P. v. McMahon

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Filed 5/31/07 P. v. McMahon CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
BRIAN THOMAS McMAHON,
Defendant and Appellant.
A114149
(Lake County
Super. Ct. No. CR905358)
Brian Thomas McMahon appeals his conviction by jury verdict of one count of
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count
of possession of a hypodermic needle and syringe. (Bus. & Prof. Code, § 4140.) In a
bifurcated proceeding, the court found true the allegation that he had served three prior
prison terms. (Pen. Code, § 667.5, subd. (b).) Appellant contends his attorney’s failure to
move to suppress the contraband constituted ineffective assistance of counsel. He also
asserts three sentencing errors: (1) improper dual use of facts; (2) failure to consider his
drug addiction as a factor in mitigation; and (3) imposition of an upper term contrary to
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
BACKGROUND
Clearlake Police Officer Dominic Ramirez was on patrol in his marked police car
when he pulled alongside appellant, who was walking along a city street. Officer
Ramirez rolled down his passenger window and asked appellant how he was doing and
where he was headed. Appellant replied, “Fine,” and that he was en route to babysit for a

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friend. During the conversation Officer Ramirez asked if appellant had anything on his
person he should not have. Appellant replied that he had a knife in his right front jacket
pocket. The following colloquy occurred during Ramirez’s direct examination.
“Q. Now, when he shared that information with you, did you ask him if you could
check that out?
“A. Yes, I did.
“Q. You asked him, basically, if you could search his person?
“A. Yes.
“Q. And did he give your permission to do that?
“A. Yes, he did.”
Ramirez got out of his squad car and conducted his search while appellant was
standing alongside the right front fender. For his own safety Ramirez started his search
with the jacket pocket, where appellant had said the knife would be. He found the knife
and removed it. “For officer safety reasons, I wanted to make sure to get ahold of that . .
. And then I just stayed with the right pocket, and that’s where I found a hypodermic
syringe.” The syringe had an attached needle. Ramirez then asked appellant if he was a
diabetic; appellant replied, “No.” When Ramirez asked appellant how he knew the knife
but not the syringe was in the pocket, appellant did not respond. He offered that the
jacket was not his, but he did not say where he got it. He also volunteered that he used
the syringe for “blowing up worms” when fishing. During the search Ramirez told him
he was under arrest for possession of the hypodermic syringe.
Immediately before Officer Ramirez placed handcuffs on appellant he noticed a
plastic baggie lying on the ground between appellant’s feet. He had not seen it when he
first left his car to walk over to appellant. It was situated in such a way that he believed
he would have seen it had it been in the same position when he first contacted appellant.
As he walked over to appellant he had paid special attention to the ground in appellant’s
vicinity because, in his experience, “people will drop things, discard things.” He
considered the baggie was significant because of the hypodermic syringe; based on his
professional experience and training a baggie usually indicates methamphetamine use.

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Ramirez retrieved the baggie; it contained a hard, semi-clear, crystal-like substance
which, based on his experience, appeared to be methamphetamine.
After retrieving the baggie, Officer Ramirez continued his search of appellant. He
found another syringe in appellant’s right front pants pocket and a small muslin bag
containing a spoon in his right rear pants pocket. The underside of the spoon bowl was
discolored as if it had been burned, and the topside of the spoon bowl contained a hard
crystal-like substance. The appearance of the spoon was consistent with its use for the
preparation of methamphetamine crystals for injection.
Officer Ramirez subsequently weighed the contents of the baggie; it weighed .2
grams, which he considered a usable quantity.
Samantha Evans, a criminalist with the California Department of Justice, Bureau
of Forensic Services, to which the baggie and its contents were sent, determined that the
substance was a usable amount of methamphetamine.
The parties stipulated that appellant was familiar with methamphetamine and
knew its nature and character as a controlled substance.
DISCUSSION
I. Ineffective Assistance of Counsel
Appellant contends he received ineffective assistance of counsel because defense
counsel failed to move to suppress the contraband.
A criminal defendant’s constitutional right to assistance of counsel means
effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To show
ineffective assistance, the defendant must show (1) counsel’s performance was deficient
because his or her representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) absent counsel’s substandard performance, there is
a reasonable probability the defendant would have obtained a more favorable result.
(People v. Wharton (1991) 53 Cal.3d 522, 575.)
When a defendant asserts ineffective assistance of counsel due to counsel’s failure
to assert a Fourth Amendment unreasonable search-and-seizure claim, he must prove that
such a claim was meritorious and there is a reasonable probability the verdict would have

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been different without the excluded evidence. (Wharton, supra, 53 Cal.3d at p. 576.)
Appellant asserts three reasons that a motion to suppress evidence of the hypodermic
syringe found in his jacket pocket would have been granted.
First, appellant contends his consent to search was invalid because it was given in
submission to Officer Ramirez’s show of authority: as a convicted felon and drug addict
in a small town confronted by a police officer, he did not reasonably feel free to leave.
Accordingly, he reasons, the stop was in fact a “detention,” and consent given during a
detention is involuntary.
There is no constitutional proscription against an officer addressing questions to a
person on the street. (People v. Bennett (1998) 68 Cal.App.4th 396, 401-402.) Officers
have the same liberty to address questions as do any other citizen. (Id. at p. 402.) At the
same time, the person addressed generally has an equal right to ignore the interrogator
and walk away. (Ibid.) “‘As long as the person to whom questions are put remains free to
disregard the questions and walk away, there has been no intrusion upon that person’s
liberty or privacy as would under the Constitution require some particularized and
objective justification.’ [Citations.]” (Ibid.) A Fourth Amendment seizure does not occur
merely because an officer approaches a person and asks a few questions. “‘So long as a
reasonable person would feel free “to disregard the police and go about his business,”
[citation] the encounter is consensual and no reasonable suspicion is required. The
encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual
nature . . . . Only when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a [person] may we conclude that a ‘seizure’ has
occurred.”’ [Citation.]” (Ibid.)
It is difficult to construe Officer Ramirez’s encounter with appellant as anything
other than classically consensual. Officer Ramirez did nothing during his initial contact
to restrain appellant’s liberty. He simply pulled his car over to appellant, exchanged
some pleasantries, and asked if appellant had anything on his person he should not have.
Nothing on this record suggests Officer Ramirez made his inquiries in other than a
friendly, courteous tone of voice, applied any physical force or threat of physical force

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during the encounter, or did anything to stop appellant from walking away without
responding. Instead, for reasons known only to himself, appellant volunteered that he
had a knife in his right front jacket pocket and agreed that Ramirez could “check that
out.” An individual’s decision to cooperate with a police officer need only be
consensual; it need not be intelligent or wise from the defendant’s viewpoint. (Bennett,
supra, 68 Cal.App.4th at p. 403, fn. 7.) If, in hindsight, appellant’s decision to reply to
Officer Ramirez’s inquiries was a mistake, it was one for which he was responsible.
Appellant next contends Officer Ramirez had consent only to retrieve the knife.
The People have the burden of proving a warrantless search was within the scope of the
consent given. (People v. Harwood (1977) 74 Cal.App.3d 460, 466.) “‘The authority to
search pursuant to a consent must be limited to the scope of the consent.’” (Ibid., quoting
People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127.)
The standard for measuring the scope of consent under the Fourth Amendment is
“objective reasonableness”--what would the typical reasonable person have understood
by the exchange between the officer and the defendant? (People v. Crenshaw (1992) 9
Cal.App.4th 1403, 1408.) The scope of a warrantless search is generally defined by its
expressed objective. Whether the search remained within the boundaries of the consent is
a question of fact to be determined from the totality of the circumstances. (Ibid.)
Officer Ramirez testified that after appellant said he had a knife in his right front
jacket pocket, he asked appellant if he could “check that out . . . basically, if [I] could
search his person[.]” Describing the search procedure, Ramirez testified that he “first
started with the right jacket pocket, where [appellant] told me where the knife was,” and
after finding the knife there, “then I just stayed with the right pocket.” (Italics added.)
Based on this testimony, a reasonable person would understand that the objective of
Officer Ramirez’s search was appellant’s person in general and that appellant had given
Officer Ramirez such permission. He had not limited the scope only to search for the
knife.
Finally, appellant contends Officer Ramirez had no reason to believe that the
hypodermic syringe was a weapon, and therefore had no right to seize it. We disagree.

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We reiterate that appellant consented to Officer Ramirez’s search of his person. While so
doing, Officer Ramirez located the syringe with a needle in the same jacket pocket as the
knife. A reasonable person, and particularly a prudent officer, could believe a
hypodermic needle and syringe could readily be employed as a weapon to inflict harm to
another person in the immediate vicinity of the possessor of the syringe. (See People v.
Autry (1991) 232 Cal.App.3d 365, 369.) Under the circumstances, Officer Ramirez’s
seizure did not exceed the scope of the consent to search.
We conclude that the trial court would have denied a motion to suppress on
appellant’s proffered grounds. Our conclusion is bolstered by a description of the
encounter made by the trial court at sentencing: “The evidence shows that on June 16th
[appellant] was walking along a street in Clearlake when a police officer made a
consensual contact.” It follows that defense counsel was not ineffective for failing to
make the motion. (Wharton, supra, 53 Cal.3d at p. 576.)
II. Sentencing
Appellant was sentenced to a total prison term of six years: the upper term of three
years on count one, possession of methamphetamine, a concurrent term of 120 days on
count two, possession of a hypodermic syringe, and three one-year terms for three prior
prison terms, pursuant to Penal Code section 667.5, subdivision (b).
As factors in aggravation to impose the upper term the court stated: “By way of
aggravation he has a prior criminal record which has been outlined and of course his prior
performance on parole as stated before was abysmal in consideration of these at least 17
parole violations.” The “outline” to which the court referred was its enumeration of
appellant’s prior convictions recited in conjunction with its conclusion that appellant was
ineligible for parole. These prior convictions consisted of a 1997 felony conviction for
possession of methamphetamine, a 1987 conviction for felony prisoner possession of a
weapon and felony possession of a dangerous weapon, and a 1982 felony conviction for
assault with a deadly weapon and a 2004 misdemeanor conviction for being under the
influence of methamphetamine and a 1994 misdemeanor conviction of possession of a
syringe. The present offense took place in June 2005.

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The court found no factors in mitigation, nor did the presentence report identify
any.
Appellant served prison terms for the 1997, 1987, and 1982 felony convictions.
These prison terms were the basis of the court’s three one-year enhancements pursuant to
Penal Code section 667.5, subdivision (b).
Appellant asserts three sentencing errors: (1) improper dual use of the same facts
to impose the upper term (Pen. Code, § 1170, subd. (b)), and to enhance his sentence by
imposition of a one-year enhancement for each of his three prior prison terms (§ 667.5,
subd. (b)); (2) failure to consider his drug addiction as a circumstance in mitigation; and
(3) Blakely error by imposing an upper term based on the court’s findings of prior
convictions and appellant’s “abysmal” performance on parole.
a. Dual Use of Facts
A court may not use the same fact on which an enhancement is based to impose an
aggravated term. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) Here, the court
specifically expressed that it had not relied on the fact of appellant’s prior prison terms in
selecting the base term. Indeed, the court did not refer to his prison terms in reciting the
factors in aggravation; it referred to his “prior criminal record” and “his prior
performance on parole [which] as stated before was abysmal in consideration of these at
least 17 parole violations.”
Of course, there can be no prior prison term without a criminal record. But
appellant’s prior criminal record encompassed offenses for which he did not serve a
prison term. Moreover, the court also gave as a factor in aggravation his “abysmal”
parole performance. Imposition of an aggravated term may be sustained on a single valid
factor. (People v. Osband (1996) 13 Cal.4th 622, 728.) Because the court employed two
other valid factors--“abysmal” performance on parole and non-prison term criminal
history--there was no dual use of facts. We do not find error.
b. Mitigating Circumstances
When imposing sentence, the court may consider as a circumstance in mitigation
the fact that a defendant was suffering from a mental or physical condition that

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significantly reduced his culpability for the crime. (Cal. Rules of Court, rule 4.423(b)(2).)
Alcoholism and drug addiction may be regarded as a “mental or physical condition”
(People v. Reyes (1987) 195 Cal.App.3d 957, 963), and at least one decision has deemed
alcoholism, under the particular circumstances of that case, a mitigating factor under this
rule. (People v. Simpson (1979) 90 Cal.App.3d 919, 927.) However, the large majority of
decisions have affirmed the trial court’s rejection of substance abuse or addiction a
circumstance in mitigation. (See Reyes, supra, 195 Cal.App.3d at p. 961, fn. 2.)
While a court is required to consider all relevant criteria enumerated in the rules
for sentencing (Cal. Rules of Court, rule 409), it is not required to give reasons for
rejecting a mitigating factor. (People v. Reid (1982) 133 Cal.App.3d 354, 371.) The court
here was aware of appellant’s drug addition. At the sentencing hearing it stated that it
had read and was familiar with the probation report, which had noted appellant’s
“demonstrated history of substance abuse.” The court also recited appellant’s written
statement to the probation officer in which appellant stated that since 1987 “all I’ve had
is simple drug use. This time I don’t see how prison will Help. [sic]. What I really need
is a drug program please.”
Appellant was 48 years old at the time of the present offense. He had a long
history of drug abuse and drug-related offenses. His age and history reasonably imply he
can not or will not deal with this problem. Officer Ramirez did not observe any objective
symptoms of appellant’s being under the influence when he encountered him. Given
these facts, the court, having impliedly considered appellant’s addiction, did not err in
rejecting it as a factor that reduced his culpability for the instant offenses. (See Reyes,
supra, 195 Cal.App.4th at pp. 963-964; Reid, supra, 133 Cal.App.3d at p. 371.)
c. Blakely
In Blakely, the United States Supreme Court elaborated on a rule established in
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which held that a criminal
defendant’s Sixth Amendment right to jury trial “proscribes a sentencing scheme that
allows a judge to impose a sentence above the statutory maximum based on a fact, other
than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]”

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(Cunningham v. California (2007) ___U.S. ___; 127 S.Ct. 856 (Cunningham).) The
relevant “statutory maximum” is not the maximum sentence a trial court may impose
after finding additional facts, but the amount it may impose without any additional
findings. (Blakely, supra, 542 U.S. at pp. 303-304.)
Subsequent to Blakely, People v. Black (2005) 35 Cal.4th 1238 held that
California’s Determinate Sentencing Law (DSL) (Pen. Code, § 1170) does not implicate
a defendant’s Sixth Amendment right to a jury trial. Black was extant at appellant’s June
2006 sentencing hearing, although appellant argued that Blakely should apply to his
sentencing, and the court acknowledged that the issue in Black was pending in federal
court.
The United States Supreme Court has since held that the California’s DSL violates
a defendant’s constitutional right to jury trial, overruling Black. (Cunningham, supra, 127
S.Ct. at pp. 860, 871.) Cunningham deemed the middle term prescribed for an offense in
the DSL as the relevant “statutory maximum.” Therefore, it held, because the DSL
authorized the court to find aggravating factors by a preponderance of the evidence
standard, it violated Blakely and Apprendi.1 (Cunningham, at p. 860.)
As discussed, the court imposed the upper term based on the two factors of
appellant’s “prior criminal record” and his poor performance on parole. As we have
noted, the “criminal record” factor included misdemeanor convictions in addition to the
1 Following Cunningham, the Legislature amended Penal Code section 1170 with the
specific intent to respond to the Cunningham decision and “to maintain stability in
California’s criminal justice system while the criminal justice and sentencing structures
in California are being reviewed. (Stats. 2007, ch. 3, Sen. Bill No. 40, enacted Mar. 30,
2007.) The Legislature declared that the amended statute would take effect immediately
as an emergency statute.
Prior to Cunningham, Penal Code section 1170, subdivision (b) stated: “When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall order imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.”
As amended, Penal Code section 1170, subdivision (b) now states: “When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the choice of the appropriate term shall rest within the sound discretion of the court.”
(Italics added.)

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three prior felony convictions for which appellant served a prison term. “Prior
convictions,” for Apprendi/Blakely/Cunningham purposes, are not limited to felonies;
nothing in these opinions states that a misdemeanor is not also a recidivist fact exempted
from the requirement that a defendant is entitled to have the jury find all facts necessary
for imposition of a punishment above the statutory maximum.
However, the other factor employed by the court, “abysmal parole performance,”
although related to recidivism, requires a finding beyond the bare fact of a prior
conviction. Under Cunningham the court could not employ this fact to aggravate a
sentence absent a jury finding or appellant’s admission.
We cannot conclude on this record that the sentence was harmless beyond a
reasonable doubt. (See Washington v. Recuenco (2006) ___U.S. ___; 126 S.Ct. 2546,
2550, 2553 [Blakely error not structural error]; People v. Sengpadychith (2001) 26
Cal.4th 316, 320: Apprendi error governed by the harmless error standard of Chapman v.
California (1967) 386 U.S. 18.) Based on the court’s remarks at sentencing wherein it
placed heavy emphasis on the factor of appellant’s parole performance, it appears the
court impermissibly imposed the aggravated sentence in violation of our highest court’s
subsequent holding in Cunningham. We cannot say the court would have imposed an
aggravated sentence based solely on the convictions encompassed in appellant’s “prior
criminal record”--the court’s other aggravating factor--for which he did not serve a prison
term. (See pp. 9, 10, post.)

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DISPOSITION
The judgment is reversed and remanded with directions to resentence appellant
pursuant to the holding of Cunningham v. California, supra, 127 S. Ct. 856. In all other
respects the judgment is affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Simons, J.
________________________
Gemello, J.

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