P. v. Carr

Filed 10/1/09 P. v. Carr CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

The trial court granted defendant Robert Nathaniel Carrs motion for self-representation. (Faretta v. California (1975) 422 U.S. 806 (Faretta)). Thereafter, a jury found him guilty of conspiring to sell and distribute a controlled substance (Pen. Code, 182, subd. (a)(1)[1] -- count 1); transporting cocaine (Health & Saf. Code, 11352, subd. (a) -- count 2); and transporting cocaine base (id. -- count 3). The jury found not true an allegation defendant was armed with a firearm during the commission of count 1 within the meaning of section 12022, subdivision (a)(1). In a bifurcated proceeding, the jury found true allegations defendant had three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). Defendant was sentenced to an aggregate term of 13 years in state prison, consisting of: four years (the middle term) on count 2; a concurrent four years (the middle term) on count 3; four years (the middle term) on count 1, stayed pursuant to section 654; plus three years for each of his three prior convictions. Defendant appeals.

Defendant contends the trial court prejudicially erred in allowing him to represent himself and in striking his testimony after he refused to answer questions on cross-examination. He also claims that his conspiracy conviction is not supported by substantial evidence, his sentence on count 3 should have been stayed under section 654, and the jury instructions precluded the jury from considering the lack of evidence in determining whether he was guilty of the charged offenses beyond a reasonable doubt. We shall conclude that none of defendants contentions has merit, and therefore, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in count 1 of an amended information with conspiring with Willy Vains to sell and distribute a controlled substance. It was further alleged that in pursuance of the conspiracy, on March 6, 2006, defendant transported cocaine base and cocaine. Defendant was charged in count 2 with transporting cocaine on March 6, 2006, and in count 3 with transporting cocaine base on March 6, 2006.

On March 8, 2006, counsel was appointed to represent defendant.

On April 26, 2006, the trial court granted defendants Faretta motion.

The parties appeared for trial on March 14, 2007. Defendant advised the court that he had a number of motions to file based on mistreatment he received at the jail and while being transported from the jail to the courthouse. The trial court advised defendant that it could not consider such complaints as they were irrelevant to the proceedings before it. The court continued the trial to allow defendant to view some videos that had been produced by the prosecution and to consult with his investigator.

On March 20, 2007, the prosecutor observed that defendant was woefully unprepared to go forward and did not understand the process, noting that defendant had requested his investigators assistance in filing a writ of habeas corpus and sought to personally interview police officers. The prosecutor then questioned whether he would declare under [section] 1368[2] if he were defendants lawyer, noting that defendant, for whatever reason, will not answer direct question[s] even though the responses would directly benefit him if truthful. Although the trial court stated generally that it wholeheartedly agree[d] with everything the prosecutor said, it specified that it was not satisfied section 1368 applied because as I listen to him talk, I think he has a keen understanding of the criminal justice system to a large extent. The court then addressed defendant directly: I do think you have an understanding of the criminal justice system. I also think youre fairly intelligent. [] . . . [] You certainly have an idea as to where you want to go with the case, although on some occasions you [are] kind of mixing up things that may be occurring with you in the jail with this trial. . . . [] . . .[] . . . . [T]he request to view any audio/video or CDs . . . , thats actually reasonable. Thats what any attorney would do. [] But the manner in which you go about it is very rudimentary

. . . . [I]ts not what a lawyer would necessarily do. [] [B]ut . . . youre the one that requested an opportunity to represent yourself, and so . . . you reap what you sow here. The trial court granted defendants request to continue the trial 30 days.

On April 25, 2007, the trial court agreed with the prosecutor that defendant becomes bogged down with collateral issues, but ultimately concluded that he had a very clear understanding of whats going on as far as where he wants to go. [] For example, he brought up a really interesting issue that . . . is . . . arguably relevant about the drugs in [c]ount [1] which were misclassified as methamphetamine. There was a correction made and he had an issue with that. [] . . . [] And that type of sophistication -- lets face it. . . . . [M]ost attorneys may not catch something like that or they may take the [district attorney] at face value . . . .

The following evidence was adduced at trial: On the morning of March 6, 2006, Alvaro Sanchez, a narcotics detective with the Sacramento Police Department, was conducting surveillance at an apartment complex on Sayonara Drive where Willy Vains, a known drug dealer, was suspected of staying. Sanchez observed a burgundy Honda Accord pull into a parking space at the apartment complex. Defendant was driving, Vains was in the front passenger seat, and a man later identified as Austin Rucker was in the back seat. Vains got out of the car and checked a mailbox, while defendant and Rucker went upstairs and waited outside an apartment. After checking the mailbox, Vains proceeded upstairs, unlocked the apartment, and all three men went inside. Approximately one-half hour later, the men left the apartment, returned to the car, and drove toward Sunrise Boulevard. Sanchez radioed other members of the surveillance team and told them the Hondas location so that they could take over surveillance.

Chou Vang, a narcotics detective with the Sacramento Police Department, observed the Honda pull into the parking lot of a Krispy Kreme Doughnuts. Vains got out, met up with another man, who was later identified as Robert Grimes, and the two entered the store together. Five minutes later, Vains and Grimes left the store, walked toward Grimes car, and engaged in what Vang believed was a hand-to-hand [narcotics] transaction, i.e. an exchange of cash for drugs that occurs in one fluid motion. Vains then returned to the Honda, Grimes got back into his car, and both cars left the parking lot.

Vang followed the Honda, which engaged in what he described as counter surveillance maneuvers, i.e. maneuvers employed to discover if one is being followed, and if so, to evade the follower. For example, the Honda drove westbound on Greenback Lane, entered a parking lot, slowly looped back around, and then continued westbound on Greenback.

Next, the Honda stopped at a bank, and one of the occupants went inside and returned about five minutes later. The Honda, still driven by defendant, then drove to a convenience store at the corner of Madison Avenue and Jackson. Rucker got out, while defendant parked the car in a parking stall.

At that point, officers approached the car with their guns drawn and ordered Vains to get out and to lie down on the ground. As Vains did so, a digital scale and a cellular telephone fell out of his pocket. Officers found 44.2 grams of cocaine, 4.9 grams of cocaine base, and $115 in Vains pants pocket. The cocaine and cocaine base were packaged in separate plastic bags that were both inside a larger plastic bag.

Defendant and Rucker also were taken into custody and searched. Rucker possessed $1,800 and 1.28 grams of cocaine base. Defendant possessed $480; he did not possess any drugs.

Grimes was later stopped and searched. Officers found 5.59 grams of cocaine base in his shirt pocket. Detective Vangs opinion that he had observed a hand-to-hand narcotics transaction between Grimes and Vains was bolstered by Grimes statement to another officer that he had purchased the cocaine base from the guy at the Crispy Cream [sic].[3]

Later that day, law enforcement officers searched the apartment on Sayonara Drive. A loaded .357 revolver was poking out of a sofa in the living room. Items commonly used to convert cocaine into cocaine base were found in the kitchen[4] -- an open box of baking soda; a microwave oven, a plastic bowl with a white residue, and a razor with cocaine residue on the blade -- along with .38 grams of cocaine base residue and a baggie containing .55 grams of cocaine base.

In the northwest bedroom, officers found 3.38 grams of cocaine, .65 grams of cocaine base, .28 grams of cocaine and methamphetamine, and approximately 35 hydrocodone and acetaminophen tablets, along with pay stubs and unopened mail bearing defendants name. The mail was addressed to defendant at a post office box.

Various documents bearing Vains name also were found in the apartment, including: a rental agreement for the apartment; a utility bill with the apartments address; a credit report; an identification card; and an order for telephone service at the apartment.

Detective Oliver, an expert in the trafficking of cocaine and cocaine base, opined that someone involved in dealing narcotics would not bring a disinterested third party along on a drug deal because youre essentially creating a witness that [sic] may tell the police exactly whats going on . . . if youre stopped. On the other hand, if the third party knows what is going on, you have the opportunity to come up with a story together to tell the police . . . . There is also an extra set of eyes and ears to watch out for the police . . . [and] potential rip-offs, [a]s well as the simple protection factor.

Rucker testified for the prosecution at trial. At the time of his arrest on March 6, 2006, he used approximately two grams of crack cocaine a day. He had purchased crack cocaine from Vains for about two years. He received his crack cocaine on a daily basis but paid for it twice a month when he received his retirement and social security checks.

On March 6, 2006, Rucker ordered some crack cocaine and was to meet the people that was to give [him] the crack cocaine on the corner of Madison Avenue and Jackson Street. He was supposed to pay his bill at that time; however, he needed to pick up a check from his post office box and cash it at a bank. He did not have a car at the time, so he asked Vains to take him to the post office and the bank.

Rucker placed his order over the telephone; there were several calls back and forth between Rucker and Vains and Rucker and defendant. It was Ruckers practice to telephone Vains first because Vains was the dealer. If Vains did not answer, Rucker would call defendant because defendant would sometimes drive for Vains. He would ask defendant, Is [Vains] available? . . . Is [Vains] going to bring me my . . . [crack cocaine]? Are you gonna bring it?

Vains and defendant picked up Rucker in a Honda driven by defendant and drove him to his post office box. After obtaining his check, Rucker asked Vains for his dope, but Vains told him that he needed to do something first. Thereafter, they drove to an apartment complex on Sayonara Street. Vains checked the mailbox while Rucker and defendant went upstairs and waited outside an apartment until Vains opened the apartment door with a key. Once inside, defendant and Vains went in the back, while Rucker waited in the living room. The three men returned to the car about 10 minutes later and drove to Krispy Kreme Doughnuts. When they arrived, Vains got out of the car and talked to someone, while Rucker and defendant drove through the drive-thru. When Vains returned, defendant drove to a bank so that Rucker could cash his check. Thereafter, defendant dropped Rucker off in front of a convenience store. As Rucker got out, Vains handed him the cocaine base and told him to bring Vains a money order for the money he owed Vains.

Prior to March 6, 2006, defendant delivered crack cocaine to Rucker numerous times. Rucker knew defendant as Mr. G. When Rucker asked defendant to tell him his real name, defendant refused. Rucker kept a written record of when his crack was delivered, who delivered it, and how much he owed for it. There were entries indicating Mr. G. delivered crack to Rucker on Vains behalf.

Defendant testified on his own behalf. During his direct examination, which was done in a narrative format, defendant stated that the police . . . place[d] a weapon and some drugs on Vains at the time of Vains arrest. Defendant called foul, and the police took it to [an] entirely different level, telling defendant that he did not know who he was dealing with and that he needed to shut up. When defendant refused to be quiet, he was arrested and taken to jail. At the time of his arrest, his turban, which he had worn for 30 years, was removed. During cross-examination, defendant refused to answer any questions, other than his date of birth, on the ground he was never advised of his Miranda[5]rights, and the trial court struck his entire testimony.

During his closing argument, defendant asked the jury not to judge him based on his appearance or on the misperception that he was responsible for drawing out the proceedings. He argued the prosecution failed to prove that he was in the car or that he knew Vains possessed a controlled substance. He pointed out perceived discrepancies between the detectives descriptions of him on March 6, 2006, and a photograph of him taken that same day. He noted that not one witness testified that he possessed even a grain of cocaine. He also noted the gun was found at the apartment and questioned how he could use it when he was miles away. He questioned Ruckers credibility based on Ruckers statement that he had been smoking cocaine for decades. He reminded the jurors that he was human just like them and asked, When is it in . . . America that Im held responsible for whats allegedly in your pocket?

DISCUSSION

I

Defendant Was Competent To Represent Himself At Trial

Relying on the Supreme Courts recent decision in Indiana v. Edwards (2008) ___ U.S. ___ [171 L.Ed.2d 345] (Edwards), defendant contends the trial court prejudicially erred in granting and not revoking his pro se status because he lacked the mental competency to conduct trial proceedings. We find no error.

At the time the trial court ruled on defendants Faretta motion and throughout the course of the trial, existing Supreme Court precedent held that the standard of mental competency required for pleading guilty and waiving the right to counsel is the same as the standard of mental competency required for standing trial, i.e. whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. (Godinez v. Moran (1993) 509 U.S. 389, 391, 396 [125 L.Ed.2d 321, 327, 331] (Godinez), quoting Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2d 824] (per curium).) In Godinez, the court considered whether a criminal defendant who sought to waive his right to counsel and enter a plea of guilty should be held to a higher competency standard than the competency level required to stand trial. (509 U.S. at p. 391 [125 L.Ed.2d at p. 327].) The court answered the question in the negative, reject[ing] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard. (Id. at p. 398 [at p. 331].)
In Edwards, the court ruled that even if a defendant has been found mentally competent to stand trial, a trial court may insist that the defendant be represented by counsel (thereby curtailing his right to self-representation) where the defendant suffers from severe mental illness to the point where [he is] not competent to conduct trial proceedings by [himself]. (____ U. S. at p. ____ [171 L.Ed.2d at p. 357].) The court distinguished Godinez on two grounds. First, Godinez involved a defendants ability to proceed on his own to enter a plea, not his ability to conduct trial proceedings. (Id. at p. ____ [at p. 354].) Second, Godinez held that a state could permit a gray-area defendant[6] to represent himself. It did not tell a state whether it may deny a gray-area defendant the right to represent himself. (Id. at pp. ____ [at pp. 354-355].)
The question in this case is whether, in light of Edwards, the trial court erred in permitting defendant to represent himself at trial. Clearly, as a result of Edwards, the trial court had the authority to deny defendants request and to revoke his pro se status if the court believed that defendant was mentally ill and that his mental illness was so severe that he was not competent to represent or to continue to represent himself at trial. (____ U.S. at p. _____ [171 L.Ed.2d at p. 357].) However, that is a very different question from the issue now pending - which is whether the court was required to do so, and if so, whether the failure to do so violated defendants right to a fair trial. Edwards simply does not address whether or under what circumstances a trial court must, as opposed to may, apply a heightened test of competence to a defendants request for self-representation at trial. Rather, it permits judges to take realistic account of the particular defendants mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. (Ibid., italics added.)
In any event, we find nothing in the record to show that, either at the time of his Faretta motion or during the trial proceedings, defendant was not competent under even a heightened standard. As the trial court observed, while defendant initially was preoccupied with collateral issues, he eventually hit on all the relevant issues. He requested the trial court bifurcate the trial of the prior convictions. He requested the drugs be re-tested after the prosecution amended the complaint to allege that he transported cocaine, as opposed to methamphetamine. He requested the gun found in the apartment be fingerprinted. He insisted he be allowed time to review the prosecutors videotaped interview of Rucker. He requested the trial court order the prosecution to disclose the identity of its confidential informant. He challenged the propriety of the search warrant, as well as the prosecutors ability to introduce his prior convictions under Evidence Code section 352 and his prior dealings with Rucker under Evidence Code section 1101, subdivision (b).

While defendants cross-examinations strayed off course at times, he also asked many relevant questions. For example, during his cross-examination of Vang, he asked whether what Vang described as a hand-to-hand [drug] transaction could have been a handshake, and Vang indicated that it could have been. During his cross-examination of Wendy Brown, the evidence finder during the search of the Sayonara apartment, he asked whether another mans parole identification card found at the apartment constituted indicia. When Brown responded in the negative and explained that [t]ypically . . . an item of indicia will have an address associated with it, defendant asked whether his paycheck stubs constituted indicia. Brown responded, No. Because they dont have the address listed on them. Finally, during his cross-examination of Rucker, defendant highlighted Ruckers admission that he had lied to defendants investigator, thereby calling into question his credibility.

Having reviewed the entire reporters transcript, we have no trouble concluding that defendant was competent to conduct the trial proceedings even under the heightened standard. Defendants gratuitous comments, preoccupation with irrelevant matters, and refusal to answer questions during cross-examination, evidenced a lack of legal training, not mental illness. As the trial court advised defendant when cautioning him against making gratuitous comments, [Y]ou obviously know how to ask relevant questions, and youre asking relevant questions. [] . . . [] [Y]our instincts are good. . . . The bulk of the questions youre asking are relevant, and I see what your defense is. And youre putting the People to their proof. [] But the gratuitous comments are not helping you. Theyre hindering.

Notwithstanding the evidence we have just recounted of defendants competence to represent himself, defendant relies on the following conduct to support his assertion that he was not mentally competent to conduct the trial proceedings himself: he brought a Wheeler[7]motion before the venire was called; he brought a Pitchess[8]motion on the eve of trial that was denied as untimely; he requested to be shackled when transported from the jail to the courthouse; he elected to wear his prison jumpsuit during the trial; and he pulled down his pants in the presence of law enforcement officers and refused to pull them back up. None of these facts alters our conclusion.

Defendants premature Wheeler motion and tardy Pitchess motion evidenced a lack of legal training, not mental incompetence.

Defendants request to be shackled while being transported to the courthouse, while perhaps ill-advised, was based on the rational belief that law enforcement officers would not abuse him if he was shackled because if they did so it would be obvious they were abusing him. Defendants decision to wear his prison jumpsuit in front of the jury was based on the logic, not all misplaced, that he did not want the jury to believe he was pretending to be something that he was not.

Finally, defendants behavior in pulling his pants down in front of his jailers, while not based in logic, occurred relatively early in the proceedings, and as detailed above, defendants subsequent conduct demonstrated that he was mentally competent to represent himself.

In sum, the trial court did not err in granting defendants Faretta motion and allowing him to represent himself during the trial proceedings.

II

The Trial Court Did Not Err In Striking Defendants Testimony

Defendant next contends the trial court erred in striking the entirety of his direct testimony after he refused to answer questions during cross-examination, and the error deprived him of his right to a fair trial. He is mistaken.

Defendant testified on direct examination that law enforcement officers planted a gun and some drugs on Vains and that defendant was arrested when he called foul. He also testified that his hair was covered by a turban prior to his arrest. On cross-examination, defendant testified as to his date of birth. Thereafter, he indicated he would not respond to any further questions because he was never read his Miranda rights . . . . The trial court explained to defendant that were beyond the point where Miranda is an issue in this matter. You just took the stand on your own behalf. . . . You testified to certain things. Now, [the prosecutor] has a right to cross-examine you . . . . When defendant persisted in his refusal to answer questions on cross-examination, the court further explained thatMiranda is not an issue right here right now because you voluntarily chose to take the stand and asked defendant, [D]o you want to answer [the prosecutors] questions or not? Defendant responded, No, and the court instructed the jury to disregard anything [defendant] said during his direct examination.

When a defendant refuses to answer questions on cross-examination . . ., the court is faced with a constitutional dilemma. If the court strikes the defendants testimony, its ruling implicates his right to a fair opportunity to defend against the States accusations, which is a component of due process. [Citations.] Essential to a fair [hearing] is that the accused have the opportunity to exercise his fundamental, constitutional right to be heard in his own defense by testifying at [the hearing]. [Citations.] [Citation.]
However, [a] [d]efendants constitutional right to testify in his own behalf must be considered in light of the principle that [w]hen a defendant voluntarily testifies in his own defense the People may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.] [Citation.] [A] [d]efendants refusal to answer relevant questions [may deprive] the prosecution its right to subject [his] claim[s] to the greatest legal engine ever invented for the discovery of truth, cross-examination. [Citation.] [Citations.]
In deciding whether to strike a defendants . . . testimony based on his or her refusal to answer one or more questions, the trial court should . . . . consider if less severe remedies are available before employing the drastic solution of striking the witnesss entire testimony. [Citation.] These include striking part of the testimony or allowing the trier of fact to consider the witnesss failure to answer in evaluating his credibility. [Citations.] (People v. Seminoff (2008) 159 Cal.App.4th 518, 525-526.)
Under the circumstances of this case, we cannot find that the trial courts ruling was an abuse of discretion. Defendants refusal to answer any questions on cross-examination beyond his date of birth deprived the prosecution of its right to inquir[e] into the facts and circumstances surrounding his assertions . . . . (People v. Seminoff, supra, 159 Cal.App.4th at p. 525.) Given the seriousness of those assertions and their exculpatory nature, the trial court acted well within its discretion in striking defendants testimony when he refused to answer questions during cross-examination.

Defendant does not dispute the prosecutions right to cross-examine him concerning his assertions; rather, he suggests, without any citation to authority, that the trial court should have halted the proceedings, excused the jury, and review[ed] with [him] the nature of testimony, as well as the significance of any perceived denial of counsel during interrogation by authorities, before proceeding further . . . . Had the court done so, defendant contends a different resolution may have easily been obtained. Even assuming for arguments sake that the court was under some obligation to counsel defendant on the law, it did so. After defendant indicated he would not answer any further questions on cross-examination because he was never read his Miranda rights, the trial court twice explained that Miranda was irrelevant because defendant had chosen to testify at trial and that the prosecution had a right to cross-examine him. Despite these explanations, defendant elected not to answer any further questions.

There was no error.

III

Defendants Conspiracy Conviction Is Supported

By Substantial Evidence

Defendant next contends that his conviction for conspiring to distribute a controlled substance is not supported by substantial evidence. More particularly, he argues that there is insufficient evidence to support a finding that he ever came to any agreement with . . . Vains pertaining to the distribution of controlled substances on the date of his arrest. Again, we disagree.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Green (1980) 27 Cal.3d 1, 55.)

A criminal conspiracy is an agreement between two or more people to commit a crime. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.) The existence of a conspiracy may be established by circumstantial evidence. (Ibid.) Evidence is sufficient to prove a conspiracy to commit a crime if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, quoting People v. Cooks (1983) 141 Cal.App.3d 224, 311.)

There is ample evidence to support a finding that defendant conspired with Vains to distribute cocaine base on March 6, 2006. Prior to March 6, 2006, Vains supplied Rucker with crack cocaine on a daily basis, and defendant often delivered the crack cocaine to Rucker on Vains behalf. Ruckers practice was first to call Vains because Vains was the dealer. If Vains did not answer, he would call defendant because defendant sometimes drove for Vains and would ask defendant if he or Vains was going deliver Ruckers crack cocaine. On March 6, 2006, Rucker spoke to both defendant and Vains. Defendant and Vains picked up Rucker, drove him to pick up and to cash his retirement check, and Vains handed Rucker the cocaine base when Rucker got out of the car.

On this record, the jury reasonably could infer that defendant and Vains agreed, either positively or tacitly, that defendant would drive Vains to deliver cocaine base to Rucker on March 6, 2006. Because there was ample evidence to support a finding that defendant and Vains conspired to distribute cocaine base on March 6, 2006, we need not consider whether they also conspired to distribute cocaine.

IV

The Trial Court Correctly Imposed Sentences For Both Transportation Convictions

Defendant contends his sentence for transporting cocaine base should have been stayed because there is insufficient evidence he entertained multiple criminal objectives in transporting cocaine and cocaine base.[9] We disagree.

Section 654, subdivision (a), provides in pertinent part that [a]n 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. The purpose of this section is to ensure the defendants punishment is commensurate with his criminal liability. (Neal v. State of California (1960) 55 Cal.2d 11, 20.)

Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct. (Neal v. State of California, supra, 55 Cal.2d at

p. 19.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Ibid.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.)

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.] (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)

The record supports the inference that defendant had separate objectives in transporting cocaine and cocaine base in that after he transported 1.28 grams of cocaine base to Rucker, 44.2 grams of cocaine remained in Vains pocket. (See, e.g., In re Adams (1975) 14 Cal.3d 629, 633 [[I]f a person sells only part of the narcotics he possesses, both the offenses of possession and sale may be punished, since possession of the excess unsold narcotics was not necessary to the sale.].) In other words, defendant transported the cocaine for a purpose other than delivering it to Rucker.

Because the evidence supports a finding that defendant had separate objectives in transporting cocaine and cocaine base, the trial court correctly imposed sentences for both transportation convictions.

V.

The Jury Was Properly Instructed On Reasonable Doubt

Defendants final contention is that the definition of reasonable doubt found in CALCRIM No. 220, when read together with CALCRIM No. 222s definition of evidence, precluded jurors from considering a lack of evidence in determining whether reasonable doubt existed in this case. We rejected an identical claim in People v. Guerrero (2007) 155 Cal.App.4th 1264 and see no reason to revisit that decision here.

[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375].) Reasonable doubt may arise from the evidence presented at trial as well as from the lack of evidence. (Johnson v. Louisiana (1972) 406 U.S. 356, 360 [32 L.Ed.2d 152, 158]; People v. Simpson (1954) 43 Cal.2d 553, 566.) Contrary to defendants assertions, CALCRIM Nos. 220 and 222 do not instruct otherwise. Indeed, the last sentence of CALCRIM No. 222 specifically directed the jurors that [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.) The only reasonable interpretation of this language is that a lack of evidence can lead to a reasonable doubt as to guilt. As we explained in People v. Guerrero: CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendants claim, we consider whether a reasonable juror would apply the instruction in the manner suggested by defendant. [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendants guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant. (155 Cal.App.4th at pp. 1268-1269; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1238 [The only reasonable understanding of the language, [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty, is that a lack of evidence could lead to reasonable doubt]; People v. Flores (2007) 153 Cal.App.4th 1088, 1093 [same]; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509 [The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendants guilt].)

Since there is no reasonable likelihood that the jury applied the instruction[s] in a way that denied fundamental fairness, defendants contention to the contrary fails. (People v. Hernndez Rios (2007) 151 Cal.App.4th 1154, 1157.)

DISPOSITION

The judgment is affirmed.

BLEASE , J.

We concur:

SCOTLAND , P. J.

RAYE , J.

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[1] Further undesignated statutory references are to the Penal Code.

[2] Section 1368, subdivision (b) provides that [i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendants mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.

[3] Grimes statement was admitted for the limited purpose of showing why Vang believed that Vains and Grimes engaged in a drug transaction and not for the truth of the matter asserted.

[4] According to Detective Jason Oliver, an expert in the manufacture of cocaine base, the most common method for converting cocaine into cocaine base is to combine cocaine powder, baking soda, and water into a paste, let it rise, and microwave it.

[5]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694].

[6] Gray-area defendant refers to a defendant that falls in a gray area between Duskys minimal constitutional requirement that measures a defendants ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose. (Edwards, supra, ____ U.S. at p.____ [171 L.Ed.2d at p. 354].)

[7]People v. Wheeler (1978) 22 Cal.3d 258.

[8]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[9] Defendant was sentenced in pertinent part to four years for transporting cocaine and a concurrent four years for transporting cocaine base.