Filed
3/8/13 P. v. Cruz CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JIMMY LEE CRUZ,
Defendant and
Appellant.
F063811
(Kern
Super. Ct. No. BF135848B)
APPEAL from
a judgment of the Superior Court of
Rex
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Harry
Joseph Colombo, and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant/defendant
Jimmy Lee Cruz (defendant) was charged with several drug-related offenses: count I –
(Health & Saf. Code, § 11378); count II –
(Health & Saf. Code, §11351); count III – unlawful possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)); count IV – unlawful possession of
hydrocodone (Health & Saf. Code, § 11350, subd. (a)); and count V unlawful
possession of drug paraphernalia (Health & Saf. Code, § 11364).
Defendant
changed his plea to no contest in exchange for a court-indicated sentence of
three years in jail. Subsequently, he
was sentenced to four concurrent three-year jail terms on counts I through IV.
Defendant
raises a number of issues on appeal.
First, he claims the superior court erred in denying his
apartment under color of a search warrant. Second, he asserts that his
sentences on counts III and IV must be stayed pursuant to Penal Code
section 654. Finally, he argues that
equal protection considerations require that section 4019 be applied
retroactively.
We will
stay the execution of the sentences on counts III and IV and otherwise affirm.
STATEMENT OF
FACTS
The Search
Warrant
title="">[3]
Kern County
Deputy Sheriff Juan Bravo believed defendant was using an apartment unit in
Bakersfield, California, to sell drugs.
Deputy Bravo sought a warrant to search the apartment unit.
In his affidavit supporting the
warrant request, Deputy Bravo attested that, “[w]ithin the past thirty (30)
days,†he had met with a confidential informant. The informant told Deputy Bravo that he had
seen an individual identified as “Jamaica†possess and sell methamphetamine
from the apartment unit. Deputy Bravo
performed a records check of the apartment, which yielded the defendant’s
name: Jimmy Lee Cruz. A records check of defendant’s name revealed
that he had prior narcotics-related violations and two outstanding misdemeanor
warrants. One of the outstanding
warrants was for possession of a hypodermic syringe. Deputy Bravo obtained a booking photograph of
defendant and showed it to the informant.
The informant immediately identified the defendant as “Jamaica.â€
The
affidavit further stated that “[w]ithin the last ten days,†Deputy Bravo
conducted surveillance of the apartment.
During the surveillance, Deputy Bravo observed a vehicle arrive at the
apartment parking lot. Its female
occupant exited the vehicle and entered the subject apartment unit. After less than three minutes, the female
exited the apartment unit and left in her vehicle. Law enforcement stopped the vehicle and found
the female to be in possession of a bindle of suspected methamphetamine. Two other occupants of the vehicle were later
found to show signs of central nervous system stimulant use and admitted to
being methamphetamine users.
During
approximately 20 minutes of surveillance, Deputy Bravo observed a total of
three subjects entering the apartment unit and remaining there for less than
three minutes. Based on his training and
experience, Deputy Bravo concluded that the foot and vehicular traffic was
indicative of narcotics trafficking.
The warrant
was issued on February 27, 2011.
Execution of the Search Warrant
Deputy
Sheriff Bravo responded to the apartment unit on March 2, 2011. His colleague, Deputy Sheriff Michael Dorkin,
contacted defendant at the door of the apartment. Defendant retreated into the residence and
was eventually located in a bathroom along with codefendant, Vaughn Smith. In the bathroom, Deputy Bravo observed a
manual scale in the toilet. He also
observed a substance he suspected to be methamphetamine on the bathroom floor
and in a glass smoking pipe.
Other law enforcement personnel
searched the apartment’s only bedroom.
Multiple items were seized from the bedroom, including: digital scales,
suspected methamphetamine, bindles, plastic commonly used to package
methamphetamine, more than 20 suspected Vicodin or hydrocodone pills, and more
than $2,000.
Two cell phones were also found in
the apartment. Deputy Bravo found text
messages on the cell phones with language indicative of narcotics transactions.
Preliminary Hearing
Deputy Bravo testified at the
opinion, the hydrocodone and methamphetamine located at the apartment were
possessed for the purpose of sale.
Deputy Bravo did not distinguish between the methamphetamine found in
the bathroom and the methamphetamine found in the bedroom.
A criminalist
from the district attorney’s crime lab testified at the preliminary hearing
regarding the substances found in the apartment. Color and crystal tests showed that the
substances found on the floor of the bathroom, inside the smoking pipe, and in
the bedroom were methamphetamine. The
criminalist further testified that, based on their markings, the pills found in
the bedroom were Vicodin.
Motion to Suppress
Defendant
moved to quash the search warrant and
suppress the evidence seized thereunder.
Defendant argued that: (1) the
search warrant was not supported by probable cause; and (2) that the warrant
was not executed with a good faith belief in its validity. Defendant posited that the search warrant
lacked probable cause because (1) the supporting affidavit failed to show that
the confidential informant was reliable and truthful; and (2) the information
contained in the supporting affidavit was stale.
The superior court denied the
motion.
No Contest Plea
At a
subsequent pretrial proceeding on September 29, 2011, defendant changed his
plea to no contest in exchange for a court-indicated sentence of concurrent
three-year terms.
title="">[5] At this change of plea hearing, the superior
court discussed what it referred to as defendant Cruz’s “Waiver of
Constitutional Rights Form.†Presumably,
the court was referring to the Felony Advisement of Rights, Waiver and Plea
Form (plea form) which was signed, but not dated, by defendant. This form contained the following typed text:
“2. I have not
been induced to enter this plea by any promise or representation of any kind,
except for the following terms and conditions (state any agreement with the
District Attorney or the Court, including any indicated sentence).â€
Immediately below
this typed text, the following was handwritten:
“Ct.-indicated
3 years jail under PC 1170(h). U/T on Ct. 1; M/T on Ct. 2; U/T on Ct. 3; U/T on
Ct. 4. all to run concurrent.â€
The court recited the terms of the
court-indicated sentence, and defense counsel raised a section 654 claim as
follows:
“
Two, upper term on Count Three, upper term on Count Four all to run
concurrent. [¶] Mr. Moran [defense counsel], is that your
understanding?
“
And I failed to put on there, two of those counts will have to be stayed
under Section 654, but that can be taken up at the time of sentencing.
“THE COURT: All right. Mr.
Cruz, is that your understanding?
“DEFENDANT CRUZ: Yes, sir.â€
The
prosecution and defense stipulated that the preliminary hearing transcript
would provide the factual basis for the plea.
Defendant then entered his no contest pleas.
Sentencing
On November
3, 2011, the court held a sentencing hearing.
Before the hearing, defendant filed a “Statement in Mitigation.†In the statement, defendant reasserted his
section 654 claim. At the sentencing
hearing, defense counsel argued that counts III and IV were “lesser includedsâ€
of counts I and II and, therefore, section 654 applied.
The record indicates that there was
confusion as to what was discussed at the September 29, 2011, change of plea
hearing. Apparently, codefendant Vaughn
Smith’s plea form contained language explicitly staying his sentences on counts
III and IV. But, defendant Cruz’s form
did not contain such language. This was
apparently an oversight, as defendant Cruz’s counsel indicated that he “didn’t
make [it] clear†on the plea form that the sentences on counts III and IV would
be stayed under section 654. The
superior court reviewed defendant Cruz’s plea form and observed that it stated
the sentences were to run concurrently.
The court then asked whether defendant Cruz wished to withdraw his plea,
to which defense counsel responded, “No, your Honor.â€
The
superior court sentenced defendant to concurrent three-year sentences as to
each of counts I through IV.
name="_ftnref6" title="">[6]
ANALYSIS
DEFENDANT’S MOTION TO SUPPRESS
Defendant argues the judgment must be
reversed because (1) the search warrant used to search the apartment was not
supported by probable cause and (2) that law enforcement’s reliance on the
warrant was not objectively reasonable.
We find that defendant’s first contention lacks merit and therefore do
not reach the second.
“The standard of appellate review
of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual
findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so
found, the search or seizure was reasonable under the Fourth Amendment, we
exercise our independent judgment.
[Citations.]†(
362.) Our review “is confined to the
correctness or incorrectness of the trial court’s ruling, not the reasons for
its ruling. [Citations.]†(
18, 27.)
Defendant raises three bases for
its lack of probable cause contention:
(1) the confidential informant cited in the supporting affidavit was not
shown to be reliable; (2) the information supplied by the confidential
informant was not sufficiently corroborated; and (3) the supporting affidavit
is stale because it lacks information as to when the confidential informant observed
defendant selling drugs in the apartment.
A.
Reliability
and Corroboration
As defendant’s brief correctly
notes, the affidavit supporting the warrant does not contain facts directly
establishing the reliability of the informant (e.g., that the informant was a
disinterested citizen or had a track record for accuracy). However, as we will explain, the supporting
affidavit is nonetheless sufficient.
1.
Informant Reliability Jurisprudence Before
Prior to the Supreme Court’s
clarification in 1983, some courts applied a rigid two-prong test for
determining whether an informant’s tip establishes the requisite probable cause
to support a search warrant. (
230 & fn. 5 (Gates) citing
A.2d 847, 861 and People v. Gates (Ill.
1981) 423 N.E.2d 887 revd. 462 U.S. 213.)
The “original phrasing†of the two-pronged test is set forth in an
earlier Supreme Court case, Aguilar v.
State of Texas (1964) 378 U.S. 108 (Aguilar),
abrogated by Gates,
supra, at p. 230, fn. 6.) The two Aguilar
prongs, as applied by some courts, required that a warrant’s supporting
affidavit set forth both: (1) the basis
for the informant’s knowledge; and (2) facts establishing the informant’s
veracity or the reliability of the informant’s report. (Gates,
supra, 462 U.S. at pp. 228-229.) Some courts were treating the two prongs as
entirely separate requirements which must be independently satisfied in every
case to sustain a determination of probable cause. (Id.
at p. 229, fn. 4.)
2.
Gates’s
Replacement of the Two-Prong Test
In Gates, the Supreme Court abandoned this two-pronged test and
replaced it with a totality-of-the-circumstances analysis. (Gates,
supra, 462 U.S. at p. 238.) In so
doing, the Supreme Court clarified both the role of the magistrate issuing the
warrant and our role as a reviewing court:
“The task of the
issuing magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial basis for ...
conclud[ing]’ that probable cause existed.
[Citation.]†(
v. Kraft (2000) 23 Cal.4th 978, 1040-1041, overruled on other grounds by
Gates
has a number of implications relevant here.
First, Gates makes clear that
the “reliability†prong is no longer a strict, unyielding prerequisite to a
finding of probable cause. Thus, the
supporting affidavit’s lack of information regarding the informant’s
reliability is not necessarily fatal to the warrant here. Rather, it is one important factor to have
been considered by the magistrate.
Second, Gates makes equally clear that the “reliability†issue remains
important to the probable cause analysis.
That is, the reliability issue remains relevant whether it is viewed as
an Aguilar “prong†or a
reliability concerns can be satisfied in a variety of ways.
Aguilar
set forth the original phrasing of the two prong test as follows:
“Although
an affidavit may be based on hearsay information and need not reflect the
direct personal observations of the affiant, [citation], the magistrate must be
informed of some of the underlying circumstances from which the informant
concluded that the narcotics were where he claimed they were, and some of the
underlying circumstances from which the officer concluded that the informant …
was ‘credible’ or his information ‘reliable.’ †(Aguilar,
supra, 378 U.S. at 114 revd.
Reliability concerns can be
assuaged by facts tending to show the credibility of
either the informant or
the information provided (or both). This
explains why, post-Gates, an
informant’s track record is only one of many ways to establish veracity. (United
States v. Angulo-Lopez (9th Cir. 1986) 791 F.2d 1394, 1397.) Veracity may also be established by admission
against penal interest or independent police corroboration. (Ibid.) An untested informant’s tip can also supply
probable cause where firsthand knowledge of a crime is shown. (Cf. United
States v. Tirado (3d Cir. 2005) 133 Fed.Appx. 13, 17. See also People
v. Dolly (2007) 40 Cal.4th 458, 468 citing United States v. Perkins (2004) 363 F.3d 317, 322 [contemporaneous
viewing of suspicious activity enhances tip’s reliability].)
Therefore,
we hold that the absence of facts in a supporting affidavit directly showing
reliability of the informant (e.g., track record of accuracy, etc.) is not
fatal to the warrant where, as here, credibility is shown through: (1) the informant’s personal, firsthand
observation of criminal activity, and (2) corroboration by law enforcement.
3.
The Informant’s Personal Observation of Criminal
Activity
The informant cited in Deputy
Bravo’s affidavit personally observed defendant sell drugs in the
apartment. This weighs in favor of the
tip’s credibility. (United States v. Tirado, supra,
133 Fed.Appx. at p. 17; People v. Dolly,
supra, 40 Cal.4th at p. 468.) Moreover, it distinguishes the primary case
on which defendant relies:
Cal.App.4th 1107 (Bailey).
In Bailey, two informers observed heavy foot traffic in and out of an
apartment. (Bailey, supra, 11
Cal.App.4th at p. 1110.) Based on the
heavy foot traffic, the informants concluded that the defendant was dealing
drugs and engaging in prostitution. (Id. at
p. 1112.) This inferential step troubled
the Bailey court. (Ibid.
[“ ‘Heavy foot traffic’ does not necessarily engender criminal
behavior.â€].) The Second District held
that heavy foot traffic, alone, was insufficient to establish probable
cause. (Id. at pp. 1111-1113.)
name="_ftnref7" title="">[7]
Bailey
is inapposite to the present case.
focused on the alleged unreliability of the informants, but rather on the
propriety of inferences drawn from their observations. (See Bailey,
supra, 11 Cal.App.4th at
pp.1111-1113.)
There was no indication that the
informants in Bailey had ever
witnessed a crime. (Bailey, supra, 11
Cal.App.4th at p. 1113.) In contrast, the supporting affidavit here
sets forth the informant’s personal observation of defendant selling drugs in
the apartment.
title="">[8]
4.
Law Enforcement Corroboration of the Confidential
Informant’s Information
The veracity of the informant’s
information was further bolstered by law
enforcement’s independent corroboration.
It is
important to note at the outset that law enforcement need not corroborate every
single tip or piece of information provided by an informant. (See United
States v. Martinez-Garcia (9th Cir. 2005) 397 F.3d 1205, 1216;
11, 20 fn. 6.)
Here, the
superior court was satisfied that law enforcement sufficiently corroborated the
informant by surveilling the premises and finding methamphetamine on a female
subject who was stopped after exiting the apartment and driving away. Moreover, law enforcement confirmed the
identity of defendant and his prior narcotics-related violations.
From these
facts, the magistrate and superior court concluded that sufficient probable
cause had been established. Under the
test, we see no basis for disturbing those determinations.
B.
“Stalenessâ€
Defendant next argues that the
information set forth in the affidavit was “stale†and therefore incompetent to
supply probable cause.
The law on this issue is
well-established:
“No bright-line rule
defines the point at which information is considered stale. [Citation.]
Rather, ‘the question of staleness depends on the facts of each
case.’ [Citation.] ‘If circumstances would justify a person of ordinary
prudence to conclude that an activity had continued to the present time, then
the passage of time will not render the information stale.’ [Citation.]
[¶] Courts have upheld warrants
despite delays between evidence of criminal activity and the issuance of a
warrant, when there is reason to believe that criminal activity is ongoing or
that evidence of criminality remains on the premises. [Citations.]â€
(People v. Carrington (2009)
47 Cal.4th 145, 163-164.)
We look at the circumstances
without applying bright-line rules or counting days like “a merchant would
beads on an abacus.†(
2011) 665 F.3d 1, 13.)
Here, there were a number of facts
contained in the affidavit that were undoubtedly “freshâ€: heavy and unusual foot traffic at the
apartment, and a female being stopped with methamphetamine after leaving the
apartment. These facts justify a
conclusion that the illegal activity witnessed by the informant continued to
the time the warrant was sought.
name="_ftnref9" title="">[9] Therefore, the passage of time did not render
the information stale. (See
CONCURRENT SENTENCES ON COUNTS III AND IV
Defendant
argues that section 654 requires that the sentences on counts III and IV be
stayed. In deciding this issue, we must
first determine whether defendant’s claim is cognizable on appeal. We conclude that it is. Therefore, we subsequently address the merits
of defendant’s claim and conclude that a stay of the sentences on counts III
and IV is required.
A.
Defendant’s
section 654 claim is not barred on appeal
Section 654 claims are not waived
by failing to object in the lower court.
(People v. Hester (2000) 22
Cal.4th 290, 295.) “ ‘Errors in the
applicability of section 654 are corrected on appeal regardless of whether the
point was raised by objection in the trial court or assigned as error on
appeal.’ [Citation.]†(
However, California Rules of Court,
rule 4.412(b) sets forth an explicit exception to this general rule of
nonwaiver. The rule states:
“By agreeing to a
specified prison term personally and by counsel, a defendant who is sentenced
to that term or a shorter one abandons any claim that a component of the
sentence violates section 654’s prohibition of double punishment, unless that
claim is asserted at the time the agreement is recited on the record.†(Cal. Rules of Court, rule 4.412(b) (“Rule
4.412(b)â€).)
The People argue defendant is
estopped
title="">[10]
from raising a section 654 claim, relying on the California Supreme Court case,
People v. Hester,
California Rules of Court, rule 4.412(b).
We conclude that Hester is
inapposite and that no abandonment of the section 654 claim occurred.
In Hester, the defendant entered no contest pleas to five substantive
counts and admitted a deadly weapon allegation in exchange for an agreed term
of four years in prison. (
At the sentencing hearing, no section 654 claim was made by defense
counsel. (Ibid.) The superior court
imposed a four-year prison term for the burglary count, concurrent three-year
terms for the counts of felony assault and dissuading a witness, and concurrent
jail terms for the misdemeanor counts. (
Defendant appealed and petitioned for a writ of habeas corpus. (Id. at
p. 294.) The Court of Appeal
modified the judgment to reflect a stay of the concurrent terms imposed for the
felony assault and dissuading counts.
The Supreme Court reversed, holding that the conditions for abandonment
of section 654 claims set forth in Rule 4.412(b)’s predecessor, rule 412(b),
had been met. (Hester, supra,
specified prison term and was sentenced to that same term; and no claim was
asserted at the change of plea hearing on section 654 grounds. (Hester,
supra, at p. 296.) Therefore, the Court held, rule 412(b)’s
abandonment rule applied, and the defendant could not raise a section 654 claim
on appeal. (Hester, supra, at pp. 295-296.)
Hester
is distinguishable.
name="_ftnref11" title="">[11] Rule 4.412(b) requires that a defendant
assert his or
her section 654 claim when the plea agreement is recited on
the record to avoid abandoning the claim.
(Cal. Rules of Court, rule 4.412(b).)
The Hester defendant did not
do so. (Hester, supra, 22 Cal.4th
was an integral part of Hester’s Rule
4.412(b) analysis and holding.
“He [defendant] did
not raise a section 654 objection to any possible concurrent terms ‘at the time
the agreement [was] recited on the record,’ namely, at the change of plea
hearing. Therefore, he abandoned ‘any
claim that a component of the sentence violates section 654’s prohibition of
double punishment.’ †(Hester,
Conversely, the defendant before us
did assert a section 654 claim at the change of plea hearing. At the hearing, defense counsel stated: “… two of those counts will have to be
stayed under Section 654, but that can be taken up at the time of sentencing.†This assertion of the section 654 claim
triggered the exception set forth in Rule 4.412(b). It also distinguishes this case from
supra, 22 Cal.4th at pp. 293, 296;
850, 873 [defendant raised no section 654 claim with trial court];
Cal.App.4th 837, 841 [defense counsel did not raise double punishment issue
when defendant entered plea].)
Concluding that no abandonment of
defendant’s section 654 claims occurred at the change of plea hearing, we next
consider the People’s apparent contention that grounds for estoppel arose
later, at the sentencing hearing.
Before and during the sentencing
hearing, defense counsel asserted a section 654 claim. Nonetheless, the court indicated that there
must have been a misunderstanding, because the plea form stated all sentences
were to run concurrently. The court then
stated: “I’m assuming Mr. Cruz does not
wish to withdraw his plea?†Defense counsel
responded: “No, your Honor.â€
First, we note that under Rule
4.412(b)’s exception, a section 654 claim need only be raised
the record. (Cal. Rules of Court,
rule 4.412(b).) In this case, the
agreement was recited on the record at the September 29, 2011, change of plea
hearing. Defendant’s section 654 claim
was raised at that hearing. Rule
4.412(b) contains no requirement that a defendant must subsequently reassert a
section 654 claim after the initial assertion.
Therefore, we question whether the sentencing hearing is relevant at
all, given that Rule 4.412(b)’s exception was triggered at the prior change of
plea hearing.
Second, Rule 4.412(b) does more
than set forth conditions for finding abandonment in positive terms. The rule also sets forth an exception which,
when applicable, precludes a finding
of abandonment. When a defendant (1)
agrees to a specified term; (2) is sentenced to an equal or lesser term, and
(3) asserts a section 654 claim when the agreement is recited on the record, no
abandonment occurs. (Cal. Rules of
Court, rule 4.412(b).) Defense counsel
asserted the section 654 claim at the change of plea and sentencing hearings.
Does
section 654 apply?
Section 654, subdivision (a)
states, in part:
“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.…â€
(§ 654(a).)
This provision prohibits multiple
punishments for: (1) a single act; (2) a
single omission; or (3) an indivisible course of conduct. (People
v. Deloza (1998) 18 Cal.4th 585, 591.)
When a defendant is convicted of two offenses falling within the ambit
of section 654, the execution of one of the sentences must be stayed. (People
v. Deloza, supra, at p. 592.)
The recent California Supreme Court
decision in People v. Jones (2012) 54
Cal.4th 350 (Jones) is instructive in
resolving the section 654 issue presented here.
In Jones, the defendant was
driving with a loaded .38-caliber revolver.
(Jones, supra, at
p. 352.) The defendant was
convicted of three crimes: (1)
possession of a firearm by a felon; (2) carrying a readily accessible concealed
and unregistered firearm; and (3) carrying an unregistered loaded firearm in
public. (Ibid.) He was sentenced to
concurrent three-year prison terms on each of the three counts, plus a one-year
enhancement. (Ibid.)
The defendant appealed, arguing
that execution of his sentences on two of the counts had to be stayed under
section 654. (Jones, supra, 54 Cal.4th
at p. 352.) The California Supreme Court
agreed, holding that a single physical act which violates multiple provisions
of law may only be punished once under section 654. (Jones,
supra, at p. 358.)
The court concluded that the
current state of section 654 jurisprudence was untenable. (Jones,
supra, 54 Cal.4th at p. 357.) In that vein, the court reversed
115 (Harrison). These reversals help shape the contours of
section 654 law, which in turn guides our analysis.
In Hayes, the defendant drove while intoxicated and without a valid
license. (Jones, supra, 54 Cal.4th at p. 355.)
He pled guilty to the separate offenses of driving with knowledge of a
suspended license and while under the influence of intoxicating liquor. (Hayes,
supra, 70 Cal.2d at p. 605.) He was sentenced for both offenses. (Ibid.)
The Hayes court held that the sentencing on both violations did not run
afoul of section 654. (
Hayes recognized that the
crucial inquiry in section 654 cases is determining whether there is a “single
act†being punished. (
court held that the appropriate mode of analysis was to examine only the
with a suspended license and driving while intoxicated), not the
determine if there was a “single act.†(
rejected the contention that because both violations were predicated on the
singular act of driving, they can only be punished once. (Ibid.) This contention, rejected by the
statement of California law under Jones. As the Supreme Court succinctly held: “Section 654 prohibits multiple punishment
for a single physical act that violates different provisions of law.†(
Similarly, in Harrison, the defendant was convicted of possession of a revolver
by a felon and carrying a loaded firearm in a vehicle on a public street. (Harrison,
supra, 1 Cal.App.3d at p. 118.) Relying on Hayes, the Harrison court
held that the defendant’s sentence did not violate section 654.
The Harrison decision added an additional component to its
reasoning. The Harrison decision describes the distinct goals of the two violated
statutes: eliminating the potential
hazard posed by an ex-felon’s possession of firearms (whether loaded or not);
and eliminating the potential hazard posed by any person carrying a loaded
firearm in public (whether a felon or not).
(Harrison, supra, 1 Cal.App.3d
at p. 122.) Citing Neal v. State of California (1960) 55 Cal.2d 11, 19-20, disapproved
on other grounds by People v. Correa
(2012) 54 Cal.4th 331, the Harrison court
concluded that the “intent or objective†underlying the criminal conduct was
therefore not singular, but several. (
the Supreme Court rejected this analysis as well, noting that the legal rules
it logically engenders are inconsistent with section 654’s actual
language. (See Jones, supra, 54 Cal.4th
at p. 355.)
We glean two points of law from
and Harrison that are
particularly relevant here. First, we
are to look at whether a single physical
act is being punished (not whether distinct criminal
acts are being punished). (Jones,
statutes that defendant violated have distinct purposes. (Id. at
355.)
It is against this backdrop that we
evaluate the facts of the present case.
In count
I, it was alleged that defendant willfully and unlawfully
possessed methamphetamine for purpose of sale.
Count III alleged that defendant willfully and unlawfully possessed
methamphetamine. As explained
there is a single physical act at issue with respect to both counts.
Only a single physical act occurs by virtue of possessing an object, regardless
of how many intentions the possessor may have for the object. The same principle applies to possession of
re Johnson (1966) 65 Cal.2d 393; People
v. Schroeder (1968) 264 Cal.App.2d 217, 227-228 [possession of volumes of
the same type of substance is a single criminal offense].) Here, there is only one physical act
underlying counts I and III: possession
of methamphetamine; and one physical act underlying counts II and IV: possession of hydrocodone.
testimony regarding intent to sell distinguish between the methamphetamine
found in the bathroom with the methamphetamine found in the bedroom.
singular act of possession underlying both counts.
Our analysis is unaffecte
multiple criminal objectives in possessing the methamphetamine. The number of criminal objectives a defendant
entertains is only relevant in cases involving multiple physical acts. (People
v. Mesa (2012) 54 Cal.4th 191, 198-199.
See also People v. Mendoza (1997)
59 Cal.App.4th 1333, 1345-1346, superseded by statute or other grounds as
recognized in People v. Franz (2001)
88 Cal.App.4th 1426.) As explained
above, this is not such a case. So,
rather than attempting to divine what objective or objectives defendant might
have had in possessing the methamphetamine, “we find it better to rely on
section 654’s actual language in resolving this single-act case.†(See Jones,
supra, 54 Cal.4th at p. 360.) In so doing, our analysis becomes
simple: the superior court imposed
multiple concurrent
name="_ftnref15" title="">[15]
jail sentences on a single physical act.
Under Jones, this was
impermissible.
III.
EQUAL PROTECTION RIGHTS
Defendant argues that
that section 4019 be applied retroactively.
We reject this contention briefly, having recently rejected it at
greater length in People v. Ellis (2012)
207 Cal.App.4th 1546 (Ellis). (See also People
v. Brown (2012) 54 Cal.4th 314 (Brown);
People v. Kennedy (2012) 209
Cal.App.4th 385.)
The first prerequisite to an equal
protection claim is a showing that a legal classification treats similarly
situated groups unequally. (
at pp. 328-329.) Reviewing courts determine
whether groups are “similarly situated†in the specific context of the law
being challenged; not whether the groups are “similarly situated†in all
respects. (Ellis, supra, at p. 1551.)
In Brown, the California Supreme Court noted that the purpose of
section 4019 is incentivizing good behavior.
prisoners who served time before the incentives took effect and thus could not
have modified their behavior in response.…’ †(Ellis,
supra, 207 Cal.App.4th at p. 1551,
quoting Brown, supra, 54 Cal.4th at pp. 328-329.)
Therefore, prisoners who served time before and after amendments to
section 4019 are not “similarly situated†for equal protection purposes. (Ellis,
4019 treats “similarly situated†groups unequally, he asserts no cognizable
equal protection claim.
The judgment is modified to reflect
a stay of the execution of the two concurrent three-year jail sentences on
counts III and IV, pursuant to section 654.
The imposition of the $50 drug laboratory fees and $100 drug program
fees on counts III and IV, are stayed pursuant to section 654. (People
v. Sharret (2011) 191 Cal.App.4th 859 [drug laboratory fee is a penalty];
1690 [drug program fee is a penalty].)
As modified, the judgment is affirmed.
The matter is remanded to the trial court to amend the abstract of
judgment accordingly, and to transmit certified copies of the amended abstract
to all appropriate parties and entities.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Kane, J.
Defendant was also charged with one count of destruction of evidence in connection
with the drug charges (Pen. Code, § 135), which was eventually reduced to an
attempt charge (Pen. Code, §§ 135 & 664).
All further statutory references are to the Penal Code unless otherwise stated.
