P. v. Ashley
Filed 2/7/08 P. v. Ashley CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
Plaintiff and Respondent,
ANGELENE L. ASHLEY,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. James Anthony Edwards, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
Linda Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant of possessing methamphetamine for sale (Health & Saf. Code, 11378) and conspiracy to transport/sell methamphetamine. (Pen. Code, 182(a)(1).) She was granted probation and appeals, claiming evidence was improperly admitted and sentencing error occurred. We reject her contentions and affirm.
While listening in on the cell phone of a methamphetamine supplier, police heard him arrange to supply the drug to defendant. A search of her home found a quantity of the drug and paraphernalia for its sale. Further facts will be discussed as they are pertinent to the issues addressed.
Issues and Discussion
1. Transcripts of Recorded Phone Calls
Police surreptitiously recorded calls from and to defendants drug suppliers cell phone. Defendants supplier was described as pretty high up in the . . . organization that manufactur[ed] and s[o]l[d methamphetamine]  . . .  directly under the meth[amphetamine] lab. In phone call number 444, defendant called her supplier on his cell phone and told him that she needed more methamphetamine (they referred to it as restock), but she did not need more marijuana. Her supplier replies that he will come to her place later. In call number 452, which took place about an hour and a half after number 444, defendants supplier ordered more drugs from and made arrangements to meet his supplier. Thereafter, defendants supplier was seen meeting his supplier from whom he obtained a bag. Then, defendants supplier went to defendants house. In call number 456, defendants supplier told a man who was trying to get drugs that he had just gotten his restock and he was arriving at the defendants house, had a few more stops and then would meet with this man. An officer who listened in on the calls on defendants suppliers cell phone testified that the former told several other people that he was going to meet them at various places to make transactions. After defendants supplier went to defendants house and left 10 to 15 minutes later, several people came and went from the house, which suggested that they were buying drugs there. Officers entered a short time later, and defendant ran from them when she saw them, yelling for them to get out. After officers detained her outside the master bedroom, they opened the door, which had been slammed shut by another female, and entered. As they did, a man in the master bathroom attempted to flush a paper bindle containing methamphetamine down the toilet. In the master bathroom, officers found methamphetamine pipes, a scale, straws commonly used to snort methamphetamine, and a glass mirror, a credit card bearing defendants name which was like those typically used to divide up large quantities of methamphetamine for sale, all with methamphetamine residue on them, and a locked safe containing a total of a little over 25 grams of methamphetaminein four bags, other baggies and a bag of marijuana. There were six people in the house. Defendant advised the others not to talk to the police. In call number 645, which occurred two days after the other calls and after defendant was arrested, she and her supplier discussed what led up to her arrest and what she should do about her case. She told her supplier that she refused to tell the police anything.
A transcript of phone call number 444 was used to refresh the recollection of the first prosecution witness. The tape of that conversation was then played for the jury and it was given a transcript of that call. Before the recorded call was played, the trial court informed the jury, [T]his transcript itself is not evidence. Its merely an aid to help you understand whats being played on the tape. So dont mark it up in any way. Youll need to return it when youre done with the tape. The tape of phone call number 452 was then played for the jury, and the prosecutor noted, as to it, . . . I have a transcript once again for everybody. The tape of phone call number 456 was also played, but no mention was made of its transcript.
At the request of defense counsel, a word was redacted from the tape and transcript of phone call number 645.
A corporal testified that he made the transcripts of the taped phone calls. He said he reviewed the transcript of call number 444 and it was accurate. When taped phone call number 645 was about to be played, the prosecutor noted, . . . I have transcripts again.  . . .  Copy for the court. The witness said he had a copy of the transcript. Defense counsel unsuccessfully objected to admission of a portion of that call, referring to the last paragraph on page 2 through the end. When proceedings were adjourned for that day, the trial court directed the jury to leave the transcripts . . . and your notebooks there.
The following day, the corporal testified that the transcript he made of call number 645 was a fair representation of the conversation that [he] heard.
Another prosecution witness testified that defendants voice was on the recording of phone call number 444. Defense counsel stipulated that defendants voice was on the recording of phone call number 645.
During argument to the jury, the prosecutor said, You cant consider facts that are not in evidence. All the evidence in this case came from witnesses who testified. We have heard recordings and we have had a lot of physical evidence, photographs that we looked at. That is the evidence in this case, and thats what you must base your decision on. He argued that the recorded phone calls that weve heard were some of the best evidence in the case to establish the conspiracy charge. (Italics added.) He then replayed phone call number 444, saying, just before, I dont know if anybody has the transcripts or not anymore. If not, you have to listen to it to the best of your ability. After playing the recorded call, he stated that there might be an error in the transcript of that call, adding, I know you dont have your transcripts with you at the moment. He then made reference to a page on the transcripts the jury saw before. Defense counsel objected on the basis that the prosecutor was discussing matters not in evidence. The prosecutor pointed out that the jury had seen the transcript of that conversation before. The prosecutor then stated The clerk is bringing out the transcripts and he referred to a particular page, asserting that the transcript had incorrectly reported two of the words the defendant had said during the recorded phone call. The prosecutor told the jury, [What I just told you the defendant said during call number 444 i]s what it sounded like to me [from the recording], but remember what the judge has told you, the evidence is that recording and these transcripts are just made by people listening to recordings. So you listen to the recording yourself, and you decide what it says, if theres a controversy. The prosecutor then addressed call number 452, saying to the jury, I dont know if you have a transcript for that call or not. He replayed the call for the jury, making no reference to its transcript. He then addressed call number 456, again, making no reference to its transcript and replayed it for the jury. He told the jury, . . . I think [the conspiracy count i]s very simple after youve listened to these recordings. Later, he repeated this theme, saying, Listen to this evidence right there. That proves [she is] guilty [of] Count 2, . . . conspiracy to transport methamphetamine.
Subsequently, the prosecutor called the jurys attention to recorded phone call number 645. He added, I think many of you have the transcripts now. He had the recording of the call replayed for the jury, making no further reference to its transcript, adding, at the conclusion, Okay. You heard the important points.
During closing argument, the prosecutor said, You look at everything. Look at all the stuff. Theres the tapes. Listen to the tapes. There are photographs. There are drugs. Look at those things. He invited the jury to play the recording of phone conversation number 645 in the jury deliberation room. He concluded by saying, Id ask you again to look at all the evidence. . . . Everything here, this evidence thats all been entered, its been entered for you to review. When youre back in the jury assembly room, ask for it. Ask to bring it all in with you. Look at the photos. Look at the bongs, look at the scales, look at whatever you want to look at. Take the CD [containing the four recorded phone calls]. Take this CD player in there with you. . . . Take the transcripts.
When the trial court sent the jurors into the deliberation room, it directed them only to, [T]ake your personal belongings and your notebooks and pens . . . .
After the jury left the courtroom, the following colloquy occurred between the trial court, defense counsel and the bailiff,
THE COURT [to the prosecutor]: By the way, . . . you mentioned something about the transcripts going into the jury. They arent the evidence. The tapes are evidence. So we dont normally send the transcripts in.
Q [DEFENSE COUNSEL]: Do the jurors still have the transcripts?
THE COURT: I dont know. I thought we collected those but maybe not.  Do they still have those transcripts? Do you know?
THE BAILIFF: Im not sure if weve got them.
THE COURT: If they do, they need to be collected and brought back in. (Capitalization altered.)
There is no further reference to the transcripts in the record before us for that day. However, the following day, the jury sent the trial court a note which stated, in pertinent part, Please provide the transcripts to all phone calls. The trial court made the following written response, The recordings are in evidence, the transcripts are not. Therefore, the court cannot provide them to you. (Italics added.)
Defendants leading argument in her appeal is The [trial] court failed to ascertain whether the jury took [the] transcripts . . . into the jury room[,] thereby violating her right to due process, which prohibits the jury from considering evidence that was not introduced at trial. As to the note the jurors sent the trial court, which appellate counsel for defendant relegates to a mere footnote in her presentation of the facts concerning this issue, she says, While [the jurys] question at least suggests that [it] did not have all the transcripts, it does not affirmatively establish the absence in the jury room of any one--or more--of the transcripts of the four telephone calls. Appellate counsel for defendant does not even mention the trial courts response to the jurys inquiry, which appears on the same two pages of the Clerks Transcript as does the question. Appellate counsels contention is absolutely without merit.
2. Admission of the Taped Phone Calls
Defendant contends that the trial court erred in admitting the tape of the phone calls before a proper foundation had been laid for them by the prosecutor pursuant to Evidence Code section 403, subdivision (a). She asserts that absent this foundation, the evidence was neither relevant nor admissible. She contends that because some of the statements in the taped conversations were those of her coconspirator, the proper foundation was evidence showing the existence of a conspiracy and that the statements were made in furtherance of that conspiracy. She contends that Evidence Code section 353s requirement of an objectionis inapplicable because under Evidence Code section 403, subdivision (a) it was the Peoples burden to make a foundational showing and what she is actually contending is that the foundational evidence was insufficient and insufficiency of the evidence issues are not waived by a failure to object to them below. Unfortunately for her, she cites no authority so holding. Rather, in People v. Holt (1997) 15 Cal.4th 619, 666-667, the California Supreme Court held that even though the People have the burden of establishing the foundation that a defendants waiver of his rights was knowing and intelligent before his statements may be admitted, his failure at trial to object to the admission of his statements on the basis that the People failed to carry that burden waived the argument. (Accord, People v. Ochoa (1998) 19 Cal.4th 353, 414 [Defendants failure to object to evidence on the basis that a proper foundation for its admission had not been laid by the People waived his complaint on appeal that a foundation had not been laid]; People v. Hood (1997) 53 Cal.App.4th 965, 970 [opinion of this court].) Logic dictates that an objection by defendant on the basis that the People have not established a sufficient foundation is necessary to preserve the matter for appeal. We review the trial courts ruling on such matters under the deferential abuse of discretion standard (People v. Tafoya (2007) 42 Cal.4th 147, 165) and, absent defendants objection to the evidence on the basis of an insufficient foundation, there is no occasion for the trial court to exercise its discretion, thus leaving us nothing to review.
In the alternative, defendant asserts that she, in fact, objected to the admission of the tape of two of the four phone calls before trial began, thusly, Just to clarify. There were two calls between [defendants supplier] and third parties [that] are being admitted as co-conspirator [sic] statements against my client. My only concern is that the People wouldnt use those statements to essentially prove up the conspiracy, that there would have to be facts independent that [defendant] was in fact participating in a conspiracy and there was a conspiracy in effect prior to those statements coming in. I understand from [the prosecutor] that thats the way he plans to present this evidence. The prosecutor said, Thats correct. Defense counsel made no further comment along these lines to the trial court. The trial court made no ruling. Trial then began.
We do not agree with the People that this statement constitutes an objection by defendant below to the admission of the tape of phone call numbers 452 and 456. Certainly, there is no ruling by the trial court for us to review. Defense counsel was merely attempting to satisfy herself that the prosecutor intended to prove the conspiracy before introducing those two sets of statements. That is, in fact, just what he did. Phone call number 444 showed that defendant and her supplier were working together and he was supplying her with methamphetamine to sell. If this was an insufficient foundation to demonstrate that they were conspiring together to sell methamphetamine, defense counsel should have objected, on this basis, before the tape of phone call number 452 was played for the jury. However, she did not.
Defendant asserts that her trial attorneys failure to object to the admission of the two calls between her and her supplier for the same foundational reasons she asserts as to the calls between her supplier and third parties constitutes incompetency of counsel. However, defendants statements in her pre-arrest call were admissible under Evidence Code section 1220and her suppliers statements were admissible to give context and meaning to defendants statements. (People v. Turner (1994) 8 Cal.4th 137, 188-190.) As the People correctly point out, defendants post-arrest statements were admitted for the non-hearsay purpose of showing consciousness of guiltand not to prove the truth of the matters asserted therein. Of course, like the earlier call, her statements in it were also admissible under Evidence Code section 1220. Her suppliers statements in that call, like those in the first call, were admissible to give her statements context and meaning.
Defendant asserts that the admission of the recording of her post-arrest phone call with her supplier was in error because the conspiracy had already ended. However, defendant failed to object to it on this basis belowand it was admissible for reasons already stated. Because of this, we also reject defendants fall-back position that her trial attorney was incompetent for failing to object to the admission of the tape of this phone call on the basis that the conspiracy had already ended.
3. Admission of Improper Lay Opinion
A sergeant, a 25-year veteran of the sheriffs office who ran the Narcotics Task Force, testified to hearing the first phone conversation between defendant and her supplier, and offered his interpretation of it, which has already been described in this opinion. Defense counsel did not object to his testimony on the basis of speculation. The sergeant then testified that defendants supplier called a number that he recognized as the number he typically called when he needed to pick up drugs himself, which would be his source or the person that supplied him. And he arranged for a meeting. Defense counsel did not object to this testimony on the basis that the sergeant lacked the expertise to know that the other person was the drug supplier of defendants supplier, or that they agreed to meet. The sergeant went on to testify, without objection from the defense, that a meeting between the two did, in fact, take place, after the call was made. He further testified, [W]e already knew who [the supplier of defendants supplier] was. That was his source of supply to [defendants supplier]. So we knew every time he called up [his supplier], he was ordering up drugs. . . . We knew he was either going to meet [his supplier] or in this case [his supplier] sent a guy over there to meet him. So I sent a team over [to where they met] to do surveillance and find [defendants supplier] and this person he was meeting. Without objection, the sergeant testified that there was then a phone conversation between defendants supplier and another man in which the latter asked the former for drugs and the former said he was busy and he was just pulling up to defendants house. Defendants supplier told the man he had a few more stops to make before he could meet up with him. The sergeant testified that his surveillance team had seen defendants supplier meet a Hispanic man, and then drive to defendants house. The team went to defendants house and watched it and based on what they told the sergeant, he began getting a search warrant because he feared drugs were leaving defendants house. When the prosecutor asked the sergeant for his opinion as to what had happened up to that point, defense counsel objected on the basis of speculation. The trial court overruled her objection and the sergeant testified that, in his opinion, defendants supplier had picked up a supply when he met with the Hispanic man and was going to defendants house to drop off an unknown quantity of drugs. However, this objected-to testimony was merely a summary of what the sergeant had already testified to, which had not been the subject of a speculation objection by the defense. Even if the trial court had excluded the sergeants last statement, the implication would have been clear that defendants supplier had picked up drugs from his supplier and taken at least some of them to defendants house.
Ignoring the fact that she is confined on appeal to the nature of the objection she made below, defendant here asserts that the sergeants last statement was inadmissible as an expert opinion because it was not sufficiently beyond common experience and it invaded the province of the jury. However, her failure to object to it on these bases below forecloses her current claims. (Evid. Code, 353.)
A sheriffs investigator who was a member of the drug task force, had experience and training in controlled substances and had previously testified as an expert in methamphetamine testified, without objections, about the drug and how it is distributed. He also testified, without objection, that the methamphetamine found in defendants house was possessed for sale and he explained his reasoning. He testified, during cross examination by the defense, that he arrived at defendants house after her supplier had and he knew her supplier had met with his supplier. Since he was preparing the search warrant, he spoke to other officers and had been told that defendant had been chased inside her house, that either she or another Black female had been chased into a bathroom while either was flushing methamphetamine down the toilet. When asked during redirect by the prosecutor if the fact that no money was found in the house changed his opinion that the methamphetamine discovered there was possessed for sale, he responded, No  . . .  [because for] . . . one, she just purchased the methamphetamine from [her supplier]. Defense counsel objected on the basis of speculation and her objection was overruled.
Defendant here contends this was error. It was not. The investigator, as author of the search warrant, knew everything that had been going on in the investigation and what had been found at defendants house. As an expert in methamphetamine, he was qualified to offer his opinion based on this information. Therefore, the defendants objection based on speculation was correctly overruled by the trial court. Defendants current objections to this testimony, that the investigators opinion was not the proper subject of expert opinion because it was a matter which could have been inferred by a lay person without his expertise, was waived because it was not asserted below and it lacks merit. The same is true of her companion argument that the investigators opinion usurped the job of the jury.
4. Cumulative Error
Having concluded that none of defendants assignments of error are meritorious, we necessarily conclude that there was no cumulative error that deprived her of a fair trial.
Defendant asserts that Penal Code section 654requires the trial court to stay the lesser conspiracy count. However, since defendant received probation, there was no sentence for conspiracy to stay. If defendant is suggesting that section 654 requires the trial court to dismiss her conviction for conspiracy, she is incorrect.
The judgment is affirmed.
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 In her reply brief, defendant takes issue with the Peoples incorporation of the prosecution expert witness interpretations of words uttered by defendant, her supplier, and others with whom they conversed. We here commit the same sin but feel confident in doing so given the rubric that we report the facts and reasonable inferences which may be drawn from them which support the verdicts. (People v. Sweeney (1960) 55 Cal. 2d 27, 33.)
 Because our summary of the recorded call is based upon our hearing of the DVD, in which defendants statements are sometimes difficult, if not impossible, to discern, we quote appellate counsels summary of the conversation, thusly, [Defendant says to her supplier,] Are you going to be coming this way soon? [Her supplier] says he wasnt planning on it but did she need a restock? [Defendant] says yes, she needs a restock. [Defendants supplier] asks [defendant] if she needs trees and [defendant] says no. [Defendant] says shes been gone for a couple of days and missed a lot of business with the regular people who came by. . . . [Defendants supplier] says he will be there in an hour or so.
In her opening brief, appellate counsel for defendant summarizes this call as follows, [Defendants supplier] calls [his supplier]. [Defendants supplier] says he is running late because of traffic. [Defendants suppliers supplier] says he will let the other man know that [defendants supplier] will be there.
 In her opening brief, appellate counsel for defendant summarized this conversation as follows, [Defendants supplier] calls Dennis Smith. . . . [Defendants supplier] says he got his restock. Later, [defendants supplier] says that he is going to handle [defendant] and is pulling into her house. [Defendants supplier] and Dennis make plans to meet late at [defendants suppliers] house.
 A prosecution expert testified the methamphetamine cost between $500 and $800 and could be sold for about $2,500. It was his opinion that it was possessed for sale.
 Appellate counsel for defendant summarizes this call as follows, [Defendant] calls [her supplier]. [Defendant] says she has just been released from custody late the preceding evening. . . . [Defendant] asks [her supplier] to give her a ride home the next day and said they could talk about the incident there.  [Defendant] is concerned she might be going in for awhile because they found an ounce. [Defendants supplier] informs [defendant]: No, because they did not nail you for sales. Then, [defendant] and [her supplier] discuss [defendants] charges; [defendant] says she has been charged with possession for sale in this latest case. [Defendant] says a possession and under the influence charge were for an earlier arrest for which she failed to appear in court.  [Defendant] and [her supplier] then note that the search warrant [for her home] was served at 10:01 p[.]m[.] and discuss whether this is legal. [Defendant] says she did not have her Penal Code book with her . . . .  [Defendant] informs [her supplier] that she told the police she did not want to talk to them and that she wanted her attorney. They then agree [that defendants supplier] will give [defendant] a ride home the next day.
 That subdivision provides, in pertinent part, The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when:  (1) the relevance of the proffered evidence depends on the existence of the preliminary fact.
 Evidence Code section 353 provides, A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:  (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and  (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.
 Of the four cases she does cite, two are dependency cases and two are criminal. All deal with contentions on appeal that the evidence to sustain the trial courts dispositional findingseither that the dependent child is adoptable or that the criminal defendant is guilty or that an enhancement finding is true is supported by substantial evidence. This has nothing whatsoever to do with a defendants obligation to notify the court, as defense counsel did numerous times during this trial, that certain evidence lacked an adequate evidentiary foundation to permit admission.
 Evidence Code section 1220 provides, Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.
Defense counsel below appears to have recognized this before trial when she objected to the introduction of a recording of conversations between defendants supplier and a third person, which were eventually not offered at trial, saying, [They are] just hearsay. [Defendant] is not on them. Theyre not statements of the defendant. (Italics added.)
 The suppliers statements were also admissible as statements of a co-conspirator, with the trial court having discretion to permit their admission before evidence of the conspiracy had been established, if, during trial, that evidence was introduced, which it was.
 In her reply brief, defendant asserts that her statements did not show consciousness of guilt because ultimately, she did not present the defense that the drugs in her house were not hers. We do not have a transcript of the opening statements of the attorneys, so we have no idea what defendants theory of the case was at the time this evidence was introduced. However, when the prosecutor represented to the trial court that the defense was that the drugs found in defendants home were not hers, defense counsel did notcontradict it. Thus, defendants calmly reporting to her supplier that the police had found more than an ounce of methamphetamine in her house, while not claiming that she was shocked by the presence of the drug, contradicted the defense the prosecutor anticipated at the time and indicated a consciousness of guilt.
 See the second paragraph of footnote 10, ante.
 Defendant objected to it below on the basis that there was inadequate foundation in that the speakers had not been identified. That objection was mooted when the prosecutor stated that the female on the recording would state her name and a prosecution witness testified, during cross examination by the defense, that this call was between the defendant and her supplier. At some point while the recording was being played for the jury, defense counsel objected on the basis that some of the statements, i.e., those concerning the service of the search warrant, were irrelevant and admission of her statements that she had refused to speak to the police and wanted to talk to her lawyer constituted an improper comment on [her] Fifth Amendment right. However, counsel conceded that her objection was too late, suggesting that the jury had already heard the statements to which she was objecting. The trial court overruled the latter. The only reference made to this call relating to the conspiracy was the prosecutors argument to the court that defendants statements during the call that she had refused to talk to the police suggested that she was protecting her supplier, which show[ed] part of the conspiracy . . . and . . . a relationship between them in addition to being evidence of her consciousness of guilt. In response to this point, defense counsel said only that introducing defendants statements that she refused to talk to the police and said she wanted to talk to her lawyer was tantamount to improperly commenting on her invocation of her Fifth Amendment right.
 While not relevant to our discussion, we pause to disavow defendant of the notion that she was convicted of conspiring to transport methamphetamine. The Information charged her with conspiracy to commit the crime of transport/sell/furnish methamphetamine . . . . (Capitalization altered.) Although, as appellate counsel for defendant points out, the jury was given two instructions which referred to this as conspiracy to transport and conspiracy . . . to commit the crime of . . . transportation of methamphetamine as she does elsewhere in her brief (see our discussion of the first issue), she ignores other instructions which stated, Defendant is accused . . . of conspiracy to violate section 11379 of the Health and Safety Code . . . .  Every person who transports, sells or furnishes methamphetamine . . . is guilty of a violation of Health and Safety Code section 11379 . . . .  Sale means any exchange of methamphetamine for cash . . . .  In order to prove this crime, each of the following elements must be proved:  (1) a person sold, transported, or furnished methamphetamine . . . . The jurys verdict stated that defendant was guilty of, conspiracy to transport methamphetamine . . . as chargedunder Count 2 of the Information (italics added) which, as already stated, included selling and furnishing.
 Penal Code section 654 provides, (a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.  (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation in any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.