Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F09016
ELIA, J.A jury convicted appellant of conspiracy to commit the crime of possession of methamphetamine for sale, possession of methamphetamine for sale, and sale of methamphetamine. (Pen. Code, § 182, Health & Saf. Code, §§ 11378, 11379.) The jury made a special finding that the object of the conspiracy was to furnish methamphetamine to Steve Rochester. The parties stipulated that, for purposes of a weight enhancement, the amount of methamphetamine involved exceeded one kilo. (Health & Saf. Code, § 11370.4, subd. (b)(1).) Following a court trial, the court found true allegations that appellant had two prison prior convictions and three prior narcotics convictions. (Pen. Code, § 667.5, Health & Saf. Code, § 11370.2, subd. (c).) The court found not true allegations that appellant had two prior serious or violent felonies. (Pen. Code, § 667, subds. (b)-(i).) The court sentenced appellant to a state prison term of 11 years, eight months.
Appellant contends that the trial court erred in imposing a consecutive sentence for the conspiracy count, in imposing a concurrent sentence, rather than a stayed sentence, on the possession for sale count, and in calculating the restitution fine. We modify the judgment.
Evidence at Trial
In December 2003, Santa Cruz Police Officer Bill Azua and Edward Santana, an agent with the Santa Clara County Narcotics Enforcement Team (SCCNET), were working with Steven Rochester, a confidential informant. Rochester had been arrested on December 11 for possession of three ounces of crystal methamphetamine, worth about $3,600, that was found during a traffic stop. Rochester then volunteered to give the police information about "The Mexican," his supplier, and signed an agreement to furnish the police with information that would lead to narcotics arrests. Rochester told Azua that "he could order up five pounds" of methamphetamine from appellant. Azua and Santana wanted to arrange for appellant to deliver this methamphetamine to Rochester's residence on December 12 and so that they could arrest appellant there. Actually, Rochester was lying to the officers. The methamphetamine had already been delivered to Rochester on December 5. Azua had Rochester "pick [the methamphetamine] up and deliver it" to the officers on the night of December 12. Because the officers could not arrest appellant according to their original plan, on December 16 they, with the assistance of several other officers, staged the execution of a mock search warrant at Rochester's mobile home to make it look as if the police had seized the methamphetamine.
Azua explained that "a snitch is a person that tells on another person . . . . A confidential informant is a person who has been signed with . . . the SCCNET, signed up with us, has been proven reliable."
After the service of the fake warrant, Azua had Rochester call appellant from the police station. Azua told Rochester to use "an exciting tone, nervous tone, scared tone, [and] relay to Mr. Chavez that his motor home was just hit by the police and that his product was taken by the police." Appellant and Rochester had a series of conversations during which appellant expressed incredulity and concern over this news, eventually telling Rochester, "That's 50,000 dollars I'm not losing that shit bro . . . I want it back . . . [w]here's the cops at if I don't get my shit back?" Appellant told Rochester, "H[e]y I want my shit back. I don't care how." When Rochester said that he would repay appellant, appellant told Rochester to "find out who got you and I'll take care of the rest . . . I want the leak and I'll let you go kay . . . I will find out who it is . . . . Find out who it is and I'll take care of this . . . 50,000 dollars." Later, appellant told Rochester, "Don't worry about it you get back to work." Rochester also called Anthony Felice, using a panicked voice, and said that he was trying to reach appellant and trying to find more drugs.
Azua stayed in contact with Rochester. On January 8, 2004, based on information from Rochester, Azua and Santana, with other SCCNET agents, were watching Felice's home. The garage door opened and Felice appeared with this girlfriend, Melissa Tate. A black BMW pulled into the driveway and appellant got out of the car. The waiting officers "rushed" the driveway. Santana made eye contact with appellant. Santana testified that appellant turned and "smirked" at him as appellant, Felice, and Tate ran into the house and locked the doors.
Rochester did not testify at trial. Felice testified at trial that appellant had stopped by to collect $2,000 that Felice owed appellant. When the police arrived, either Felice or appellant grabbed one pound of methamphetamine that had been hidden in the garage. Appellant told Felice to flush the drugs down the toilet and tore open the plastic wrapping. Felice flushed the drugs and plastic bags. The police were ordering them to come out of the house and threatening to enter. Against appellant's orders, Felice and Tate left the house and surrendered. The police searched the house and found methamphetamine residue on the toilet bowl, $2,000 in cash, some swords, a loaded shotgun, and two cell phones.
Following his arrest that day, Felice became an informant. In exchange for becoming a SCCNET informant, Felice was promised that he would be released from jail to his father's custody, would admit a probation violation, and would be charged with being an ex-felon in possession of a weapon. If Felice testified truthfully against appellant, he "would not receive jail time."
Felice testified that he had become addicted to methamphetamine and was dealing to support his habit. Felice would pay appellant $700 for an ounce of methamphetamine which Felice could sell for $1,000. According to Felice, Rochester had worked for appellant for about a year. Felice and Rochester had conducted some transactions together. Appellant told Felice to contact Rochester to collect money for the drugs that had been lost when the police executed the search warrant and that Felice would get some money if he managed to collect. When Rochester said that he did not have any money, Felice asked Rochester for his green Camaro and his light blue Jaguar as "Some method of payment for drugs." Rochester told Felice that his cars had been impounded. Felice testified that neither he nor appellant trusted Rochester. Appellant asked Felice to try to "find out what Mr. Rochester was up to" and "To retrieve some kind of proof of paperwork from the warrant that was served at his trailer or his arrest record or whatever." A dominant topic of conversation between appellant and Felice became trying to "figure out where the leak was." Felice did not think that appellant was the leak because appellant "was supplying the drugs."
Sentencing
Background
The court chose the sale of methamphetamine, count 3, as the principal term and imposed a three-year prison term. The court imposed a two-year term on the possession for sale, count 2, and ordered it to run concurrently with count 3. The court imposed a consecutive eight-month sentence for the conspiracy, count 1. The court imposed a consecutive three-year term for the weight enhancement, a consecutive three-year term for the prior drug conviction enhancement, and two one-year terms for each of appellant's prison prior convictions for a total term of 11 years, eight months.
The trial court explained that it was imposing a consecutive sentence on the conspiracy count "on the basis that that reflects a more complicated case." The court said that "the reason for imposing that as consecutive sentence is that it gives the complexity of the conspiracy that existed here warrants treating it as – treating it as a consecutive sentencing item."
Penal Code section 654/Conspiracy (Count 1)
The information charged in count 1 that "On or about or between 12/11/2003 and 1/8/04," appellant "did unlawfully conspire together and with another person and persons whose identity is unknown to commit the crime of sale of methamphetamine." This count alleged just one overt act, described as "defendant furnished methamphetamine to Steve Rochester." With respect to count 1, the jury made a special finding of true that the object of the conspiracy was to furnish methamphetamine to Steve Rochester. Count 3, charging sale of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), was alleged to have been committed "on or about 12/12/2003." The jury had been instructed, "you may not convict the defendant of count 1, conspiracy, while simultaneously finding him not guilty on count 3, sale of a controlled substance."
Appellant contends, "The trial court's imposition of a consecutive sentence for conspiracy to sell methamphetamine in count one is unauthorized under Penal Code section 654 . . . because the objective of this offense was the same as that for the sale of methamphetamine, the principal term, in count three."
Penal Code section 654 provides that a defendant may not be punished more than once for the same act. When a defendant is convicted of a crime and conspiracy to commit that crime, and the objective of the conspiracy is limited to the crime for which the defendant is convicted, the sentence for the conspiracy conviction must be stayed pursuant to section 654. (In re Romano (1966) 64 Cal.2d 826, 828.) "If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense." (In re Cruz (1966) 64 Cal.2d 178, 181.) The question whether the defendant had the same objective in committing more than one offense is a question of fact for the trial court, and we review the court's finding under the substantial evidence standard. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Appellant argues, "Both the evidence and the manner in which the case was presented to the jury compel the conclusion that the conspiracy to sell and the substantive sales charge had but one criminal objective, to wit: the sale of the 4.6 pounds of methamphetamine delivered by appellant to Rochester." Appellant argues, "Because the overt act which formed the basis for count one, appellant providing the 4.6 pounds of methamphetamine to Rochester was the same act which formed the basis of the substantive charge of sale of methamphetamine in count three, multiple punishment is barred." Respondent argues that the evidence at trial supports the trial court's implicit finding that "appellant's conspiracy was not limited to furnishing methamphetamine to Rochester but was part of a larger scheme to furnish and sell methamphetamine to multiple people." Respondent points to appellant's statement to Rochester to "get back to work" to argue that this "could be reasonably understood to mean that Rochester was to continue selling methamphetamine." Respondent directs attention to Felice's testimony, arguing that "A reasonable inference was that Felice was part of a larger conspiracy to sell methamphetamine" and that the $2,000 appellant was coming to pick up was for methamphetamine that appellant had furnished to Felice.
The court said that the conspiracy was "a more complicated case" and referred to the "complexity of the conspiracy." However, what was complicated and complex was not the conspiracy itself, but the proof problems presented when it was determined that Rochester would not be testifying. As charged, and as presented by the prosecutor to the jury, the conspiracy here was to sell the 4.6 pounds of methamphetamine that Chavez had furnished to Rochester. The prosecutor described the conspiracy count to the jury as "He furnished drugs to a guy we don't even know." The prosecutor said that without Rochester's testimony, the jury was "going to have to look for corroboration." Without Rochester's testimony, the prosecutor had to bring in Felice to strengthen the connection between appellant and the methamphetamine. This was accomplished through Felice's testimony that he had sold drugs for appellant and that appellant had told him to try to collect money from Rochester for the 4.6 pounds of methamphetamine. The prosecutor argued, "When Mr. Felice says I was flushing dope down the toilet and this agent scrapes the toilet and we bring in meth, that's called corroboration."
The jury made a special finding that the object of the conspiracy was to furnish methamphetamine to Steve Rochester. If the conspiracy to furnish methamphetamine to Rochester in count 1 was broader in scope than the charges of possession for sale, count 3, and furnishing methamphetamine, count 3, the court would not have instructed the jury that, "you may not convict the defendant of count 1, conspiracy, while simultaneously finding him not guilty on count 3, sale of a controlled substance." Although the proof of the conspiracy count was complicated and complex to present without Rochester's testimony, the objective of the conspiracy was the same as that for the principal term, the sale of methamphetamine. Accordingly, punishment for count 1 must be stayed.
It appears that at the time of sentencing in this matter appellant was being prosecuted in a separate case for conspiracy, possession for sale of methamphetamine, resisting arrest and destruction of evidence in connection with the events at Felice's house.
Penal Code Section 654/Possession for Sale (Count 2)
Appellant contends that, pursuant to Penal Code section 654, the trial court should have stayed the three-year sentence on the possession for sale count, rather than imposing it as a concurrent sentence to the sentence for sale of methamphetamine, count 3. Respondent concedes, "Because counts two and three involved the same 4.6 pounds of methamphetamine, the sentence on count two should have been stayed. (See People v. Lopez (1992) 11 Cal.App.4th 844, 849-850; People v. Smith (1985) 163 Cal.App.3d 908, 912-914; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)" We accept this concession as appropriate.
Restitution Fine
Appellant contends, "The trial court's imposition of a $6,000 restitution fine under Penal Code section 1202.4 violated section 654's proscription against multiple punishment and trial counsel['s] failure to object constituted prejudicial ineffectiveness of counsel."
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Accordingly, "[e]ven where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citations.]" (Ibid.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citations.]" (Ibid.) Our review is highly deferential, indulging a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Hart (1999) 20 Cal.4th 546, 624.)
This court has said that "the section 654 ban on multiple punishments is violated when the trial court considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the court's calculation of the restitution fine under the formula provided by section 1202.4, subdivision (b)(2)." (People v. Le (2006) 136 Cal.App.4th 925, 934.) We have determined that both counts 1 and 2 should have been stayed pursuant to Penal Code section 654. Appellant argues, "Had trial counsel objected both to the improper consecutive sentence in count one and to the trial court's improper inclusion of this conviction, as well as that in count two, when the court calculated the restitution fine using the formula, it is reasonably probable that the trial court would have imposed a smaller restitution fine." Respondent makes no mention of the ineffective assistance claim, but concedes that the restitution fine attributable to count 2 must be reduced.
Penal Code section 1202.4 provides that the trial court may determine a defendant's restitution fine by multiplying $200 by the number of years the defendant is sentenced to prison. The record indicates that the trial court relied on the formula provided by section 1202.4, subdivision (b) in calculating the $6,000 restitution fine. There could be no tactical basis for counsel to refrain from arguing that section 654 mandated the staying of the sentences in counts 1 and 2 and any restitution fine for those counts. We will reduce the restitution fine accordingly. In this case, the amount determined by the formula would be $200 multiplied by the sentence of 11 years, multiplied by one felony conviction, that is, $2,200.
Disposition
The judgment is ordered modified to reflect that the sentences on count 1, conspiracy, and count 2, possession for sale of methamphetamine are stayed pursuant to Penal Code section 654. The judgment is also modified to reduce the restitution fine from $6,000 to $2,200. As so modified, the judgment is affirmed. The superior court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections.
WE CONCUR: RUSHING, P. J., PREMO, J.