P. v. Makboul

Filed 9/29/06 P. v. Makboul CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James B. Jennings, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia Garcia, Supervising Deputy Attorney General, and Arlene A. Sevidal, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Makboul Ahmad Makboul was staying with his girlfriend, Leslie Schehl. When the relationship went bad, he refused to leave; he began harassing and following Schehl, forcing her to leave home and stay with friends or at motels. Finally, Schehl got a restraining order and attempted to reclaim her house, only to suffer through a hellish night during which defendant kept breaking into her house, or trying to. Three times, she called 911, but defendant managed to evade the police officers who responded; the fourth time, they found and arrested him. He was holding two baggies containing methamphetamine.

A jury found defendant guilty of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)), stalking (Pen. Code, § 646.9, subd. (a)), misdemeanor nonviolent false imprisonment (Pen. Code, § 236), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant admitted one 1-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and one “strike” prior. (Pen. Code, § 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to a total of 14 years 4 months in prison.

Defendant now contends:

1. The trial court erred by requiring defendant to proceed to trial, even though his attorney was unprepared.

2. Defendant could not be convicted of burglary because the house he burglarized was his own residence.

3. The trial court erred by allowing a police officer to testify that the quantity of methamphetamine found was usable.

4. There was insufficient evidence that the quantity of methamphetamine found was usable.

5. There was insufficient evidence to support the imposition of the upper term for burglary.

6. In imposing the upper term for burglary, the trial court erred under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].

7. The trial court’s failure to stay the term imposed for stalking violated Penal Code section 654.

We agree that the term for stalking should have been stayed. We will modify the judgment accordingly. We find no other error. Hence, we will affirm the judgment as modified.

I

FACTUAL BACKGROUND

In February 2004, defendant and victim Leslie Schehl began dating. At that time, defendant was living in a mobile home with one Jean Walsh. In July 2004, because defendant was no longer happy living there, he and Schehl agreed that he could stay at her house in Banning “for a very short period of time, for a week,” until he could find another place to live.

Defendant brought over some clothes; he stored some other items in boxes in the garage. He and Schehl shared the same bedroom. She gave him a key to the bottom lock on the front door (but not to the dead bolt). Defendant broke the crank on one of the windows in the master bedroom, so that, unless it was locked, it could be opened from the outside; one time, when he did not have a key, he came in through it.

After about a month, defendant and Schehl began to have “issues.” She asked him at least five times to leave, but he did not, and she was reluctant to confront him.

A. September 7, 2004.

On Tuesday, September 7, 2004, Schehl’s car had a flat tire. She took it to a Goodyear dealer. Defendant went with her, even though she did not want him to and had told him to get out of the car.

Once the car was fixed, defendant asked the manager to release the car to him. Schehl objected, because she needed it to go to work. When she left, because she was afraid of defendant, she had a mechanic go with her; they pretended they were taking a test drive. Actually, she dropped the mechanic off nearby, then drove to her workplace.

While she was at work, defendant tried to phone her about five times, but she refused to take his calls. He also showed up there, but she would not talk to him. When she got off work, she went to the courthouse and filled out an application for a restraining order against defendant. The clerk, however, said it could not be filed because the computers were down.

Rather than go home, Schehl spent the night at a friend’s house. She arranged for her daughter to stay with a neighbor. Defendant called her cell phone several times, but she did not answer.

B. September 8, 2004.

On Wednesday, September 8, 2004, Schehl went to work. Defendant kept trying to phone her, both at work and on her cell phone; over a 24-hour period, he left 49 messages on her cell phone. In several messages, he said she should come home because her house had been burglarized. She thought he was trying to trick her into returning home. However, she went to the police department and told Officer Steven Wortman about the messages.

Officer Wortman accompanied Schehl to her house. They found it “a mess”; furniture had been overturned. Two 35-millimeter cameras, a video camera, a computer scanner and a gold and diamond bracelet were missing. The window in the master bedroom was open.

Schehl decided to go to a Days Inn motel a mile or two away. As she approached the Days Inn, however, she saw that defendant was following her. She was “very frightened.” She headed toward the police station, but when she saw a police car going into the parking lot of an IHOP restaurant, she followed it in. She contacted the officer and told him she was being followed. She then went into the IHOP to eat. Meanwhile, other police officers, including Officer Wortman and Officer Mark Smith, arrived at the IHOP.

Schehl looked out and saw defendant; he crossed the street, then went toward the parking lot behind the IHOP (where her car was). A few minutes later, he came in. He sat at her booth, but she told him to leave her alone. He left, but she could see him still standing out in front. After about 10 minutes, he tried to come in again, but the police intercepted him. Officer Wortman told him that Schehl was afraid of him and wanted nothing to do with him.

Schehl phoned a neighbor named Stacey, who met her at the IHOP, then followed her to the Days Inn. On the way, the rear end of Schehl’s car was “fishtailing.” When she got to the motel, she found that the air had been let out of both of her rear tires. She checked into the motel under Stacey’s name. That night, defendant called her cell phone multiple times.

C. September 9, 2004.

On Thursday, September 9, 2004, around 12:30 a.m., Officer Smith spotted defendant in the parking lot of a Starbucks next to the Days Inn. Defendant ran and hid, but Officer Smith found him. Defendant said he was going to buy cigarettes. Officer Smith told him to go home; defendant said he was going to.

Around 6:00 a.m., Officer Wortman drove past the Days Inn. He noticed defendant across the street, staring at the motel. Shortly afterward, Schehl looked out her motel room window and saw defendant climbing over the fence between the Days Inn and an adjacent Starbucks. She called the front desk and asked the clerk to call the police.

Schehl checked out of the motel. After reinflating her tires and typing up a supplement to her restraining order application, she went to the courthouse and filed the application. She then checked into a Travelodge in Hemet.

That night, defendant left some five to 10 messages on Schehl’s cell phone. In one, he said he was going to call animal control because Schehl’s dogs were not being fed. In another, he said, “If you come back home, [I] can get your shit back.” In yet another, he said he was going to kill himself. Some of the calls were placed from Schehl’s home phone. Schehl phoned defendant (or answered one of his calls) so she could tell him about the court date for the restraining order. They talked for about five minutes. Defendant was “pleading” and “manipulative.” He upset Schehl so much that she hung up on him.

D. September 10, 2004.

On Friday, September 10, 2004, Schehl did not go to work because she thought “[defendant] would just show up and make everything miserable for everybody.” She did not see or hear from him at all that day. She spent that night at the Travelodge.

E. September 11, 2004.

On Saturday, September 11, 2004, Schehl went to a salon where she had a standing appointment to get her nails done. At her request, a salon employee locked the door. Shortly after she arrived, Schehl saw defendant peering in the window. He crossed the street and stayed there for 15 or 20 minutes, watching the salon. He continued to peer into the salon, off and on, for a couple of hours. At one point, he called Schehl’s cell phone and left a message asking her to buy him lunch. When Schehl was ready to leave, she called the police. An officer responded, but defendant was gone. She told the officer “she really was not afraid of [defendant] other than his violent past,” though she was intimidated by him. According to the officer, she did appear to be afraid.

At 6:00 or 6:30 p.m., Schehl went home. Although she was still scared, she could not afford to stay at a motel for yet another night. Around 7:00 p.m., defendant showed up. Schehl told him to leave. He said, “Let me go in the garage for a little bit, and then I’ll leave.” He went in the garage; she went back in the house. Five or 10 minutes later, Schehl went out to the garage and told defendant once again to leave. He said, “I will in a few minutes.” She went back in the house and locked the door.

F. September 12, 2004.

On Sunday, September 12, 2004, when Schehl woke up, she checked the garage, where she found defendant sitting on a couch. She went back in the house. She did not call the police because she thought that, absent a restraining order, there was nothing they could do.

Around 10:00 a.m., defendant left. Schehl seized that moment to change the locks on the front door. However, she did not lock the new lock, because she was “in and out,” cleaning. Suddenly, defendant walked in. He “tossed” her missing bracelet to her, saying, “Here’s your bracelet back.” He claimed he was leaving. He did his laundry, gathered up his clothing, and packed it in trash bags. He was there “[m]ost of the afternoon.” At some point, Schehl told defendant, “I’m done,” meaning she was done with the relationship. Defendant replied, “No, you’re not.” After an argument, defendant claimed he was going to leave her alone, but he still did not leave the house.

Around 6:00 p.m., Schehl’s boss, Meri Jane Malouin, and Malouin’s husband came over to check on her. Both Schehl and Malouin told defendant to leave, but he would not. Because Malouin did not feel that Schehl was safe, she told her to go to a motel, and she would pay for it. Accordingly, Schehl went back to the Travelodge.

G. September 13-14, 2004.

On Monday, September 13, 2004, the court granted Schehl’s application for a restraining order. Defendant was at the courthouse, but he remained outside the courtroom during the hearing. Afterward, while Schehl was waiting to get her paperwork, defendant came up and sat down next to her. The clerk told him “he needed to get away from [Schehl] because there was a restraining order.”

As Schehl stopped for a stop sign at the exit from the parking lot, defendant tried to get into her car, but she drove away. She left copies of the restraining order with police agencies in Banning, Cabazon, and San Jacinto, then went to work. Defendant called her work and asked for her, but she did not speak to him.

When Schehl got home, she made sure all the doors and windows were locked. Around 6:00 p.m., she heard a noise from the back of the house. She went to investigate. When she was in her daughter’s bedroom, she turned around to find defendant standing in the doorway. She tried to go past him, but he put his hands on her shoulders and held her against the doorframe for perhaps 30 seconds. Finally, she managed to “wiggle” free. She went to a cordless phone and tried to call 911. Defendant, however, grabbed the phone base and yanked on it, disconnecting it. She then tried to get to her cell phone, but defendant got to it first. She tried to run out the front door, but defendant blocked her way. Finally, she went into the kitchen, where there was a second cordless phone, and called 911. Defendant left out the back door, taking her cell phone with him.

While Schehl was on the line with the 911 dispatcher, she went outside so she could tell the police where defendant was. She found him in the back yard. He was putting on his shoes. (Schehl had hardwood floors that creaked.) Defendant started toward her, but when she retreated, he turned around and jumped over her back fence.

Officer Wortman and a second officer arrived. They searched for defendant but could not find him. However, Officer Wortman did find that a window in the guest bathroom had been broken.

While Officer Wortman was at the house, the phone rang, and he answered it. It was defendant. Officer Wortman told him to come to the police station so they could “speak about this in further detail.” Defendant replied, “So you can arrest me for stalking, no way.”

Officer Wortman began patrolling the neighborhood on foot, while five other officers conducted a “close vehicle patrol.” Meanwhile, Schehl contacted her daughter and borrowed her cell phone.

Around 10:30 p.m., Schehl was awakened by her dogs barking. She looked outside and saw defendant walking down the street. She called 911. Officer Wortman and other officers responded, but they were again unable to find defendant.

Around midnight, Schehl awoke again to find defendant in the room, looking at her. She picked up her daughter’s cell phone and started to call 911, but defendant “wrestled” the phone out of her hands, then left with it. She called 911 from a different phone. Officer Wortman and other officers arrived, but yet again, they were unable to find defendant.

Around 1:00 a.m., Schehl heard a door at the back of the house close. She called 911. Officer Wortman and other officers arrived; this time, Officer Wortman found defendant in the garage, hiding behind the couch. Defendant was holding Schehl’s daughter’s cell phone. Schehl’s own cell phone was found nearby. Defendant was holding two baggies, each containing a white crystalline substance. Each baggie, including its contents, weighed about one gram. A criminalist who examined one of the baggies found that the substance in it weighed 0.03 grams and contained methamphetamine.

Defendant was arrested. Even after that, he kept trying to call Schehl. After she blocked his phone number, other people called her with messages from him. Finally, she changed her phone numbers.

Between October 25 and December 9, 2004, defendant sent Schehl seven letters (addressed to “Leslie Makboul”), plus a Christmas card. In them, he said, among other things: “[L]et’s face it, you are mine forever.” “No man on earth can stop me from doing what I want to do, or go[ing] where I want. So I am hoping you didn’t go out with anyone because you think he or they will stop me.” “I am also told by the D.A. that you changed your phone #’s. If I want I can get them. But I will leave that to you.” “[S]ooner or later they have to let me out, then what?”

Defendant also wrote: “I promise you this will be my last letter if you don’t want to write or hear from me. Just come see me . . . and say that to my face and I promise you that will be it.

If you don’t that [sic] you mean you want me to keep writing you. Again, here I am controlled by you.”

H. Defense Evidence.

Jean Walsh, defendant’s previous live-in girlfriend, testified that on September 11, 2004, Schehl drove up to her home, stopped for about 20 seconds, then left.

II

DENIAL OF A CONTINUANCE

Defendant contends the trial court erred by requiring him to proceed to trial, even though his attorney was unprepared.

A. Additional Factual and Procedural Background.

1. December 14, 2004.

After the prosecution’s opening statement, defense counsel moved for a mistrial. He explained that the prosecutor had referred extensively to “things . . . I had never heard before.” He listed 15 specific items of information that, he claimed, had not been disclosed to him.

The prosecutor indicated that he had learned at least some of this information from conversations with the victim or the investigating officer, some as recently as the previous night. He argued that “50 percent of the items” were not material and that he had provided all material new information to defense counsel, either orally, in email, or in “document[s] or reports . . . .” He also argued that defendant’s only remedy was a continuance.

Defense counsel argued that the prosecution had violated its discovery obligations. He also argued that requiring him to request a continuance would violate defendant’s speedy trial rights. However, when the trial court said, “Are you asking for a continuance?,” defense counsel said:

“[DEFENSE COUNSEL]: Mr. Makboul wishes to avail himself of any remedy.

“THE COURT: I don’t make motions.

“[DEFENSE COUNSEL]: Would avail himself of any remedy the Court sees fit. I’m making a motion for mistrial.

“THE COURT: Motion for mistrial is denied.

“[DEFENSE COUNSEL]: If the Court wants to grant me a continuance, I will take that.

“THE COURT: I’m not going to grant a motion for continuance.

“[DEFENSE COUNSEL]: I am moving for a motion for continuance.

“THE COURT: To what day?

“[DEFENSE COUNSEL]: I need at least a day.

. . .

“THE COURT: All right. Motion is denied. If it’s just a day, there’s no reason for a continuance.”

The prosecutor, however, suggested that defendant should be given a one-day continuance. Defense counsel said:

“[DEFENSE COUNSEL]: Your Honor, if we could come back tomorrow morning, I can have today to sit on this. . . .

. . .

“THE COURT: Let me get this straight. You’re asking the matter just go over, not a continuance of the trial?

“[DEFENSE COUNSEL]: I --

“THE COURT: You’re just asking for a recess until tomorrow morning?

“[DEFENSE COUNSEL]: Let’s do that.”

The trial court agreed to recess until the following morning. Defense counsel cautioned:

“[DEFENSE COUNSEL]: I can’t promise, your Honor, I’ll come back in the morning and say I’m fine.

“THE COURT: If you need another day, ask me for another day.”

At 11:00 a.m., the court dismissed the jurors for the day, and at 11:05 a.m., it adjourned.

2. December 15, 2004.

The next morning, defense counsel renewed his motion for mistrial. He also added the federal constitutional rights to counsel and to due process as grounds for the motion. At first, he claimed that he was unprepared for trial. However, after the trial court asked, “[A]re you telling me that it didn’t make any difference that we had a recess . . . ?,” he said: “I’ll be honest with the Court. Whether I have a day or [a] week or a month, it’s not going to change these facts . . . -- I’m not asking for a continuance. I’m asking for . . . a mistrial or some kind of sanction which would be to exclude some of this evidence.”

The trial court responded, “ . . . I can’t go to evidentiary sanctions before I entertain [a] motion to continue . . . .” Defense counsel therefore moved for a continuance. The trial court denied the motion.

During an instructions conference, defense counsel requested CALJIC No. 2.28 (Failure To Timely Produce Evidence). The trial court refused to give it.

B. Analysis.

To set the stage, we note that defendant does not claim that the prosecution violated its discovery obligations, nor does he claim that the trial court erred by denying a mistrial or by refusing to give CALJIC No. 2.28. He argues solely that, because his counsel was unprepared, the denial of a continuance was an abuse of discretion and a violation of his federal constitutional rights to counsel and to due process.

“‘The granting or denial of a motion for continuance rests within the sound discretion of the trial court.’ [Citation.]” (People v. Michaels (2002) 28 Cal.4th 486, 525, quoting People v. Mickey (1991) 54 Cal.3d 612, 660.) However, “[s]uch discretion ‘may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.] ‘To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 670, quoting People v. Sakarias (2000) 22 Cal.4th 596, 646 and People v. Bishop (1996) 44 Cal.App.4th 220, 231.) “In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.] One factor to consider is whether a continuance would be useful. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 1013.)

The problem with defendant’s contention is that his trial counsel was not unprepared. It is true that, on December 14, he claimed that he was “not ready now that the facts changed.” Moreover, on December 15, he initially claimed that he still was “not prepared” to deal with the new information. Ultimately, however, he admitted: “I’ll be honest with the Court. Whether I have a day or [a] week or a month, it’s not going to change these facts . . . -- I’m not asking for a continuance.” Thus, he conceded that he was not unprepared and that he did not need a continuance.

Admittedly, defense counsel did go on to make a motion for a continuance, but only because the trial court told him he had to if he was going to seek evidentiary sanctions. Because he had just conceded that a continuance would not be of any use to him, the trial court did not err by denying the motion.

III

THE SUFFICIENCY OF THE EVIDENCE,

FOR PURPOSES OF THE BURGLARY CONVICTION,

THAT THE HOUSE DEFENDANT BROKE INTO WAS NOT HIS OWN

Defendant contends there was insufficient evidence to support the burglary conviction, because Schehl’s house was also his own residence.

In People v. Gauze (1975) 15 Cal.3d 709, the Supreme Court held that a person cannot be guilty of burglarizing his or her own home. (Id. at pp. 711-717.) It explained that “burglary law is designed to protect a possessory right in property . . . .” (Id. at p. 713; see also id. at p. 714.) It distinguished the earlier case of People v. Sears (1965) 62 Cal.2d 737, as follows: “In Sears, . . . [f]or three years prior to the murder, defendant had slept in a garage nearby the cottage occupied by his wife. Then the spouses separated and defendant moved to a hotel. Three weeks later, he returned to the cottage . . . . In an ensuing struggle, he killed his wife’s daughter. . . .

[O]ur opinion that Sears could be convicted of burglary was based on two separate considerations. First, Sears had no right to enter his wife’s house . . . . Second, even if he had a right to enter, the right was based on former section 157 of the Civil Code (now § 5102), which gave a person the right to enter the separate property of his or her spouse, subject to certain conditions. Thus Sears’ ‘right’ to enter his wife’s house . . . was at best conditional.” (Gauze, at pp. 714-715.)

As the Supreme Court later summarized its holding in Gauze: “‘[O]ne may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter.’ [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 954, italics added, quoting People v. Pendleton (1979) 25 Cal.3d 371, 382; accord, People v. Clayton (1998) 65 Cal.App.4th 418, 422-423; People v. Salemme (1992) 2 Cal.App.4th 775, 781; In re Andrew I. (1991) 230 Cal.App.3d 572, 578; People v. Davenport (1990) 219 Cal.App.3d 885, 891-892; In re Richard M. (1988) 205 Cal.App.3d 7, 16.)

“‘In reviewing a challenge to the sufficiency of the evidence . . . , we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Ramirez (Aug. 7, 2006, S012944) ___ Cal.4th, ___ [2006 WL 2241355 at p. 44], quoting People v. Cole (2004) 33 Cal.4th 1158, 1212 and People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Accordingly, the precise issue before us is whether there was substantial evidence that defendant did not have an unconditional possessory right to enter Schehl’s house. The burglary allegedly occurred on or about September 14, 2004. In closing argument, the prosecutor relied on the three separate entries on September 13-14, arguing that defendant made them with the intent to stalk and/or to steal.

Defendant was not a tenant or lessee in Schehl’s home; he was a licensee. “The test for determining whether an agreement for the use of real property is a license or a lease is whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license. [Citation.]” (Cal-Am Corp. v. Department of Real Estate (1980) 104 Cal.App.3d 453, 457.) “A license to use premises may be revoked at the pleasure of the licensor. [Citations.]

Revocation may be made by implication from the acts and conduct of the licensor. [Citations.]” (Miller v. Desilu Productions, Inc. (1962) 204 Cal.App.2d 160, 165.)

In July, Schehl agreed to let defendant stay with her temporarily -- for about a week. By September 7, he had considerably overstayed his welcome; Schehl had already told him at least five times to leave. After September 7, Schehl stopped coming home and began staying with friends or in motels instead; this was inconsistent with any willingness to let him to remain in the house. On September 11, Schehl was forced to return home; when defendant showed up, she told him again to leave. On September 12, she changed the front door lock. Finally, on September 13, she obtained a restraining order against him; a clerk told him that he was subject to a restraining order. Defendant argues that there was no evidence that the restraining order was ever served on him, but this is beside the point. The jury could find that, by each and all of these acts -- culminating in the act of obtaining the restraining order -- Schehl revoked defendant’s license to stay in her home. Accordingly, by September 13, at the latest, defendant did not have an unconditional possessory right to enter Schehl’s house.

Defendant claims that Schehl’s house was his residence. True, he had moved out of Walsh’s mobile home, and he had brought some of his belongings over to Schehl’s house. However, “California courts are in agreement the term ‘residence’ ‘”connotes any factual place of abode of some permanency, more than a mere temporary sojourn[.]”’ [Citations.]” (Kibbee v. Blue Ridge Ins. Co. (1999) 69 Cal.App.4th 53, 61, quoting Utley v. Allstate Ins. Co. (1993) 19 Cal.App.4th 815, 820, quoting Smith v. Smith (1955) 45 Cal.2d 235, 239.) In light of the original agreement that defendant could stay only temporarily, the jury could reasonably find that Schehl’s house was never defendant’s residence. Alternatively, once she revoked his license, her house ceased to be his residence; he was simply homeless. In any event, under Gauze, what matters is not whether the house was defendant’s residence, but whether he had an unconditional possessory right to enter it. He did not.

We therefore conclude that there was sufficient evidence that the house defendant burglarized was not his own.

IV

THE EVIDENCE THAT THE QUANTITY

OF METHAMPHETAMINE WAS USABLE

Defendant contends there was insufficient evidence that the quantity of methamphetamine found was usable. In a subsidiary contention, he argues that the trial court erred by allowing Officer Wortman to testify that the quantity was usable.

A. Additional Factual and Procedural Background.

Officer Wortman testified as follows:

“Q. [D]id you actually weigh the contents of this particular item?

“A. Yes.

“Q. How much did it weigh?

“A. [E]ach bagg[ie] and the substance inside weighed one gram.

“Q. Okay. Now, during the course of your experience as a police officer, have you had opportunity to investigate cases where people actually possessed narcotics for purposes of ingestion?

“A. Yes.

“Q. How many would you say you’ve been involved in investigating during the course of your ten years as a peace officer?

“A. For use of ingestion, probably around a thousand.

“Q. During the course of those thousand investigations, have you tested or have you determined the contents of particular items to be methamphetamine?

“A. Yes.

“Q. And based on your training and experience, which [sic] is a usable quantity of methamphetamine?

“[DEFENSE COUNSEL]: Your Honor, I’m going to object. Improper foundation.

“THE COURT: Overruled.

“Q. [W]hat is the measurement or the weight of a particular amount of methamphetamine to be a usable quantity?

“[DEFENSE COUNSEL]: Your Honor, I’m going to object. Calls for legal conclusion.

“THE COURT: Overruled.

“Did you have an opinion that that was a usable amount?

“THE WITNESS: Yes, your Honor, I did.

. . .

“Q. What is a usable quantity? What are you taught as [sic] a usable quantity?

“A. Any portion of substance that’s likely to cause a reaction in the body once ingested.”

B. The Admissibility of Officer Wortman’s Opinion.

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) “The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. [Citations.] . . . Absent a manifest abuse, the court’s determination will not be disturbed on appeal. [Citations.]” (People v. Ramos (1997) 15 Cal.4th 1133, 1175.)

Here Officer Wortman testified that he had investigated about a thousand cases in which people “actually possessed narcotics for purposes of ingestion[.]” Some of these cases -- inferably, many of them -- involved methamphetamine. This was sufficient to qualify him as an expert on how much methamphetamine a user typically possesses for use.

Defendant argues that Officer Wortman’s definition of a “usable quantity” differed from the legal definition. Officer Wortman defined it as “[a]ny portion of substance that’s likely to cause a reaction in the body once ingested.” First, defendant argues that this was incorrect, or at least vague, because almost any substance will cause some “reaction” (such as digestion or excretion). Officer Wortman, however, clearly meant a reaction to it as a drug. This was, if anything, more stringent than the legal definition, which does not require proof that the quantity would have a “drug effect.” (People v. Rubacalba (1993) 6 Cal.4th 62, 65-66.) However, any amount that would have a drug effect would be a usable quantity.

Next, defendant argues that Officer Wortman impermissibly testified to “a legal conclusion . . . within the purview of the trier of fact . . . .” “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) However, expert testimony still must be “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a).)

“‘[A]n opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.’ [Citations.]” (People v. Wilson (1944) 25 Cal.2d 341, 348, quoting Hamilton v. United States (5th Cir. 1934) 73 F.2d 357, 358-359.)

“Expert opinions which invade the province of the jury are not excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful). ‘[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. “Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.” [Citation.]’ [Citations.] In other words, when an expert’s opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them.” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183, quoting People v. Torres (1995) 33 Cal.App.4th 37, 47, quoting Lampkins v. U.S. (D.C.App. 1979) 401 A.2d 966, 969.)

Here, the jury was unlikely (we hope) to know from personal experience what the minimum usable quantity of methamphetamine might be. Thus, Officer Wortman’s testimony, although in the form of a legal conclusion, was reasonably calculated to assist the trier of fact. He did not usurp the jury’s role by opining that defendant was guilty (see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77); he simply opined that one element of the offense had been satisfied. This was perfectly permissible.

C. The Sufficiency of the Evidence.

“Possession within the meaning of the relevant Health and Safety Code sections includes as an element that the substance be in a usable amount. [Citations.]” (People v. Carrasco (1981) 118 Cal.App.3d 936, 948.) “‘[T]he . . . usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.’ [Citation.]” (People v. Morales (2001) 25 Cal.4th 34, 48, fn. omitted, quoting People v. Rubacalba, supra, 6 Cal.4th at p. 66.)

Officer Wortman’s opinion was sufficient evidence to support a finding that the quantity of methamphetamine was usable. Defendant argues that Officer Wortman was referring to the two-gram gross weight of the baggies, rather than to the net weight of the methamphetamine. Not so. Admittedly, he had just testified that each baggie weighed about one gram. After that, however, he was asked, “[H]ave you determined the contents of particular items to be methamphetamine?” He was then asked, “[What] is a usable quantity of methamphetamine?” Finally, the trial court interjected, “Did you have an opinion that that was a usable amount?” (Italics added.) Defendant would have us believe that “that” referred all the way back to the baggies and their weight. Obviously, however, both the question and the answer referred to the methamphetamine contents of the baggies, not the baggies themselves. While Officer Wortman had not weighed the methamphetamine apart from the baggies, he could reasonably tell by “eyeballing” it that it was a usable quantity.

Defendant also argues that the contents of the second baggie were never tested. However, as (1) the two baggies were essentially identical, (2) they both contained a white crystalline substance, (3) defendant was holding both of them in his hand, and (4) one of them contained methamphetamine, it was a reasonable, indeed, a compelling inference that they both did.

We therefore conclude that there was sufficient evidence that the methamphetamine found was a usable quantity.

V

THE SUFFICIENCY OF THE EVIDENCE

TO SUPPORT THE UPPER TERM FOR BURGLARY

Defendant contends there was insufficient evidence to support the imposition of the upper term for burglary.

A. Additional Factual and Procedural Background.

At the sentencing hearing, the trial court indicated that the outrageous nature of defendant’s stalking conduct warranted the imposition of the upper term for burglary. It explained: “[L]eaving and coming back in, terrorizing that lady . . . -- how she lived through it, I don’t know. A heart attack you can get even if you’re young, waking up and having him there all the time in and out and in and out.

“[I]t’s not a classic burglary. This is a stalking burglary. This is all about this twisted, demented idea . . . that she has an interest in him and he has ownership of her . . . . I have had worse stalkings where other people end up dead, but the stick-to-it-ness of this man, the determination of him, the compulsion . . . .”

When defense counsel specifically asked the trial court to state reasons for imposing the upper term, it replied: “Outrageous stalking. This man used [sic] going in and out of her house that night. He actually committed several burglaries, that I can think of.” It concluded: “[D]efendant’s conduct . . . was almost unequaled in the Court’s experience.”

The trial court also indicated that it wanted to impose the upper term for burglary, rather than for stalking, because it would be longer; however, it was not sure it could do so based on the stalking conduct. The prosecutor argued that it could because: “[T]he . . . stalking is the basis of the burglary, the felony . . . that was committed inside the house. That same aggravation that the Court is analyzing in the stalking should be considered in the burglary.”

The trial court then noted that it could not use the outrageousness of the stalking conduct both to impose the upper term for burglary and to run the stalking term consecutively. (See Cal. Rules of Court, rule 4.425(b)(i).) Accordingly, it imposed the upper term for burglary, but the midterm for stalking, and it ran the stalking term concurrently.

B. Analysis.

“Selection of the upper term is justified only if circumstances in aggravation are established by a preponderance of evidence and outweigh circumstances in mitigation.” (People v. Wright (1982) 30 Cal.3d 705, 710; see also Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(a), (b).) Rule 4.421 of the California Rules of Court lists some permissible aggravating factors. However, these are not exclusive; the trial court can use as aggravating factors any “other circumstances that are reasonably related to the sentencing determination.” (People v. Brown (2000) 83 Cal.App.4th 1037, 1044; see also Cal. Rules of Court, rule 4.408(a).)

This can include the defendant’s commission of other offenses, provided they are rationally related to the sentence. For example, in People v. Hall (1988) 199 Cal.App.3d 914, the defendant entered an apartment and began beating one of the residents with a flashlight (and, at one point, a wok). The jury convicted him of, among other things, assault with a deadly weapon, but it hung on a burglary charge, which was dismissed. (Id. at pp. 916-917.) The appellate court held that the trial court could properly use the commission of the burglary to aggravate the sentence for the assault. (Id. at p. 922.)

Similarly, in People v. Gonzales (1989) 208 Cal.App.3d 1170, the appellate court held that the trial court could properly impose the upper term for voluntary manslaughter based in part on the fact that, “years after the charged offense,” the defendant had “fir[ed] three shots . . . at a gas station attendant.” (Id. at pp. 1172-1173.) It explained: “One primary objective of the sentencing decision is protection of society [citation]; Gonzales’s subsequent violent conduct indicated a maximum sentence was advisable to serve that objective. Moreover, the judge considered the 1984 shooting as part of a pattern of gun ownership and gun misuse, including a 1980 conviction for shooting a handgun in the air while driving under the influence of alcohol and an arrest for carrying a loaded firearm in a public place. These incidents could reasonably be viewed as ‘a pattern of violent conduct which indicates a serious danger to society’ [citation].” (Id. at p. 1172, fn. omitted, quoting former Cal. Rules of Court, rule 421(b)(1).)

Basically, defendant argues that the trial court erred by using the facts of the stalking to impose the upper term for the burglary. He argues that the burglary consisted of defendant’s third entry into Schehl’s house, during which he took her cell phone. There was ample evidence that defendant entered Schehl’s house that night to further his overall stalking course of conduct. The trial court could properly find the burglary to be aggravated because defendant committed two other burglaries that night -- “leaving and coming back in, . . . all the time in and out and in and out.” It also properly considered the fact that this repeated conduct demonstrated extraordinary “stick-to-it-ness, . . . determination [and] compulsion.” Defendant was not even deterred by the fact that the police were already on the alert and trying to find him.

Defendant argues that the trial court used defendant’s entire week-long stalking binge in aggravation of the burglary. That is not how we read the record. To the contrary, the trial court expressly relied on defendant’s conduct “that night.” (Italics added.) Even if it did do so, however, it did not err, because those circumstances were reasonably related to the gravity of the ensuing burglary.

VI

BLAKELY

Defendant contends that, in sentencing him to the upper term for burglary, the trial court violated the principles stated in Blakely v. Washington, supra, 542 U.S. 296. As he acknowledges, we are required to reject this contention under the authority of People v. Black (2005) 35 Cal.4th 1238. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

VII

SECTION 654

Defendant contends that Penal Code section 654 required the trial court to stay the term imposed for stalking.

“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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. . . .’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]

If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

“Burglary consists of entry into a house or other specified structure with the intent to commit a felony. [Citation.] Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, Penal Code section 654 will permit punishment for one or the other but not for both. [Citations.]” (People v. Centers (1999) 73 Cal.App.4th 84, 98-99 [Fourth Dist., Div. Two].) Here the trial court found that defendant committed the burglary with the intent to stalk: “[I]t’s not a classic burglary. This is a stalking burglary.” It follows that it should have stayed the stalking term.

The People argue that there were “many instances of stalking” that “were separate and temporally divisible from the burglary . . . .” The crime of stalking, however, requires, among other things, “repeated[] follow[ing]” and/or “harrass[ment]” (Pen. Code, § 646.9, subd. (a)); “harrass[ment],” in turn, is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.” (Pen. Code, § 646.9, subd. (e).) Thus, stalking is a “course of conduct” offense. (People v. Zavala (2005) 130 Cal.App.4th 758, 769.) All of defendant’s acts of stalking in this case constituted only one crime. The stalking was ongoing when defendant committed burglary; and, as the trial court essentially found, the burglary was “incident to” and a “means of accomplishing or facilitating” the stalking.

We therefore conclude that we must stay the term imposed for stalking. Because the stalking term was run concurrently, there will be no net change in defendant’s sentence.

VIII

DISPOSITION

The judgment is modified by staying the two-year concurrent sentence on count 4, for stalking. This stay will become final if and when defendant has served the remainder of his sentence. The judgment as thus modified is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections. (Pen. Code, §§ 1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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