P. v. Plascencia

Filed 7/16/07 P. v. Plascencia CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs, Judge. Affirmed.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Meagan J. Beale and Raquel M. Gonzalez, Supervising Deputy Attorneys General, and Deana Bohenek and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Armando Plascencia of one count of felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a), count 1) and one count of possession of a hypodermic needle and syringe (Bus. & Prof. Code,  4140, count 2). Furthermore, the trial court found that defendant was in violation of his probation. The court sentenced defendant to the upper term of three years in state prison on count 1 and to a concurrent term of six months on count 2. The court also sentenced defendant to three consecutive terms of eight months each on three matters involving the probation violations.

On appeal, defendant contends that: 1) the trial court abused its discretion in admitting evidence of his prior possession of methamphetamine under Evidence Code section 1101, subdivision (b);^[1] 2) there was insufficient evidence to prove that he had knowledge of the presence of the methamphetamine and syringes, or that he possessed them; and 3) the court erred in imposing the upper term and consecutive terms, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Defendant has submitted a petition for rehearing asserting that Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), requires that a jury find aggravating factors true before a trial court may impose the upper term and consecutive terms. We affirm.

FACTUAL BACKGROUND

On the night of September 1, 2004, defendants mother called the police, and Officer Mario Martinez responded to the call. Defendants mother told him that she and defendant had a disagreement about a wallet that she found inside his pants. Defendants mother found the pants in the washroom inside her home and was going to wash them. She pulled out the wallet from the pants. The wallet contained defendants identification, some photographs, and some drugs. Defendants mother told Officer Martinez that defendant wanted the wallet back because it contained drugs.

Officer Alfredo Verduzco arrived after Officer Martinez. Defendants mother similarly told him that she and her son had an argument, and that she found the wallet in his pants. She told Officer Verduzco that she found defendants pants on the floor near the couch where defendant normally slept. Defendants mother told Officer Verduzco that the items she found inside the wallet included a photograph, an identification card, and a package that resembled salt. She also told Officer Verduzco that she found syringes inside defendants pants pocket. The police later determined that the wallet contained a usable quantity of methamphetamine.

At trial, defendants mother recanted her earlier report to the officers and testified that she found an empty small black bag (the black wallet), two syringes, and a little bindle, next to a pair of mens pants, in her front yard. She said she did not recognize the pants. Defendants mother said that defendants identification was in her home, so she put his identification, a picture of his kids, and the bindle inside the black wallet. That evening, she called the police, and when they arrived, she showed them the wallet. Defendants mother said she put everything in the wallet because she wanted defendant to be arrested. Defendant lived with his mother, and she wanted to go to Mexico but did not trust him to stay in her home alone; thus, she said she wanted him to be arrested and put in jail for a couple of weeks.

Additionally, at trial, the prosecution moved to admit evidence of defendants prior possession of methamphetamine, under section 1101, subdivision (b), in order to show that defendant had knowledge that the substance in the instant case was methamphetamine. The prosecution called witness Officer Michael Smothermon, who testified that, on June 22, 2002, he was patrolling an area, when he saw a truck that was stuck on the side of the roadway. Defendant was standing next to the truck. Officer Smothermon asked defendant if he had any narcotics or weapons, and defendant said he had a little in his pockets. The officer searched him and found a plastic baggie containing methamphetamine and a pipe.

ANALYSIS

I. The Trial Court Properly Admitted Evidence of Defendants Prior Possession of Methamphetamine Under Section 1101

Defendant argues that the court erred in admitting evidence of his prior possession of methamphetamine to prove the element that he had knowledge of the narcotic nature of the drugs in the instant offense. He claims that it was error because the evidence was more prejudicial than probative and because he offered to stipulate to that element. We find no error.

Subdivision (a) of section 1101 prohibits admission of evidence of a persons character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted, superseded by statute on other grounds, as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) Prior act evidence is admissible when relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . . ( 1101, subd. (b).)

One of the crimes charged against defendant was possession of methamphetamine. The elements that the prosecution was required to prove included: 1) defendant exercised control over or the right to control an amount of methamphetamine; 2) defendant knew of its presence; 3) defendant knew of its nature as a controlled substance; and 4) the substance was in an amount usable for consumption. (See People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) The prior incident, during which Officer Smothermon searched defendant and found a plastic baggie containing a pipe and what appeared to be methamphetamine in his pocket, tended to prove that defendant knew that what was found in his pocket in the instant case was methamphetamine. Thus, the prior possession evidence was properly admitted to prove that element.

Furthermore, under section 352, the trial court has the discretion to admit evidence that is relevant to prove a material fact as long as its probative value is not outweighed by its prejudicial effect. (People v. Daniels (1991) 52 Cal.3d 815, 856.) The courts decision to admit evidence under section 352 will not be overturned absent a clear abuse of discretion. (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) Based on the record in this case, we cannot say the trial court abused its discretion in admitting relevant evidence tending to prove a material fact. As the court noted, there was de minimus factual information regarding the events of this case. Thus, the evidence was probative. Moreover, any prejudice was minimized by the courts admonition. At the close of trial, the court instructed the jury that Officer Smothermons testimony was admitted solely for the limited purpose of showing that defendant had knowledge of the nature of the substance in this case being a controlled substance. The court expressly forbade the jury from considering the evidence for any other purpose. It is presumed that the jury followed the courts instruction. [Citation.] (People v. Sanchez (1995) 12 Cal.4th 1, 82.)

Defendant argues that the evidence did not relate to a material fact at issue because he offered to stipulate to the relevant element. The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the states case of its persuasiveness and forcefulness. [Citations.] (People v. Edelbacher (1989) 47 Cal.3d 983, 1007 (Edelbacher).) In the present case, defendant did not offer to stipulate to an actual element of the charge against him. Prior to trial, there was some discussion about the prior possession evidence. The prosecution and the court interpreted People v. Perez (1974) 42 Cal.App.3d 760 (Perez) to require the prosecution to prove that defendant knew the narcotic nature of the substance seized, not just the narcotic nature of methamphetamine in general. (Id. at p. 766.) In Perez, we specifically stated that the prosecution must prove the element of the defendants knowledge of the narcotic character of the substance involved, and that [t]he trial court has the discretion to allow the defendant to admit his knowledge of the narcotic nature of the object involved in the primary prosecution. (Ibid.) In the instant case, defense counsel offered to stipulate that defendant presently knows the narcotic character of methamphetamine and that what [the police] found was methamphetamine. However, defendant expressly stated that he would not stipulate that he [knew] about that methamphetamine that day. Contrary to defendants contention, his stipulation did not lock[ ]up the element for the People. The prosecution needed the prior possessionevidence to establish and persuade the jury that defendant knew that the substance found in his pocket that day was methamphetamine. Thus, the prosecution was not required to accept the proposed stipulation. (See Edelbacher, supra, 47 Cal.3d at p. 1007.)

Defendant asserts in his reply brief that the court in People v. Washington (1979) 95 Cal.App.3d 488 (Washington) interpreted Perez, supra, 42 Cal.App.3d 760, to mean that the defendant may admit his knowledge of the narcotic nature of the [type of] object involved in the primary prosecution. (Washington, supra, at p. 492, italics and brackets in original.) However, the language and meaning of Perez is clear, and we see no reason for the Washington court to have added language to our opinion, or for us to depart from Perez now.

In sum, the trial court properly admitted Officer Smothermons testimony for the limited purpose of determining whether defendant had the requisite knowledge of the controlled substance nature of the contents of the baggie found in the pants. Moreover, the court expressly forbade the jury from considering the evidence for any other purpose.

II. There Was Sufficient Evidence to Support Defendants Convictions

Defendant claims that there was insufficient evidence that he had knowledge of the presence of the methamphetamine and the syringes or that he exercised control over them. We disagree.

A. Standard of Review

To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) It is the exclusive province of the trier of fact to determine the credibility of a witness; thus, we may not redetermine the credibility of witnesses, nor reweigh any of the evidence. (People v. Franz (2001) 88 Cal.App.4th 1426, 1447 (Franz); People v. Poe (1999) 74 Cal.App.4th 826, 830.) Furthermore, [t]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.] [Citation.] (In re Robert V. (1982) 132 Cal.App.3d 815, 821.)

B. There Was Sufficient Evidence

Knowledge of the presence of contraband may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)

Here, the jury was instructed that it had to find, among other elements, that defendant knew of the presence of the methamphetamine and the syringes, and that defendant exercised control over or the right to control the methamphetamine and the syringes. The evidence showed that defendants mother found syringes and a wallet containing methamphetamine in a pair of defendants pants. The wallet also contained defendants identification and some photographs. Moreover, defendants mother told Officer Martinez that she and defendant were arguing over the wallet and that defendant wanted the wallet back because it contained drugs. Viewing the evidence in the light most favorable to the prosecution, as we must, we conclude that there was sufficient evidence to support defendants convictions.

Defendant argues that, at trial, defendants mother gave confusing and contradictory testimony insufficient to establish defendants knowledge of the presence of the methamphetamine or the syringes. We agree, noting that defendants mother recanted most of her statements made to the officers on the day she reported the incident. Nonetheless, Officers Martinez and Verduzco testified that defendants mother reported that she found the methamphetamine and syringes in pants that belonged to defendant. The jury clearly found their testimonies more credible than that of mother, who testified that she found the methamphetamine and wallet in her front yard and placed defendants identification and pictures, along with the methamphetamine, in the wallet. The jury apparently did not believe defendants mothers testimony that she wanted defendant to be arrested and put in jail simply because she could not trust him to stay in her home for two weeks while she was away. We must accept the jurys credibility determination. (Franz, supra, 88 Cal.App.4th at p. 1447.)

III. The Trial Court Properly Imposed the Upper Term and Consecutive Terms

In his opening brief, defendant claimed the trial courts imposition of the aggravated sentence on count 1, and consecutive sentences on the probation violation findings, violated his right to a jury trial under Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), since the sentences were not based on facts found true by a jury beyond a reasonable doubt. On January 19, 2007, we filed an unpublished opinion rejecting defendants claims. Then, on January 22, 2007, the Supreme Court issued its decision in Cunningham, supra, 127 S.Ct. 856, holding that the imposition of an upper term sentence under Californias determinate sentencing law, based on a judges factual findings, violates a defendants federal constitutional right to a jury trial. On February 7, 2007, defendant petitioned this court for a rehearing on his sentencing issues based on Cunningham. He argued that the rule of Cunningham applies not only to upper term sentences, but also to consecutive sentences that are imposed based on a judges findings of fact. We granted the petition solely as to the issues raised in the petition, namely, the effect of the Cunningham decision on the trial courts imposition of the upper term and consecutive sentences. We conclude that the upper term may be affirmed based on recidivist aggravating factors, and that Cunningham does not apply to consecutive sentencing.

In Blakely, the United States Supreme Court affirmed that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) In Cunningham, supra, 127 S.Ct. at page 860, the United States Supreme Court held that the imposition of an upper term sentence under Californias determinate sentencing law, based solely on a judges factual findings, violates a defendants Sixth and Fourteenth Amendment right to a jury trial.

At the outset, the People assert that defendant forfeited his Blakely claim by failing to raise it at the sentencing hearing. We disagree. At the time of defendants sentencing and subsequent appeal, the decision in People v. Black (2005) 35 Cal.4th 1238 (Black) was the controlling precedent. Black held that Blakely did not apply to Californias determinate sentencing law. (Black, supra, at p. 1244.) In light of that holding, it would have been futile for defendant to raise a Blakely objection at sentencing. Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. (People v. Welch (1993) 5 Cal.4th 228, 237.) Thus, defendant did not waive his claim of Blakely error by failing to object in the trial court. Nonetheless, his contention fails.

Both Blakely and Apprendi recognize that the fact of a prior conviction can be found by a judge, even though any other fact that increases the maximum statutory penalty for a crime must be found by a jury. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) The Apprendi exception for prior convictions has been broadly interpreted by California courts. (People v. Belmares (2003) 106 Cal.App.4th 19, 27-28; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222.)

In this case, the court reviewed the probation officers report, which listed three factors in aggravation, including that defendants convictions were numerous or of increasing seriousness, defendant was on probation at the time of the current offense, and defendants prior performance on probation or parole was unsatisfactory. The record clearly shows that the trial court relied on the fact of defendants numerous prior convictions in making its sentencing decision. His criminal record included five felony convictions and two misdemeanor convictions. Furthermore, the court relied on defendants unsatisfactory performance on probation to justify the upper term. This factor is so closely related to the prior convictions themselves that it comes within the prior conviction exceptions contained in Blakely and Apprendi. Thus, the upper term was supported by factors that did not need to be found by a jury. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.)

We conclude that imposition of the upper term in this case did not violate defendants federal constitutional right to a jury trial under the Sixth Amendment.

Furthermore, we reject defendants claim that the reasons articulated in Cunningham for invalidating the imposition of upper term sentences apply equally to the imposition of consecutive sentences. The Supreme Court did not address consecutive sentences in Cunningham. The controlling authority on that issue is Black, supra, 35 Cal.4th at pp. 1261-1264, in which our state Supreme Court held that a defendant is not entitled to have a jury decide the facts a trial court relies on to impose consecutive sentences.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] All further statutory references are to the Evidence Code unless otherwise indicated.