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APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed. Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Victoria B. Wilson, and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent. The jury convicted defendant Demarais Jones of manufacturing a controlled substance and possession of cocaine base and marijuana for sale. (Health & Saf. Code, §§ 11379.6, subd. (a) (count 1), 11351.5 (count 2), 11359 (count 3).) The jury also found true the weapons allegations in counts 1-3. (Pen. Code, §§ 12022, subd. (c) (counts 1 & 2), 12022, subd. (a)(1) (count 3).)[1] Defendant contends on appeal that there were instructional and sentencing errors, and that his presentence work and conduct credits must be recalculated under the recent amendment to section 4019. For the reasons that follow, we affirm. On August 3, 2006, sheriff’s deputies executed a search warrant at an apartment in Palmdale (the apartment). During the search, deputies seized the weapons, drug manufacturing equipment, cocaine base, and marijuana that were the bases of the allegations in counts 1-3. Defendant, who was not present during the search, was linked to the apartment and the items that were seized during the search by the following evidence: (1) defendant’s wallet and identification were found next to a loaded .357 revolver in a bedroom; (2) in the same bedroom, a radio was playing music and a police scanner was tuned to sheriff’s department’s frequencies, which suggested that defendant had fled immediately before the search began; (3) defendant’s palm print was found on one of three glass measuring cups used to manufacture cocaine base; and (4) all of the paperwork found in the apartment (e.g., mail, a citation, a collection agency bill, a towing invoice) listed only one name, defendant’s, and the address of the apartment, which indicated that defendant was the sole occupant of the apartment. Deputy Sheriff Carlos Arellano testified that for several years before the search, he had regularly seen defendant four to five times a week, day and night, either in front of or across the street from the apartment complex, and that defendant’s car was either in the rear carport or front parking area of the complex. Although defense witness Michael Turner testified that the apartment had remained abandoned after defendant moved out one year ago, his testimony was contradicted by the fact that some of the paperwork in the apartment with defendant’s name and address were dated as recently as July 2006, only a month before the search. Given that defendant does not challenge the sufficiency of the evidence to support his conviction on counts 1-3, we will reserve our discussion of other relevant evidence for the sections that follow. I. Instructional Error and Ineffective Assistance The jury was instructed that it could convict defendant either as a perpetrator or as an aider and abettor to the crimes alleged in counts 1-3. Defendant contends that the trial court erred in giving the aiding and abetting instructions. (CALCRIM Nos. 400 and 401.)[2] Given that defendant does not challenge the sufficiency of the evidence to support his conviction as a perpetrator, it is unclear how the aiding and abetting instructions could have caused any conceivable prejudice. In any event, defendant argues that his trial counsel’s failure to object to the aiding and abetting instructions did not result in a forfeiture of the issue on appeal because the instructions affected his substantial rights. (Citing People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Alternatively, he argues that if the issue was forfeited, his trial counsel was constitutionally ineffective. (Citing In re Jones (1996) 13 Cal.4th 552, 559; Strickland v. Washington (1984) 466 U.S. 668, 684.) In light of these contentions, we will address the merits. A trial court has a duty to instruct the jury on all general principles of law that are relevant to the issues raised by the evidence, even without a formal request by the defendant. (People v. Avila every theory of the case, but only to the extent each is supported by substantial evidence.’ [Citation.]” (People v. Flannel (1979) 25 Cal.3d 668, 685.) “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive. [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) In this case, the disputed instructions were relevant to issues raised by the evidence. Susan Perez, a criminalist, testified that all three glass measuring cups that were found in the apartment contained cocaine base. Robert Webber, a forensic identification specialist, testified that of the four prints that he found on the three glass measuring cups, he was able to match only one to defendant and could not identify the other three prints. Defense witness Michael Turner testified that, on the night before the search, he and a companion named Cece had used the apartment to smoke crack cocaine and “primos, which is cocaine and marijuana mixed together.” Turner testified that Cece had made the crack cocaine with the supplies that she had brought to the apartment (the glass measuring cups, beaters, jars, and scale). Given that defendant’s print was found on one of the glass measuring cups that, according to the defense theory, Cece had brought to the apartment, the evidence reasonably supported an inference that defendant had allowed Turner and Cece to use the apartment to manufacture cocaine base. Accordingly, the trial court did not err in giving the aiding and abetting instructions, and defense counsel was not ineffective in failing to object. II. Sentencing Errors Defendant received a prison sentence of 11 years and 8 months, consisting of the following: (1) on count 1 (manufacturing cocaine base), defendant received the upper base term of seven years, plus a consecutive four-year middle term enhancement under section 12022, subdivision (c); (2) on count 2 (possession of cocaine base for sale), defendant received a concurrent upper term of five years, plus a concurrent four-year middle term enhancement under section 12022, subdivision (c); and (3) on count 3 (possession of marijuana for sale), defendant received a consecutive eight-month term (one-third the middle term of two years), and a concurrent one-year enhancement under section 12022, subdivision (a)(1). Although “[o]nly a single aggravating factor is required to impose the upper term” (People v. Osband (1996) 13 Cal.4th 622, 728), in this case the trial court cited three aggravating factors: (1) the defendant was armed (Cal. Rules of Court, rule 4.421(a)(2)); (2) the crime was carried out in a manner that indicated planning, sophistication, or professionalism (id., rule 4.421(a)(8)); and (3) the crime involved a large quantity of contraband (id., rule 4.421(a)(10)). Defendant challenges each of the three factors. A. Defendant Was Armed Defendant contends that the fact that he was armed was improperly used both to impose the upper term and to enhance the sentence. The Attorney General concedes that this was error. (§ 1170, subd. (b) [“[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed”]; Cal. Rules of Court, rule 4.420(c); People v. Smith (1980) 101 Cal.App.3d 964, 966-967.) However, the Attorney General argues that the error was not prejudicial and resentencing is unnecessary because it is not reasonably probable that the trial court, had it realized its error, would have imposed a more lenient sentence. (People v. Osband, supra, 13 Cal.4th at p. 728 [improper dual use of the same fact to impose both an upper term and an enhancement does not require resentencing if it is not reasonably probable that a more favorable sentence would have been imposed without the error].) We agree. The court exercised its discretion and imposed a consecutive sentence for count three. Thus, we see no reasonable likelihood the court would have declined to select the upper term if it had two, instead of three, aggravating factors upon which to rely. Defendant contends that the evidence failed to show there was any planning, sophistication, or professionalism beyond what is inherent in the crime of manufacturing cocaine base for sale. In response, the Attorney General argues that “[i]n addition to the items that were used to manufacture cocaine base, police discovered a heavily fortified front door, two pit bulls, two firearms, a police scanner tuned to the frequencies used by the Los Angeles County Sheriff’s Department, and a large quantity of contraband.” In reply, defendant contends that no particular planning was necessary to manufacture cocaine base in an abandoned apartment that was accessible through an unlocked door or with a key that was hidden in the shrubbery. Moreover, the pit bulls were not indicative of planning because one “was a friendly puppy” and the other “was in very poor health and very hungry, with its ribs showing.” In our view, the undisputed evidence demonstrated a degree of planning, sophistication, or professionalism beyond what was needed to manufacture cocaine base. The evidence was undisputed that the door “was heavily fortified on the inside with two-by-four’s and four-by-four pieces of wood and metal bolts,” and that two firearms and a police scanner were kept in the apartment. We find the evidence sufficient to support the trial court’s determination that the method employed to commit the crime involved planning, sophistication, or professionalism beyond what was necessary to manufacture cocaine base for sale. C. Large Quantity of Contraband Defendant contends that because only a small quantity (about 54 grams) of crack cocaine was found in the apartment, the evidence failed to support a finding that the crime involved a large quantity of contraband. The Attorney General, on the other hand, argues that because 23.77 grams of rock cocaine was deemed sufficient to impose the upper term in Cal.App.3d 465, 469, 472, the larger quantity of contraband in this case also justified the imposition of the upper term. We agree. Defendant attempts to distinguish Goldstein based on the prosecution expert witness’s testimony that the quantity of contraband in that case (23.77 grams) was the largest he had encountered, whereas in this case, Deputy Sheriff Anthony Adragna testified that the drug operation was “not on a large level.” We are not persuaded. Adragna testified that the drug operation was not large, but did not quantify the amount of contraband as large, moderate, or small. Error Defendant contends that under Cunningham v. California (2007) 549 U.S. 270, he is entitled to have a jury determine, based on a reasonable doubt standard, the aggravating factors for an upper term sentence. The contention lacks merit. Defendant was convicted of crimes that occurred on or before August 3, 2006, when the former version of section 1170, subdivision (b) entitled him to a presumptive middle term of imprisonment. However, defendant was sentenced on December 12, 2008, which was after the effective date of the 2007 amendment to section 1170, subdivision (b). The determinate sentencing law that applies in this situation is set forth in People v. Jones (2009) 178 Cal.App.4th 853, 866-867, which we quote below. “In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that a criminal defendant’s right to a jury trial is violated when a sentencing scheme allows a trial court to increase a criminal penalty beyond the prescribed statutory maximum based on a fact, other than a prior conviction, which was not admitted by the defendant or found true by a jury. Later, the United States Supreme Court in Cunningham, supra, 549 U.S. 270, considered the constitutionality of California’s determinate sentencing law (DSL) in light of the holding in Apprendi. Prior to March 30, 2007, section 1170, subdivision (b), of the DSL provided that ‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.’ In Cunningham, the United States Supreme Court concluded former section 1170, subdivision (b), violated the rule set forth in Apprendi, to the extent it created a presumption that rendered the middle term the statutory maximum and allowed trial courts to impose an aggravated upper prison term ‘based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.’ (Cunningham, supra, 549 U.S. at p. 275, italics added.) “In response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (Stats. 2007, ch. 3, § 2; People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) Because of these amendments, trial courts now have the discretion under section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, at p. 847, citing § 1170, subd. (b), as amended.) Rather, ‘a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.’ (Sandoval, at p. 848.) In other words, these amendments to the DSL essentially eliminated the middle term as the statutory maximum absent aggravating factors.” (People v. Jones, supra, 178 Cal.App.4th at p. 866.) In this case, because defendant was sentenced after the effective date of the 2007 amendment to section 1170, subdivision (b), he was not sentenced under the prior sentencing scheme that was found to be unconstitutional in is misplaced. As noted above, the upper term is now the statutory maximum. “As a result, the trial court was entitled to impose the upper term based on any significant aggravating factors unless an exception applied.” (People v. Jones, supra, 178 Cal.App.4th at p. 867.) In selecting the upper term based on the aggravating factors discussed above, “the court did not violate defendant’s jury trial guarantee by engaging in constitutionally impermissible factfinding in order to impose a prison sentence beyond the prescribed statutory maximum.” (Ibid.) E. Ex Post Facto Violation Defendant contends that because he was sentenced under the 2007 amendment to section 1170, subdivision (b), he was sentenced in violation of the ex post facto clause. (Citing Miller v. Florida (1987) 482 U.S. 423, 433.) However, the record does not indicate whether defendant was sentenced under the 2007 amendment or the judicial remedy adopted in People v. Sandoval, supra, 41 Cal.4th 825. In Sandoval, the California Supreme Court stated that, arguably, the 2007 amendment constituted a change in procedural law and, therefore, applied to any sentencing proceedings conducted after the effective date of the amendment. (Sandoval, supra, 41 Cal.4th at p. 845.) However, it declined to decide that issue and instead invoked its discretionary power to judicially modify the determinate sentencing law to conform to the legislative amendment. (Id. at pp. 845-846.) Assuming that defendant was sentenced under the judicial remedy adopted in Sandoval, his sentence does not violate the ex post facto clause for the reasons set forth by the California Supreme Court, whose decision we are bound to follow. (Id. at pp. 853-857; Auto Equity Sales, 450, 455.) In any event, even if we were to find that defendant was improperly sentenced under the 2007 amendment to section 1170, subdivision (b), it would serve no useful purpose to remand for resentencing under the judicial remedy adopted in Given that the trial court is authorized to impose the upper term under a formula identical to that of the legislative amendment, there is nothing to suggest that a resentencing procedure under Sandoval would result in a more favorable outcome for defendant. Accordingly, a resentencing hearing “would be a useless and futile act and would be of no benefit to appellant.” (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.) III. Presentence Work and Conduct Credits While this appeal was pending, the Legislature amended section 4019 to provide eligible prisoners with increased work time and conduct credit. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50 (Sen. Bill No. 18), effective Jan. 25, 2010.) Section 2900.5 provides for presentence custody credit pursuant to the formula set forth in section 4019. When defendant was sentenced, section 4019 provided for one day of work time credit and one day of conduct credit for each six-day period of custody. (§ 4019, subds. (b) & (c) (2008).) The 2010 amendment provided eligible defendants with one day each of work time and conduct credit for every four-day period of custody. (§ 4019, subds. (b) & (c), as amended by Stats. 2009-2010, ch. 28, § 50 (Sen. Bill No. 18).) Defendant contends that the 2010 amendment should be applied retroactively to those who were sentenced before the amendment’s effective date but whose cases are not final as of that date, which would entitle him to additional credits. Defendant cites People v. Babylon (1985) 39 Cal.3d 719, 722, which stated that “absent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal.” Recently, in People v. Eusebio (2010) 185 Cal.App.4th 990, we concluded that section 4019 applies prospectively. Accordingly, defendant received the presentence work and conduct credits to which he was entitled. The judgment is affirmed. SUZUKAWA, J. We concur: EPSTEIN, P.J. MANELLA, J. Publication Courtesy of California free legal resources. Analysis and review provided by Spring Valley Property line attorney. San Diego Case Information provided by www.fearnotlaw.com id=ftn1> [1] All further undesignated statutory references are to the Penal Code. The trial court granted defendant’s motion to dismiss count 4, cruelty to an animal. (§ 597, subd. (c).) id=ftn2> [2] “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. Two, he may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the ‘perpetrator.’ A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” (CALCRIM No. 400.) “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.” (CALCRIM No. 401.) |
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