel argued that defendant fell outside the spirit of the
Three Strikes law because of the minor nature of the current offenses; the fact that the
four 1982 convictions arose out of a single case when he was 19 or 20 years old; his
relatively mature age of 47, making him less likely to return to violence; his lifetime
struggle with drugs; and the alternative of a lengthy sentence which would also punish
defendant for his prior offenses and his current offenses. Defendant was also a caretaker
for his diabetic and disabled mother, grocery shopping, paying bills, and obtaining her
medication. Defendant had played baseball in his youth, attended community college,
and worked at a trucking company. Defendant was enrolled in a substance abuse
program from October 2009 through March 2010, shortly before the underlying crime.
The prosecutor countered that defendant should be sentenced as a third strike
offender because of his criminal history and recidivism. According to the prosecution,
“[M]any of Defendant’s crimes are those of moral turpitude, he has shown a history of
being a violent criminal who is a danger to society. This is precisely the type of recidivist
criminal the Three-Strike laws is [sic] meant to punish.”
The court noted defendant’s evidence indicating that he had sought treatment for
his drug abuse between October 2009 and February 2010. The court also reviewed
defendant’s prior convictions. In denying defendant’s Romero motion, the court
7 observed that “in light of the nature and circumstances of his present felony and prior
felony convictions and the particulars of his background, character, and prospects, that
the defendant may not be deemed outside the scheme or spirit, in whole or in part.” The
court granted defendant’s request to strike defendant’s priors as to count 2 only but did
not strike any of the priors related to count 1. In its decision, the court noted that the
underlying crime was not serious or violent. The court noted that the only victim of the
case was the State of California. While recognizing that defendant would not be eligible
for parole until age 72, the court expressed concern that defendant had been imprisoned
for 22 of the past 28 years. On count 1, the court sentenced defendant to 25 years to life.
On count 2, defendant was sentenced to a consecutive term of four years four months for
the three prison term priors found true.
D. Analysis
Defendant relies on several cases to argue the trial court abused its discretion. In
Williams, the California Supreme found an abuse of discretion in dismissing strike priors
because the defendant’s current conviction was his fourth recent driving under the
influence conviction and he had numerous prior convictions of crimes which involved
actual violence. (People v. Williams, supra, 13 Cal.4th at p. 164.)
In contrast to Williams, the California Supreme Court in Garcia, found the trial
court properly exercised its discretion in vacating the defendant’s prior serious felony
strikes in the interest of justice because the defendant’s prior convictions all arose from a
single period of aberrant behavior, he cooperated with police, his crimes were related to
drug addiction, and his criminal history did not include any actual violence.
8 Cumulatively, these circumstances indicated the defendant could be deemed outside the
spirit of the Three Strikes law, at least “in part.” (People v. Garcia, supra, 20 Cal.4th at
p. 503.)
In People v. Bishop (1997) 56 Cal.App.4th 1245, the Court of Appeal found that
when a present crime is minor and the past offenses are remote “it presents the trial court
with an opportunity to evaluate factors such as how long the state maintains an interest in
keeping the defendant as a public charge and after what period of incarceration he is no
longer likely to offend again.” (Id. at pp. 1250-1251.)
Finally, in People v. Strong (2001) 87 Cal.App.4th 328, the trial court cited the
defendant’s advanced age and the fact that the violent felony conduct was out of
character for the defendant as reasons for striking the strike. (Id. at p. 334.) The Court of
Appeal found that the trial court had abused its discretion for a defendant with a three-
year-old prior violent conviction and the defendant appropriately came within the Three
Strikes regime, causing his sentence to be doubled as a second strike. (Id. at pp. 341,
343, 347.)
In this case, we acknowledge that the sale of $100 worth of heroin to undercover
officers is a nonviolent, non-serious, victimless crime and, with his current sentence of 29
years to life, defendant may be at least 70 years old before he is eligible for parole. Even
if the trial court had granted defendant’s Romero motion and sentenced him as a second
striker, he would still be facing a potential sentence of more than 15 years. Additionally,
the record shows a history of heroin addiction and that defendant was likely selling
heroin to support himself and his mother.
9 Nevertheless we cannot conclude the relevant factors manifestly support striking
defendant’s strike priors and sentencing him as a second strike offender. (People v.
Carmony, supra, 33 Cal.4th at p. 378.) The remoteness of defendant’s 1982 offenses is
offset by defendant leading a continuous life of crime for almost 30 years. (People v.
Humphrey (1997) 58 Cal.App.4th 809, 813.) Because defendant is a career criminal, his
age should not constitute a mitigating factor. Nor is defendant’s sentence of 29 years to
life a violation of the Eighth Amendment against cruel and unusual punishment or the
Fourteenth Amendment. (Ewing v. California (2003) 538 U.S. 11; Lockyear v. Andrade
(2003) 538 U.S. 63.)
Based on defendant’s recidivism and likely future conduct, the trial court did not
abuse its discretion in denying defendant’s Romero motion as to count 1 The trial court’s
decision was not so irrational or arbitrary that no reasonable judge could agree with it.
(Romero, supra, 13 Cal.4th at p. 530; People v. Carmony, supra, 33 Cal.4th at p. 377.)
IV
DISCLOSURE OF JUROR INFORMATION
Defendant contends that because potential juror misconduct or witness tampering
occurred, additional investigation was necessary and the trial court’s refusal to find that
defendant established good cause for disclosure of juror information violated his rights to
a fair trial and impartial jury under the federal and state Constitutions.
A. Relevant Background
After the verdict, the jury foreperson revealed that, during the trial, she saw the
investigating officer, Detective Jimenez, seated next to the prosecutor at counsel table,
10 coaching the testifying witness, Corporal Arana by mouthing the word “no.” Defense
counsel sought the foreperson’s information to get more details as to what the juror had
observed. The court requested a transcript of Arana’s testimony for review.
The court reviewed the defense motion to unseal the information (Code Civ. Proc.,
§ 237), the prosecution’s opposition, and the transcript of Arana’s testimony, highlighting
each question to which Arana responded “no.” Defense counsel argued that, because the
case against defendant was based on the credibility of the various Ontario police officers
involved in the controlled buy, the veracity of the witnesses was the cornerstone of the
case against defendant. Defense counsel argued further that juror misconduct had
occurred when the foreperson failed to come forward to report the conduct between the
police officers during Arana’s testimony. If the foreperson had told the court about her
observations, defense counsel could have made a motion for a mistrial and the issue
could have been addressed when all the parties were still available. The prosecutor
argued there was no juror misconduct as the foreperson was under no obligation to
disclose what she had observed.
The court commented that the jurors had been instructed to interpret any behavior
by a witness and factor it into their analysis of credibility. (CALCRIM Nos. 105 and
226.) The court asked whether it was accurate that the foreperson had indicated she saw
the communication, considered it, and it did not change her mind. The prosecutor
confirmed that was her recollection of the juror’s statements and defense counsel could
not remember. The court also observed that defense counsel had argued in closing that
the testifying officers were not credible. Thus, in finding defendant guilty, the jury must
11 have found the officers to be credible and the jury had been polled without expressing
any reservations. The court found that release of the juror information was not warranted
and further inquiry amounted to a “fishing expedition” which did not outweigh the strong
public interest in juror privacy. The court reviewed the transcript of Arana’s testimony
and determined that every time he answered “no” it was not to a question that would have
had any significant effect on the outcome of the case. The court also denied defendant’s
subsequent motion for new trial.
B. Application of Applicable Law
To investigate the fairness and impartiality of a jury, after a verdict, disclosure of
juror information is governed by sections 206 and 237 of the Code of Civil Procedure.
Subdivision (g) of Code of Civil Procedure section 206 permits a defendant or his
attorney to petition the court for access to juror information “for the purpose of
developing a motion for new trial or any other lawful purpose.” (People v. Granish
(1996) 41 Cal.App.4th 1117, 1125.)
Pursuant to Code of Civil Procedure section 237, subdivision (a)(1), the names of
jurors are to be made available to the public, unless the court determines that a
“compelling interest” requires the information be kept confidential. (People v Jefflo
(1998) 63 Cal.App.4th 1314, 1320.) Pursuant to subdivision (b) of Code of Civil
Procedure section 237, a hearing on a request for juror information, such as addresses and
telephone numbers, shall be held pursuant to the procedures set forth in subdivisions (c)
and (d) of section 237 if the requesting party makes a prima facie showing of good cause
for disclosure and the record does not establish a “compelling interest” against disclosure.
12 (Jefflo, at p. 1320; People v. Granish, supra, 41 Cal.App.4th at p. 1125.) A defendant in
a criminal case is entitled to jurors’ addresses and telephone numbers “if the defendant
sets forth a sufficient showing to support a reasonable belief that jury misconduct
occurred, that diligent efforts were made to contact the jurors through other means, and
that further investigation is necessary to provide the court with adequate information to
rule on a motion for new trial.” (People v. Rhodes (1989) 212 Cal.App.3d 541, 551-552.)
If the court does not order a hearing, the court is required to state, in a minute
order, its reasons for not ordering a hearing and to make express findings either of the
lack of a prima facie showing of good cause or the existence of a compelling reason
against disclosure. (Code Civ. Proc., § 237, subd. (b).) These statutory provisions
require the court to balance the jurors’ interest in privacy against the “‘strong public
interest in the ascertainment of the truth in judicial proceedings.’” (People v. Rhodes,
supra, 212 Cal.App.3d at p. 549; People v. Jefflo, supra, 63 Cal.App.4th at p. 1321, fn. 8;
People v. Carrasco (2008) 163 Cal.App.4th 978, 990; People v. Granish, supra, 41
Cal.App.4th at p. 1126, People v. Rhodes, supra, 212 Cal.App.3d at pp. 549-550.) Denial
of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed under the
abuse of discretion standard. (People v. Jones (1998) 17 Cal.4th 279, 317.)
Defendant contends he deserved to have a hearing to establish what exactly the
foreperson saw and how she incorporated her observations into the jury’s deliberations.
In failing to find good cause and holding a hearing to investigate, thereby denying
defendant’s request for the juror information on the prejudicial impact of a claim of juror
misconduct that was not yet ripe, the court abused its discretion.
13 Here, however, the trial court acted within its discretion when it denied the
defense motion to disclose the jurors’ information because the trial court made an express
finding of the lack of a prima facie showing of good cause. The trial court determined
that the foreman did not share her observations with the other jurors and there was no
indication whatsoever that it affected her decision or the verdict. Furthermore, additional
investigation would have constituted a “fishing expedition” invading juror privacy.
Under these circumstances, the trial court did not abuse its discretion in denying the
defense motion for disclosure.
V
DISPOSITION
The trial court did not abuse its discretion in denying the defense motion for
disclosure of juror information or in denying defendant’s Romero motion. We affirm the
judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.