P. v. Crawford
Filed 2/4/13 P. v. Crawford 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RONNIE DEMONE CRAWFORD,
Defendant and Appellant.
C069083
(Super. Ct. No. 10F02985)
A jury
convicted defendant Ronnie Demone Crawford of
(Health & Saf. Code, § 11351.5—count one)
and possession of heroin for sale (id.,
§ 11351—count two). The jury found
that defendant was not personally armed with a firearm in the commission of
counts one and two and was unable to reach a verdict on counts three and four
(felon in possession of a firearm and ammunition, respectively). The trial court declared a mistrial on counts
three and four, which were later dismissed on the People’s motion. In bifurcated
proceedings, the trial court found that defendant had sustained two prior
drug convictions (id.,
§ 11370.2, subd. (a)) and four prior prison terms (Pen. Code,
§ 667.5, subd. (b)).
The trial
court denied probation and sentenced defendant to state prison for an aggregate
term of 15 years: that is, the midterm
of four years on count one, a consecutive one-third the midterm or one year on
count two, a consecutive three-year term on each of the two prior drug
conviction allegations, and a consecutive one-year term on each of the four
prior prison term allegations.
Defendant
appeals. He contends (1) insufficient
evidence supports the trial court’s findings on the two prior drug conviction
allegations; (2) the trial court abused its discretion in imposing a consecutive
sentence on count two; and (3) the trial court erred in imposing, and
insufficient evidence supports, particular fees. With respect to defendant’s first contention,
the People concede that remand for retrial is required because the record on
appeal does not support the trial court’s findings on the prior drug conviction
allegations. We reject the concession
that remand for retrial is required and conclude sufficient evidence supports
the trial court’s findings on the priors.
With respect to defendant’s remaining two contentions, we agree with the
People that the issues are forfeited by defendant’s failure to object in the
trial court.
FACTUAL BACKGROUND
On May 6, 2010, officers conducted a
narcotics search at defendant’s home.
Officers seized 0.3 grams of tar heroin hidden under the armrest of a
couch, 0.48 grams of heroin from the bathroom, 11.92 grams of heroin and 80
grams of cocaine base packaged in multiple baggies, together in a jewelry box
in the garage, marijuana in the same jewelry box as well as some marijuana in a
car parked in front of the garage registered to someone who did not live in the
house, a loaded nine-millimeter handgun and ammunition in the garage, almost
$1,700 in cash and packaging materials in a pair of shorts in the master
bedroom, a digital scale and a knife with narcotics residue in the master
bedroom, baggies with narcotics residue under the bathroom sink, plastic
baggies with corners cut off in the trash, and tinfoil pieces with residue in
the house and trash. Defendant admitted
using heroin and tin foil to smoke it with others who came to the house. When accused of being a “mid-level†dealer,
defendant responded, “Two ounces is mid-level dealer? I can’t even pay all my bills with what I
make.â€
DISCUSSION
I. Sufficiency
of Evidence of Prior Drug Conviction Allegations
The
information alleged two prior drug convictions (Health & Saf. Code,
§ 11370.2, subd. (a)), a 1996
County conviction for violation of Health and Safety Code section 11351 and
a 2003 Sacramento County conviction for violation of the same offense. The trial court found both allegations true
as well as four prior prison terms (Pen. Code, § 667.5, subd. (b)) that
had also been alleged.
Defendant
contends that insufficient evidence supports the trial court’s true findings
only on the two prior drug conviction allegations. He argues that the exhibits presented at the
bench trial on the priors do not show that he was convicted in 1996 and 2003 of
possession of a controlled substance for sale (Health & Saf. Code,
§ 11351) for purposes of a three-year enhancement under Health and Safety
Code section 11370.2, subdivision (a).
for purposes of the prior prison term allegations (Pen. Code, § 667.5,
subd. (b)), that he served a prior prison term for drug convictions.
Although
noting that the abstracts of judgment of the 1996 and 2003 section 11351
convictions were introduced at the jury trial on the underlying offenses, the
People “reluctantly conclude[] that the appellate record . . . does
not support the trial court’s true findings [on the prior drug conviction
allegations] and that the matter must be remanded for retrial of those
allegations.â€
At the
jury trial on the underlying offenses, the People’s exhibits 63A and 64A, both
abstracts of judgment, were admitted into evidence. They reflect that defendant was convicted of
violating Health and Safety Code section 11351 in 1996 and again in 2003. The trial judge admitted the evidence of
defendant’s priors at the jury trial pursuant to Evidence Code section 1101,
subdivision (b). Defendant testified at
the jury trial and admitted: a
conviction for a “drug sales case†in 1996; two drug sales convictions, the
latter of which was in 2003; and a 1996 and a 2003 conviction for felonies
involving moral turpitude. Defendant,
shown exhibits 63A and 64A, admitted the same related to him and that he had
entered a plea in both cases.
At the
bench trial on all the priors (the two prior drug convictions and the four
prior prison terms), the prosecutor presented two Penal Code section 969b
packets. As the section 969b packets
appear in the clerk’s transcript on appeal, those packets do
defendant’s 1996 and 2003 convictions for violation of Health and Safety Code
section 11351, abstracts of judgment which were admitted into evidence at the
jury trial.
“ ‘As
a practical matter, . . . prior convictions are normally proven by
the use of documentary evidence alone.’
[Citation.] ‘Once the prosecutor
presents this prima facie evidence of conviction, the trial court is allowed to
make reasonable inferences from the facts presented. If there is no evidence to the contrary, the
trial court may consider the abstract and the facts of the particular case, and
utilizing the official duty presumption, find a defendant was convicted of and
served the term of imprisonment for the listed felony.’ †(People
v. Prieto (2003) 30 Cal.4th 226, 258.)
Defendant
argues that the Penal Code section 969b packets do not show that he was
convicted in 1996 and 2003 of violating Health and Safety Code section
11351. Citing only CALCRIM
No. 3101, defendant claims that evidence from the jury trial on the
underlying offenses cannot be considered at the bench trial on the priors. Thus, he contends insufficient evidence
supports the two prior drug conviction allegations.
We reject
defendant’s argument. First, a bench
trial was held on defendant’s priors, not a jury trial; thus, CALCRIM
No. 3101 does not apply.
name="_ftnref3" title="">[3] Second, the bench notes say to “[g]ive the
bracketed paragraph†only “on request.â€
(Bench Notes to CALCRIM No. 3101 (Jan. 2006) pp. 867-868, 4th par.) And, third, this is not a case of failure of
proof requiring remand for retrial on the 1996 and 2003 prior drug conviction
allegations as defendant claims and the People incorrectly concede. (Monge
v. California (1998) 524 U.S. 721, 734 [141 L.Ed.2d 615, 628], affg.
826, 843, 845; People v. Barragan
(2004) 32 Cal.4th 236, 243-245; People
v. Miller (2008) 164 Cal.App.4th 653, 668; People v. Jenkins (2006) 140 Cal.App.4th 805, 813-814;
86 Cal.App.4th 1296, 1305.)
Instead, this is a case where the court and the parties proceeded as if
the 1996 and 2003 abstracts of judgment, which obviously had been removed from
the Penal Code section 969b packets for jury trial on the underlying offenses,
were included in the section 969b packets to prove the priors at the bench
trial. At the bench trial, the
prosecutor submitted the packets and defense counsel submitted on the
evidence. Defense counsel raised no
argument that there was an absence of proof of the prior drug conviction
allegations. Defense counsel had seen
the packets and was “satisfied with seeing them.†And rightly so. Defense counsel had previously opposed
admitting evidence of defendant’s 1996 and 2003 drug convictions at the jury
trial. The court necessarily considered
the abstracts in finding the prior drug conviction allegations to be true. Under the circumstances, we will consider the
abstracts. (Cf. Cohon v. Department of Alcoholic Beverage Control (1963)
218 Cal.App.2d 332, 335, fn. 10 [“where the record shows that a document
has been considered by the court and the parties as being in evidence, a
reviewing court will not look for technical reasons to exclude from
consideration any part of the record which was before the court belowâ€];
48 Cal.App.3d 129, 132, fn. 4; Walsh
v. Walsh (1952) 108 Cal.App.2d 575, 578-579.) With the abstracts, sufficient evidence
supports the court’s true findings on the prior drug convictions.
II. Consecutive
Sentence on Count Two
Defendant
contends the trial court abused its discretion in imposing a consecutive
sentence on count two. We conclude that
defendant has forfeited the issue.
The
probation report recommended the midterm on count one, a consecutive one-third
the midterm on count two, citing California Rules of Court, rule 4.425(a)(1)
(“The crimes and their objectives were predominantly independent of each
otherâ€), and consecutive terms for the two prior drug convictions and four
prior prison terms.
Defendant
filed a written request for an aggregate sentence of eight years. He did not argue that consecutive sentencing
would be improper. He argued that an
eight-year sentence would be adequate in view of his “lack of violent conductâ€
and the fact the jury found the gun enhancement not true. The requested sentence could be structured
with the midterm on count one (four years), one of the prior drug convictions
(three years), and one prison prior (one year).
Defense counsel asked that the remaining enhancements be stricken
pursuant to Penal Code section 1385 or that the court suspend imposition of the
remaining terms.
At
sentencing, defense counsel stated that he had received the probation report
and discussed it with defendant. He
reiterated his request for a lesser sentence.
After noting defendant’s lengthy criminal record of using drugs and
being a drug dealer, the trial court stated its intent to impose the
recommended sentence “[b]ased upon [defendant’s] record.†In imposing a consecutive sentence for count
two, the trial court did not expressly state the reasons. Defense counsel did not object.
Defendant’s
failure to raise the issue in the trial court forfeits the issue on
appeal. (People v. Scott (1994) 9 Cal.4th 331, 353;
406, 412-413.) In any event, in deciding
to follow the probation report’s recommended sentence—which included a
consecutive sentence on count two— the trial court relied upon defendant’s
record stating, “Based upon your record, it’s a fair sentence. I’m going to follow the recommendation.†(Rule 4.425(b).)
criminal history is supported by the record.
Over 10 years, in addition to defendant’s two prior convictions for
possession of controlled substances for sale and four prior prison terms (rule
4.425(b)(2)), defendant was convicted three times for possession of controlled
substances and one time for assault with a deadly weapon. When he committed the current offenses, he
was on parole. We find no abuse of
discretion.
III. Imposition
of Fees
For the
first time on appeal, defendant challenges the court’s imposition of the main
jail booking and classification fees (Gov. Code, § 29550.2) and the drug
program fee (Health & Saf. Code, § 11372.7) and assessments. Defendant contends (1) insufficient evidence
supports imposition of the fees and (2) the court failed to find that defendant
has the ability to pay the fees. Contrary
to defendant’s claim otherwise, he has forfeited his claims by failing to
object in the trial court.
The
probation officer recommended the now challenged fees. Defendant’s attorney received the probation
report prior to sentencing. Defense
counsel did not object when the fees were imposed.
Having
failed to object below to the imposition of the fees, defendant’s belated
claims on appeal are forfeited. (
154 Cal.App.4th 368, 371; People v.
Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 [restitution fine].)
DISPOSITION
The
judgment is affirmed.
BUTZ , Acting P. J.
We concur:
MURRAY , J.
DUARTE , J.
Health and Safety Code.
relevant part, as follows: “Any person
convicted of a violation of, or of a conspiracy to violate, Section[s] 11351
[or] 11351.5 . . . shall receive, in addition to any other punishment
authorized by law, including Section 667.5 of the Penal Code, a full, separate,
and consecutive three-year term for each prior felony conviction of, or for
each prior felony conviction of conspiracy to violate, Section 11351,
. . . , whether or not the prior conviction resulted in a term of
imprisonment.â€
