P. v. Hilliard

 

 

 

 

 

 

 

 

Filed 9/14/12  P. v.
Hilliard 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Tehama)

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>

THE PEOPLE,             Plaintiff and Respondent,        v.   MARTY DUPREE HILLIARD,             Defendant and Appellant.

C067574   (Super. Ct. No. NCR79807)

     A jury found
defendant Marty Dupree Hilliard guilty of transportation
of a controlled substance (Health & Saf. Code, § 11352, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1]
and resisting arrest (Pen. Code § 148, subd. (a)(1)).  In bifurcated
proceedings, the trial court found defendant had two prior prison terms
within the meaning of Penal Code section 667.5, subdivision (b), and a prior
controlled substance conviction within the meaning of section 11370.2.  Defendant was sentenced to an aggregate term
of 10 years, which included a consecutive three-year term for the prior
controlled substance conviction. 

     With regard to the
prior controlled substance conviction, which occurred in Oregon,
defendant argues the trial court erroneously concluded that “delivery” under Oregon
law equates with “transportation” under California
law.  Because California
law does not expressly include “delivery,” defendant argues that the
consecutive three-year term should be stricken. 
We conclude that the record of the Oregon
prior conviction presented by the prosecution at the bifurcated proceedings
contains insufficient facts to support the trial court’s finding that the prior
controlled substance conviction qualified as an enhancement.  Accordingly, we reverse the finding and
remand for retrial on the enhancement allegation and resentencing.href="#_ftn2" name="_ftnref2" title="">[2]


>DISCUSSION

     Section 11370.2,
subdivision (a), provides:  “Any person
convicted of a violation of, or of a conspiracy to violate, Section 11351,
11351.5, or 11352 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, 11351.5,
11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383,
whether or not the prior conviction resulted in a term of imprisonment.” 
Out-of-state prior convictions may qualify as enhancements.  (§ 11370.2, subd. (f).)

     Here, the
information alleged, pursuant to section 11370.2, subdivision (a), that
defendant was convicted on March 3, 2005, in Jackson County, Oregon,
Superior Court case No. 040729AFE of violating Oregon Revised Statutes
section 475.992. 

     “A common means of
proving the fact and nature of a prior conviction is to introduce certified
documents from the record of the prior court proceeding and commitment to
prison, including the abstract of judgment describing the prior offense.  [Citations.] 
[¶] ‘[The] trier of fact is entitled to draw reasonable inferences from
certified records offered to prove a defendant suffered a prior
conviction . . . .’ 
[Citations.]  . . . [¶]
Thus, if the prosecutor presents, by such records, prima facie evidence of a
prior conviction that satisfies the elements of the recidivist enhancement at
issue, and if there is no contrary evidence, the fact finder, utilizing the
official duty presumption, may determine that a qualifying conviction
occurred.  [Citations.]  [¶] However, if the prior conviction was for
an offense that can be committed in multiple ways, and the record of conviction
does not disclose how the offense was committed, a court must presume the
conviction was for the least serious form of the offense.  [Citations.] 
In such a case, if the statute under which the prior conviction occurred
could be violated in a way that does not qualify for the alleged enhancement,
the evidence is thus insufficient, and the People have failed in their
burden.  [Citations.]  [¶] On review, we examine the record in the
light most favorable to the judgment to ascertain whether it is supported by
substantial evidence.  In other words, we
determine whether a rational trier of fact could have found that the
prosecution sustained its burden of proving the elements of the sentence
enhancement beyond a reasonable doubt. 
[Citations.]”  (People v.
Delgado (2008) 43 Cal.4th 1059, 1066-1067.) 

     To prove the prior
Oregon conviction, the
prosecution introduced into evidence the following documents:  the indictment, the petition to enter a plea
of guilty, and the judgment.  The
indictment alleged in count I that defendant violated Oregon Revised
Statutes section â€œ475.999, class A felony, crime category 8.”  Defendant was “accused by the Grand Jury of
the County of Jackson by this indictment of the crime of [¶] delivery of a
controlled substance committed as follows: 
[¶] The said defendant, on or about the 11th day of February, 2004, in
the said County of Jackson and State of Oregon, then and there being, did
unlawfully and knowingly deliver cocaine, a schedule II controlled substance,
contrary to the statutes in such cases made and provided, and against the peace
and dignity of the State of Oregon.”  The
allegation that defendant committed the offense within 1,000 feet of a school
was deleted by handwritten strike-through.href="#_ftn3" name="_ftnref3" title="">[3]  Defendant was also accused in the indictment
of manufacture of cocaine within 1,000 feet of a school (count II) and
being a felon in possession of a firearm (count III). 

     The petition to
enter a plea of guilty signed by defendant on March 3, 2005, reflects that defendant pled guilty to
“Count I (Delivery of a Controlled Substance)” and “Count III (Felon
in Possession of a Firearm),” and that the factual basis for the plea was “as
alleged in the Indictment.” 

     The judgment of
conviction reflects that defendant was convicted based on his guilty plea of
delivery of a controlled substance (under Oregon Revised Statute 475.992A) and
being a felon in possession of a firearm. 
It further reflects that count II was dismissed.  The court granted probation for a term of two
years “subject to 120 sanction units with 60 jail units” on count I and 15
months incarceration on count III. 

     The trial court
determined that defendant’s prior Oregon
conviction was the equivalent of violating California’s
transportation offense (§ 11352, subd. (a)).  At the time defendant was sentenced, section
11352, subdivision (a), provided that “every person who transports, imports
into this state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give away, or
attempt to import into this state or transport . . . any controlled
substance [including cocaine] . . . shall be punished by imprisonment
in the state prison for three, four, or five years.”

     Oregon Revised
Statutes section 475.992, which was renumbered to 475.840 after the date of
defendant’s offense, makes it unlawful for “any person to manufacture or
deliver a controlled substance” listed in title 21, section 812,
schedule II of the United States Code, which includes cocaine.  (Or. Rev. Stat. § 475.992, subd. (1)(b),
now § 475.840, subd. (1)(b); see Or. Rev. Stat. § 475.005,
subd. (6); 21 U.S.C. § 812, schedule II(c); State v.
Alvarez-Garcia (Or.Ct.App. 2007) 159 P.3d 357.)  “‘Deliver’ or ‘delivery’ means the actual,
constructive or attempted transfer, other than by administering or dispensing,
from one person to another of a controlled substance, whether or not there is
an agency relationship.”  (Or. Rev. Stat.
§ 475.005, subd. (8).) 
“‘Person’ includes a government subdivision or agency, business trust,
estate, trust or any other legal entity.” 
(Or. Rev. Stat. § 475.005, subd. (17).)  Defendant argues that because section 11352,
subdivision (a), does not include the word “delivery,” his Oregon offense does
not qualify as a prior controlled substance conviction. 

     Defendant’s
argument that delivery of cocaine in violation of Oregon Revised Statutes
former section 475.992 does not necessarily, under the least adjudicated
elements test, equate with transportation of cocaine under section 11352, subdivision
(a), has merit.  Under Oregon
law, delivery includes an attempt to transfer a controlled substance.  An attempt to transfer is sufficient to
constitute a violation of Oregon Revised Statutes section 475.992 (now
§ 475.840).  (State v. Alvarez-Garcia,
supra, 159 P.3d at p. 358.)

     In California,
“attempts of most crimes are not defined within a statute, but are governed by
the general attempt statute . . . .  [Citation.]” 
(People v. Medina
(2007) 41 Cal.4th 685, 697.) 
“Although certain crimes and a conspiracy to commit certain crimes are
listed [in section 11370.2, subdivision (a)], an attempt to commit a
certain crime is not listed.  An attempt
to commit a crime is neither a completed crime nor a conspiracy to commit a
crime.  An attempt is an offense
‘separate’ and ‘distinct’ from the completed crime.  [Citations.]” 
(People v. Reed (2005) 129 Cal.App.4th 1281, 1283 (Reed).)  “As the statute now reads, neither a current
conviction of an attempt to commit a specified crime nor a prior conviction of
an attempt to commit a specified crime supports an enhancement under section
11370.2, subdivision (a).  ‘[I]f the
Legislature had intended to include attempts in the enhancement provisions, it
would have specifically stated the enhancement applie[d] to the “commission or
attempted commission” of specific crimes . . . .’  [Citation.]” 
(Reed, at p. 1285.) 
 

     Under the
principle set forth in Reed, attempt
is not a separate crime from the completed crime unless the statute includes
attempt to commit the crime as an offense. 
Here, section 11352, subdivision (a), expressly includes an “attempt” to
“import” or “transport.”  Such attempts
are treated as separate crimes from the completed crime of importing or
transporting and are punished the same as the completed crime.  However, the principle in Reed, supra, 129 Cal.App.4th 1281 applies here
because section 11352, subdivision (a), does not include other attempted
transfers, that is, an attempt to sell, furnish, or give away, or attempted
offers to do so, or an attempt to offer to import or transport.

     No evidence was
presented with respect to the facts underlying defendant’s Oregon
conviction.  When defendant entered his
plea, he agreed that the factual basis was “as alleged in the indictment.”  The indictment alleged that defendant “did
unlawfully and knowingly deliver cocaine, a schedule II controlled
substance.”  There was no evidence
presented that defendant’s prior href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Oregon
conviction involved a completed delivery rather than an attempted delivery or
what type of transfer was involved.

     Additionally,
under Oregon law, a trace amount
of a controlled substance is sufficient for conviction.  (State v. Henry (Or.App. 1992) 840
P.2d 1335.)  In California,
a usable quantity is required. 
“Transportation of a controlled substance is established by carrying or
conveying a usable quantity of a controlled substance with knowledge of its
presence and illegal character.”  (People
v. Meza (1995) 38 Cal.App.4th 1741, 1746.)

     In sum, the People
did not establish that defendant’s prior Oregon
conviction was for an offense that qualified as an enhancement under section
11370.2, subdivision (a).  If defendant’s
Oregon conviction involved an
attempted delivery or transfer, other than an attempt to “import” or
“transport,” the offense would not qualify as an enhancement under section
11370.2, subdivision (a).  Likewise,
defendant’s Oregon conviction
would also not qualify as an enhancement under section 11370.2, subdivision
(a), if defendant delivered only a trace amount of cocaine.  Accordingly, we reverse the trial court’s
finding and remand for retrial of the prior conviction allegation.  Retrial of a prior conviction allegation is
not barred.  (People v. Barragan
(2004) 32 Cal.4th 236, 241.)  

DISPOSITION

     The trial court’s
finding on the prior controlled substance conviction allegation is
reversed.  The matter is remanded to the
trial court for further proceedings.  In
all other respects, the judgment is affirmed. 


 

 

 

                                           HOCH         , J.

 

 

 

We concur:

 

 

 

            RAYE         , P. J.

 

 

 

           MAURO         , J.