P. v. Rodriguez

 

 

 

 

 

 

Filed 8/14/13  P. v. Rodriguez CA4/3

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,                           v.   CESAR VELAZQUEZ RODRIGUEZ,         Defendant and Appellant.

G047212            (Super. Ct. No. 07CF1045)            O P I N I O N

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Frank F. Fasel, Judge. 
(Retired judge of the Orange Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed.

                        Susan S. Bauguess, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Marvin E. Mizell,
Deputy Attorneys General, for Plaintiff and Respondent.

*               
*                *

                        A jury convicted Cesar
Velazquez Rodriguez of possessing for sale
methamphetamine (Health & Saf. Code, § 11378) and cocaine (Health &
Saf. Code, § 11351), possessing a firearm and ammunition as a felon
(Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1)),name=F00112019484214> and cultivating marijuana (Health & Saf. Code, §
11358).  After Rodriguez admitted he
suffered a prior strike conviction, the trial court imposed an 11 year and 8
month prison sentence.  We affirmed the
convictions but remanded the matter for resentencing to allow the trial court
to determine whether to impose consecutive or concurrent sentences on the
convictions for possession of methamphetamine for sale (count 1) and felon in
possession of a firearm (count 5), and to state its reasons if it decided to
impose a consecutive term.  The trial
court on remand imposed consecutive terms on these counts.  Rodriguez contends the court abused its
discretion in reaching its decision, but for the reasons expressed below, we
discern no basis to overturn the judgment.

I

Factual and Procedural Background

                        To
understand the factual basis for this appeal, we incorporate the factual
summary from our earlier opinion in People v. Rodriguez (July 29 2009, G039986 [nonpub.
opn.]).  “On March 21, 2007, Santa Ana Police Officer Manuel
Moreno conducted surveillance of defendant’s residence.  Defendant moved frequently in and out of the
garage, and between one vehicle and another in his driveway.  Around 4:00
p.m., Ezekiel Garcia arrived and entered the garage with
defendant.  Moments later Garcia came out
from the garage, grabbed a yellow plastic bag hanging on a nearby post, and
returned to the garage.  Garcia soon
reappeared empty-handed, walked to his truck, and drove away.  Shortly after, defendant also departed.

                        “name="SDU_1">Based on
information received from a confidential informant who purchased drugs from
defendant, Moreno obtained a href="http://www.mcmillanlaw.com/">search warrant for defendant’s
home, and resumed his surveillance the next day.  Again, defendant moved between the two cars
and the garage frequently, and Garcia returned around 4:00 p.m.  Garcia entered the garage while defendant
obtained something from one of the cars in the driveway and concealed it under
his arm before joining Garcia.  A few
minutes later, Garcia left.  Moreno followed him,
stopped him for a traffic violation, and arrested him as he attempted to
conceal nearly 15 grams of cocaine in his truck’s center console.

                        “Moreno and several
other officers then proceeded to defendant’s home to execute the search
warrant.  They found defendant leaning
into the passenger side of a vehicle and ordered him to put his hands up.  Defendant complied, dropping a can of WD-40
lubricant.  A false bottom in the can hid
baggies containing 29 grams of cocaine and 29.2 grams of methamphetamine.  The officers also found $479 and three active
cell phones on defendant, one of which received 15 calls over the next hour.

                        “Searching
defendant’s residence, the officers discovered a bag containing one and
one-half pounds of marijuana in the water heater closet.  They also noticed live marijuana plants
cultivated outside the home.  Inside the
garage, officers found a rifle on [a] high shelf under some clothing; the rifle
was loaded with one round in the firing chamber, and an empty ammunition
magazine sat next to the weapon. 
Detective Steven Lodge testified defendant stated, on seeing an officer
remove the rifle from the garage, “[I]t is nothing, it has been there for a
long time.”  Officers also found 2.3
grams of methamphetamine and 1.7 grams of cocaine in two men’s shirts hanging
under the shelf on which the rifle was discovered.  Other items located in the garage included
loose 12 gauge shotgun shells, numerous empty plastic baggies, and boxes
of nine-millimeter and .22-, .40-, and .45-caliber ammunition.

                        “name="sp_999_2">name="citeas((Cite_as:_2009_WL_2248554,_*2_(Ca">At trial Moreno testified,
based on his training and experience, that the substantial drug quantities
found in the WD-40 can as well as in the water-heater closet were possessed for
sale, while the drugs found in the men’s shirts were most likely possessed for
personal use.” 

                        A
jury convicted Rodriguez of the crimes listed above.  As part of an 11 year and 8 month prison
sentence, the court imposed consecutive 16-month terms for possessing
methamphetamine for sale (count 1) and being a felon in possession of a firearm
(count 5).

                        In
Rodriguez’s 2009 appeal, we remanded for a limited resentencing, explaining:  “[R]emand is required for the trial court to
consider whether to impose consecutive or concurrent sentences on count one for
defendant’s methamphetamine possession and on count five for his possession of
a firearm, and to state its reasons if it imposes consecutive sentences.  The evidence is consistent with these
offenses occurring in the close temporal and spatial proximity that permits
concurrent sentencing [under the Three Strikes law] . . . .”  The disposition portion of our opinion
read:  “The judgment is affirmed with
directions for a limited remand for the trial court to consider whether to
impose consecutive or concurrent sentences on counts one and five and, if it
imposes consecutive sentences, to state its reasons for doing so.”

                        In
People v. Rodriguez (June 13,
2012, G045911 [nonpub. opn.]), we agreed with Rodriguez and the
Attorney General that the trial court committed reversible error on remand by
resentencing Rodriguez in his absence. 
We again remanded for resentencing.

                        The
court conducted the resentencing hearing on July 13, 2012, in the presence of Rodriguez and his
lawyer.  The court again imposed
consecutive terms on the two counts stating “the crimes were predominantly
independent of each other . . . .”

 

II

Discussion

A.     The
Trial Court Did Not Abuse Its Discretion in Imposing a Consecutive Sentence for
Possession of Methamphetamine

                        California
Rules of Court, rule 4.425, lists criteria affecting the decision to impose
consecutive rather than concurrent sentences, including “[f]acts relating to
the crimes, including whether or not: [¶] (1) The crimes and their objectives
were predominantly independent of each other; [¶] (2) The crimes involved
separate acts of violence or threats of violence; or [¶] (3) The crimes were
committed at different times or separate places, rather than being committed so
closely in time and place as to indicate a single period of aberrant
behavior.”  The sentencing court may
consider “[a]ny circumstances in aggravation or mitigation  . . . in deciding whether to impose
consecutive rather than concurrent sentences, except: [¶] (1) A fact used to
impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s
prison sentence; and [¶] (3) A fact that is an element of the crime may not be
used to impose consecutive sentences.” 
(Cal. Rules of Court, rule 4.425(b); see also Cal. Rules of Court, rule
4.406 [sentencing judge is required to state reasons for imposing
consecutive sentences].) 

                        The
trial court has broad discretion to tailor the sentence to a particular case by
imposing consecutive rather than concurrent sentences.  (People
v. Scott (1994) 9 Cal.4th 331, 349.) 
Judicial discretion “‘implies absence of arbitrary determination,
capricious disposition or whimsical thinking.’ 
[Citation.]  [D]iscretion is
abused whenever the court exceeds the name="SR;3024">bounds of name="SR;3026">reason, all
of the circumstances being considered. 
[Citations.]”  (People v.
Giminez (1975) 14 Cal.3d 68, 72.) 
The burden is on the party attacking the sentence to clearly show the
sentencing decision was irrational or arbitrary.  (People v. Superior Court ( Alvarez )
(1997) 14 Cal.4th 968, 977-978.)  In the
absence of such a showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and therefore we will not set aside its
discretionary determination to impose a particular sentence.  (Ibid.)

                        Here,
the trial court gave the following explanation for imposition of consecutive
sentences:  “[Y]ou have an ex-con here
who is convicted by a jury for possessing narcotics for sale and dangerous
drugs for sale, and they found ammunition and a gun in the house . . . .  [¶] It may be one transaction because it was
pursuant to one search of a house by the police . . . but there are separate
crimes.  Cocaine, methamphetamine,
ammunition, and guns.  I don’t see any of
this as being [subject to Penal Code section] 654 or warranting a
concurrent sentence. . . .  [¶]  . . . 
[¶] So he is a drug dealer with methamphetamine.  That is one crime.  He is a drug dealer with cocaine.  That is a second crime.  He is a drug dealer with a firearm.  That is a third one.  He is a drug dealer with ammunition.  Although the court ran that count concurrent,
the court has no intention of running count 5 the 12021(a)(1) concurrent
because it’s a separate crime.  [¶] For
those reasons the court finds as it did on February 1, 2008 when it entered the
nunc pro tunc order that the crimes were predominantly independent of each
other because I don’t think it’s disingenuous to say some drug dealers use and
keep weapons and some don’t.  So for that
reason the court finds they are independent.”~(rt5)~  Defense counsel
argued the drugs were “in the same container. 
Some drug dealers will deal in one and some drug dealers will deal in
both.  I still think that it’s under the
same situation, same facts.  I don’t see
how you can separate those two.”  The
court responded “I don’t see how you can put them together.  I mean, he has customers that will take one
or the other or both.”

                        Rodriguez
contends the trial court abused its discretion because the crimes of possession
of methamphetamine for sale and possession of a firearm were committed on the
same occasion and arose from the same set of operative facts as the crime of
possession of cocaine.  These are
relevant factors, but the key issue is whether the court abused its discretion
in determining the “crimes and their objectives were predominantly independent
of each other.”  (Cal. Rules of Court,
rule 4.425(a).)

                        Analysis
in our prior opinion addressing Rodriguez’s argument concerning Penal Code
section 654 informs the issue here: 
“Defendant asserts his ‘crimes and their objectives were not independent
of each other,’ but rather ‘were committed at the same time and place . . .
motivated by a single objective.’  The
trial court, however, could reasonably conclude otherwise.  Defendant’s reliance on In re Adams (1975)
14 Cal.3d 629 (Adams) is misplaced. 
The Supreme Court held the defendant there could be punished only once
for transporting five different controlled substances because
he transported the substances on a single occasion pursuant to a lone objective
of making delivery to one individual in a single transaction.  (Id. at p. 635; see People v.
Monarrez (1998) 66 Cal.App.4th 710, 714 (Monarrez )
[‘It was reasonable for the court in Adams to find a single
illegal intent where the defendant’s sole act was to move a large quantity of
drugs from one place to another’].)

                        “name="SDU_9">name="citeas((Cite_as:_2009_WL_2248554,_*9_(Ca">Adams furnishes no
support to defendant because Adams declined to overrule cases
holding multiple punishments may be imposed for possession of multiple substances. 
(Adams, supra, 14 Cal.3d at p. 635; see, e.g., People
v. Barger (1974) 40 Cal.App.3d 662, 672.)  Possession is distinct from transportation
because while one may transport multiple substances in a single act, the intent
to possess one substance is distinct from the intent to possess another, since
the substances themselves are distinct. 
As the Monarrez court explained, ‘[N]arcotics are
separately classified and regulated by the Legislature; they have different
effects and pose different hazards to society.’ 
(Monarrez, supra, 66 Cal.App.4th at p. 715.)  It follows that defendant’s choice to obtain
and possess not just cocaine, but also an additional and distinct controlled substance
–methamphetamine – means his possession of each substance is properly subject
to separate punishment.  (Ibid.)  This is especially true where the defendant
possesses, as here, each of the drugs in a saleable quantity, which supports
the inference of an ‘intent to sell to a presumptively large number of
buyers.’  (Id. at p.
714.)  Contemplation of multiple
transactions thus further distinguishes Adams.”  (People v. Rodriguez (July 29, 2009,
G039986 [nonpub. opn. at pp. 16-17.])

                        name="sp_999_10">Rodriguez argues the possession of
both drugs in three baggies in the same “can [give] rise to an inference the
drugs were possessed for sale to one individual because of the manner of
packaging and storage.”  Perhaps, but the
trial court was not required to adopt this view, and even if it had, the court
could still impose consecutive sentences. 
As noted, the trial court may separately and consecutively punish >possession of different drugs possessed at the same time and place without
running afoul of Adams.  For example, in People v. Barger, supra, 40 Cal.App.3d at p. 672, the appellate
court noted California courts have uniformly upheld multiple punishment for
simultaneous possession of various narcotic drugs, including the sale and
possession of the same drug if the sale consumes only part of a defendant’s
entire inventory of drugs.  The appellate
court noted, “Since the offenses with
which appellant was charged were separately punishable, the trial court had
discretion to determine that sentences were to run consecutively.  (Pen. Code, § 669)” (italics added).) 

                        The
trial court could have reasonably imposed consecutive punishment for possession
of methamphetamine and cocaine even if
Rodriguez intended to sell all the drugs in the WD-40 can to one
purchaser.  The trial court, however,
could conclude it was more likely the can contained Rodriguez’s inventory,
which allowed him to fulfill multiple orders depending on his purchaser’s
needs.  As the trial court noted, some
users like cocaine, others methamphetamine. 
Moreover, Garcia, who appeared to be working with Rodriguez, transported
15 grams of cocaine, about half the amount of cocaine Rodriguez possessed in
the can, which suggested the cocaine in the can was not intended for one
purchaser.  Rodriguez also concedes the
police found Ziploc baggies on the shelf in the garage, which supports the
trial court’s implicit conclusion that Rodriguez was packaging the drugs in
smaller quantities for sale.  This is
true even if no scales or pay/owe sheets were discovered.  In any event, the trial court need only find
the crimes and their objectives are “predominantly independent,” not completely
independent.  The trial court did not
abuse its discretion in imposing consecutive sentences for possessing for sale
both cocaine and methamphetamine. 

 

B.     The
Trial Court Did Not Abuse Its Discretion in Imposing a Consecutive Sentence for
Possession of a Firearm

                        The
parties disagree whether the trial court had authority to impose a concurrent
term for possession of a firearm by a felon under the Three Strikes law.  But assuming Rodriguez’s firearm possession
conviction was committed on the same occasion and arose from the same set of
operative facts as the drug offenses (see People
v. Deloza (1998) 18 Cal.4th 585, 595-596 [“‘same occasion’” under Three
Strikes law means the acts underlying the convictions occurred close in time
and space to each other]; People v. Hendrix (1997) 16 Cal.4th 508),
the trial court did not abuse its discretion in imposing a consecutive
term. 

                        As
we noted in our prior opinion, “The trial court could also reasonably conclude
defendant’s possession of a firearm and ammunition . . . betrayed [an
objective] distinct from his possession of cocaine or methamphetamine or his
other crimes.  Specifically, the trial
court could infer from defendant’s admission the loaded rifle had been in his
garage ‘a long time’ that his possession of the weapon and its ammunition
predated his acquisition of the controlled substances.  This is particularly true since defendant
possessed the drugs for sale, which reasonably implied a short shelf life and
rapid turnover of the drugs prompted by the danger and liability in possessing
them and by the anticipation of profits to be garnered from selling them.  There was no evidence defendant intended to
dispose of the weapon or ammunition immediately upon the sale of any drugs in
his possession.  To the contrary, that
the weapon was so well-hidden suggested an intent to keep it.  The trial court could thus reasonably infer
defendant’s possession of the weapon and ammunition was not limited strictly to
the period he possessed drugs, but predated it and was intended to postdate it,
and was therefore a distinct and separately punishable crime from his drug
offenses.  (See People v.
Ratcliff (1990) 223 Cal.App.3d 1401, 1413-1414 (Ratcliff )
[firearm possession that continues before or after other offenses warrants
separate punishment].)  [¶]  Additionally, because defendant’s
prohibited-person firearm and ammunition offenses were complete the moment he possessed
those items, even if he thereafter retained them solely to safeguard drugs that
came into his possession, ‘[w]hat the ex-felon does with the weapon later is
another separate and distinct transaction undertaken with an additional intent
which necessarily is something more than the mere intent to possess the
proscribed weapon.’  (Ratcliff, supra, 223
Cal.App.3d at p. 1414.)  The trial court
therefore could reasonably conclude defendant warranted separate sentences
because the evidence showed he intended to possess drugs, which was ‘more than
the mere intent to possess the proscribed weapon.’ (Ibid.)”  (People v. Rodriguez, supra, G039986.
at pp. 17-18.])

                        The
trial court concluded possession of cocaine for sale and possession of a
firearm by a felon “were predominantly independent of each other because I
don’t think it’s disingenuous to say some drug dealers use and keep weapons and
some don’t . . . .”  Rodriguez’s intent
in possessing drugs was to make money. 
His intent or objective in possessing the gun could have been to
facilitate his drug business, for general self-defense, or for recreational
purposes.  The court did not abuse its
discretion in imposing a consecutive term for felon in possession of a firearm.  (See also People v. Vang (2010)
184 Cal.App.4th 912 [probation search of the defendant felon’s residence
uncovered methamphetamine in one closet, a loaded revolver in the defendant’s
bed, and ammunition for the revolver in another closet; court held possession
of both a firearm and methamphetamine could be separately punished; among other
things, court reasonably could conclude the defendant possessed the firearm to
both conduct his drug business and to protect his home in a high crime area].)



III

Disposition

                        The
judgment is affirmed.

 

 

                                                                                   

                                                                                    ARONSON,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM,
ACTING P. J.

 

 

 

FYBEL, J.