P. v. Morales
Filed 2/1/13 P. v. Morales CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
>
THE PEOPLE, Plaintiff and Respondent, v. RICARDO MORALES, Defendant and Appellant. | B236088 (Los Angeles County Super. Ct. No. BA 384345) |
APPEAL from
a judgment of the Superior Court
of
County, Jose Sandoval, Judge.
Affirmed in part; reversed in part and remanded.
Kari E.
Hong, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Sarah J.
Farhat and Dana M. Ali, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *
Ricardo
Morales appeals from the judgment entered following a court trial that resulted
in his conviction for possession of
marijuana while driving, an infraction, as charged in count 5 of the
information, and a jury trial that resulted in his convictions for felony driving
under the influence of PCP
name="_ftnref1" title="">[1] (count 1), felony possession of PCP (count
2), and misdemeanor being under the
influence of PCP (count 3), and court findings that he had suffered two prior
convictions for driving under the influence of alcohol and/or drugs as alleged
in count 1.
title="">[2]
Appellant
was sentenced to prison for the total term of three years eight months,
consisting of the three-year upper term on count 1 and eight months, or
one-third the two-year middle term, on count 2.
On count 3, the court sentenced him to 180 days in county jail but
stayed service of the sentence pursuant to Penal Code section 654.
county jail sentence.
Appellant
contends the trial court erred in failing to stay his sentence on count 2,
because his driving under the influence of PCP (count 1) is indivisible from
his possession of PCP (count 2), and thus, section 654 applies to bar separate
punishments on counts 1 and 2. He
further contends the trial court erred in imposing a sentence of imprisonment
for the infraction offense in count 5.
Respondent
concedes the trial court erred in imposing a two-day county jail sentence on
count 5 but contends the case must be remanded for the trial court to impose a
monetary fine within the scope of its discretion. Respondent contends the sentence on count 3
was improperly stayed under section 654 and that remand for resentencing as to
this count also is required.
We note the record does not
appear to indicate any disposition of the two prior prison term allegations,
each of which, if found true, requires the imposition of a one-year enhancement
(§ 667.5, subd. (b)), unless stricken (§ 1385, subd. (a)).
We conclude
section 654 does not bar punishment for the offense in count 2, because
appellant’s possession of PCP (count 2) is a distinct and separate physical act
from his driving while under the influence of PCP (count 1). In contrast, the trial court did not err in
staying the sentence for the offense in count 3, because appellant’s
convictions for driving while under the influence of PCP (count 1) and for
being under the influence of PCP (count 3) arose from the same contemporaneous
criminal conduct of appellant being under the influence of PCP at the time
these offenses were committed.
We find well-taken
respondent’s concession that the trial court erred in imposing imprisonment as
punishment for the infraction offense in count 5. The sentence on count 5 therefore must be
vacated and the matter remanded to the trial court for resentencing. Remand for further proceedings regarding the
disposition of the two prior prison term allegations is also necessary. In all other respects, we affirm the
judgment.
We review the evidence, both
direct and circumstantial, in light of the entire record and must indulge in
favor of the judgment all presumptions as well as every logical inference that
the jury could have drawn from the evidence.
(People v. Maury (2003) 30 Cal.4th 342, 396; see also People
v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Ochoa (1993) 6
Cal.4th 1199, 1206.)
On January
21, 2011, about 4:00 p.m., appellant drove his car about 15 to 20 miles per
hour up an on-ramp to the northbound Interstate Route 5 freeway in Los Angeles County. His car then drifted right to left across
four lanes of traffic, struck the center divider, and bounced back into the two
lanes to the right before drifting back.
The car hit the center divider at an angle and came to a stop on the
left shoulder of the road. Brian
McWilliams, an eyewitness, approached appellant, who had exited the car and
stood at the center divider. Appellant
appeared confused, made erratic motions, and “looked like he was not in his
right mind.†McWilliams assisted
appellant to sit on the ground. When
asked if he were okay, appellant did not respond. He did not appear to know where he was nor to
be aware that McWilliams was speaking to him.
Appellant had a “wild look in his eye†and seemed impaired.
Upon responding to the scene,
California Highway Patrol Officer Mahmood Khan smelled a strong PCP odor
emanating from appellant. He physically
had to help appellant rise from the ground due to his inability to keep his
balance. When Khan spoke to him,
appellant stared blankly and said, “huh.â€
His eyes were “glassy.†Khan believed
appellant was under the influence of drugs or alcohol. He attempted to administer a field sobriety
test but ceased after appellant proved to be unresponsive.
During a search, Khan recovered from
appellant’s sock a small glass vial containing a small amount of liquid that
smelled like PCP and a plastic bag with a green leafy substance that smelled
like marijuana. The bag contained 5.47
grams of plant material containing marijuana, and the vial contained 0.8 milliliters
of liquid containing PCP.
Kahn showed the recovered PCP and
marijuana to Officer Oscar Chavez, a drug recognition expert. When Chavez asked appellant what he had in
his possession, he admitted that the PCP and marijuana belonged to him and he had
bought both the same day of the accident.
He related that he bought “approximately $40 of marijuana a week in
order to help him sleep,†and he used PCP “recreationally†when attending
parties. Appellant ingested PCP by
dipping a marijuana cigarette in liquid PCP and then smoking it. “Zig-Zags†are small white pieces of paper
about two to three inches square, sold in a package, and used to wrap
tobacco. They are also used to wrap
marijuana to make a marijuana cigarette or “joint.†Chavez was unaware of anyone finding that
type of paper in this case.
Officer Chavez opined that if the
PCP-dipped marijuana cigarette were smoked, it would take a minute to up to
five minutes for the user to feel the effects of the PCP, which would peak
about 15 minutes to a half hour afterward but the effects could last in the
user’s system up to six hours or even several days.
Appellant denied smoking PCP the day
of the accident but admitted he had purchased the recovered PCP that day for
$20 and intended to use it at a party that night. Officer Chavez opined appellant’s vial of PCP
contained enough liquid for dipping a marijuana cigarette. He also opined appellant was under the
combined influence of PCP and marijuana.
Martin Chenevert, the emergency
physician who examined appellant the day before testifying, testified that
without more information, he could not form an opinion whether appellant
presented “a medical issue or a toxicological ‑‑ or drug issue or
an ingestion issue.â€
1. Section 654 Inapplicable to Count 2 Sentence
Section 654, subdivision
(a), provides in pertinent 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.†“Section 654 prohibits
multiple punishment for a single physical
act that violates different provisions of law.†(People
v. Jones (2012) 54 Cal.4th 350, 358 (Jones),
italics added.) “[T]he law is settled
that the sentences must be stayed to the extent that
at p. 353.)
In this
instance, the offense of possession of PCP (count 2) and that of driving while
under the influence of PCP (count 1) did not arise from “a single physical
act.†The undisputed evidence reflects
appellant did not possess the PCP found in his sock for the purpose of driving
under the influence of PCP. Appellant
had bought the recovered PCP on the date of his accident but before the
accident and for the purpose of ingesting this PCP at a party later that
night. His denial of ingesting PCP on
the date of his arrest leads to the inescapable inference that he had ingested
the PCP under which influence he was driving at some earlier time, at least the
day before. Accordingly, the physical
act of possession of PCP is distinct
and different from the physical act of driving
while under the influence of PCP.
Section 654 therefore is factually inapplicable. (Cf. People
v. Holly (1976) 62 Cal.App.3d 797, 800, 805-806 [§ 654 bars multiple
punishment for possession of heroin in a quantity which defendant could use in
a “relatively short time†and being under the influence of heroin]; but see
710, 726-728 [no § 654 bar for being under the influence of heroin and
possession of heroin where quantity of heroin “could not be used in as short a
time period as was possible in Hollyâ€].)
2. Remand for Resentencing on Count 3 Not
Warranted
Respondent
contends the trial court improperly stayed the punishment for count 3 pursuant
to section 654, because there was no evidence that appellant entertained only a
single objective in being under the influence of PCP (count 3) and driving
while under the influence of PCP (count 1).
Appellant does not challenge respondent’s position.
Initially, we note this
issue is properly before us although respondent has not filed an appeal. “‘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.’†(People v. Hester (2000) 22 Cal.4th
290, 295.) Nonetheless, “on direct
appeal the reviewing court is confined to the record. We cannot remand a case to the trial court
for the purpose of trying an issue raised for the first time on appeal.†(People v. Sparks (1967) 257
Cal.App.2d 306, 311.)
Appellant’s driving while
under the influence of PCP (count 1) and his being under the influence of PCP
(count 3) do not amount to “a single physical act.†Rather, these offenses charged in counts 1
and 3 constitute a course of criminal conduct.
In
Cal.2d 11 (Neal), our Supreme Court
stated “[f]ew if any crimes . . . are the result of a single
physical act†and announced this test:
“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.†(Id.
at p. 19; see also People v. Latimer
(1993) 5 Cal.4th 1203, 1205-1206 [criticizing but not overruling the
punishment for multiple violations of same criminal statute, disapproving
contrary dictum in Neal, supra, at
p. 18, fn. 1].)
Applying
the Neal test, we conclude the trial
court did not err in staying the 180-day jail sentence for appellant’s
conviction for being under the influence
of PCP (count 3), because his intent and objective in that regard is
inseparable, and thus indivisible, from his intent and objective in driving
1).
We are not
persuaded by respondent’s argument to the contrary that “the objective required
for driving under the influence of drugs is simply to move a vehicle
volitionally (provided that the circumstantial element of intoxication is
satisfied)†and that “[b]eing ‘under the influence’ of a drug simply refers to
the circumstance of having one’s ability to operate a motor vehicle
sufficiently impaired by drugs.†This is
a distinction without a difference.
The common
denominator of both counts 1 and 3 is appellant was “under the influence ofâ€
PCP. Although one may commit the crime
of being under the influence of PCP without driving, one cannot commit the
crime of driving while under the influence of PCP unless the driver is under
the influence of PCP. The circumstances
here are unlike the situation in which the defendant already was under the
influence of PCP before he or she began driving under the influence of
PCP. Here, both charges of being under
the influence of PCP (count 3) and driving under the influence of PCP (count 1)
arose from the same contemporaneous criminal conduct of appellant being under
the influence of PCP at the time these crimes were committed. (Cf. People
v. McGuire (1993) 14 Cal.App.4th 687, 690-691, 699 [divisible course of
conduct in that crime of being under the influence of methamphetamine completed
three hours before commission of driving while under its influence, “an
additional separate and distinct offense for which further
punishment . . . properâ€].)
3. Remand for Resentencing on Count 5 Required
Appellant
contends, and respondent concedes, the trial court erred in imposing a two-day
jail term for the infraction offense in count 5. We agree.
In count 5,
appellant was charged with possessing marijuana while driving in violation of
Vehicle Code section 23222, subdivision (b), which provides in pertinent
part: “Except as authorized by law,
every person who possesses, while driving a motor
vehicle[,] . . . not more than one avoirdupois ounce of
marijuana . . . is guilty of an infraction punishable by a fine
of not more than one hundred dollars ($100).â€
“An infraction is not punishable by imprisonment.†(Pen. Code, § 19.6.)
The record
reflects in finding appellant guilty of the count 5 infraction, the trial court
acknowledged “the most [it] can assess in the way of penalty is a hundred
dollars.†The court, however, imposed a
two-day sentence on that count. This was
an unauthorized sentence. (
354.) An unauthorized sentence “is subject to judicial
correction whenever the error comes to the attention of the reviewing
court. [Citations.]†(People
v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) We therefore reverse the sentence on
count 5 and remand the case for the trial court, in the exercise of its
discretion, to impose a fine in an amount no more than $100.
Disposition of Two Prior Prison Term Allegations Required
The record reflects
appellant admitted having suffered the two prior convictions alleged in count
1, which the trial court found true, but it does not appear to indicate any
disposition of the two prior prison term allegations, each of which, if found
true, requires a one-year enhancement (§ 667.5, subd. (b)), unless
stricken (§ 1385, subd. (a)).
On remand, the trial court is
directed orally to set forth the disposition of the two prior prison term
allegations, i.e., whether one or both are true or not and to impose one year
for each prior prison term found true unless, in the exercise of its discretion,
the trial court strikes one or both and sets forth the reasons therefore in the
minutes. (See, e.g.,
386, 390-392, & fn. 2, 400, & fn. 5;
People v. Irvin (1991) 230 Cal.App.3d 180, 191-193; see generally § 1385,
subd. (a).)
Appellant’s
sentence on count 5 is reversed, and the case is remanded to the trial court
for further proceedings in accordance with the views expressed in this
opinion. In all other respects, the
judgment is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
name="_ftn1" title="">[1] PCP
is an acronym for phencyclidine, a controlled substance (Health & Saf.
Code, § 11055, subd. (e)(3)).
name="_ftn2" title="">[2] The
information did not contain a count 4.
That charge was dismissed for insufficient evidence at the preliminary
hearing.
