Opinion
F077160
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. JERRY LEE GROVER, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF164231A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
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Jerry Lee Grover was convicted of multiple counts of possessing drugs for sale and transporting drugs for sale. He argues the possession for sale convictions must be reversed because possessing drugs for sale is a lesser included offense of transporting drugs for sale. We reject this contention.
Grover asks for independent review of the trial court's inquiry regarding his Pitchess motion concerning law enforcement personnel records. We conclude the trial court did not abuse its discretion in finding no records were discoverable pursuant to Grover's Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Grover requests remand of the matter for the trial court to strike, pursuant to a change in the law, prior-prison-term sentence enhancements that were imposed at sentencing. The People acknowledge that remand for this purpose is necessary. We agree with the parties.
Finally, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Grover contends the trial court was required to conduct an ability to pay hearing before imposing certain fines and fees at sentencing. Since Grover may raise this issue in the trial court on remand, we do not address it.
PROCEDURAL HISTORY
Grover was charged, in an amended information (information), with six felony counts. Counts 1 to 4 pertained to acts committed on April 5, 2016: transportation of heroin for sale (count 1); possession of heroin for sale (count 2); transportation of methamphetamine for sale (count 3); possession of methamphetamine for sale (count 4). (Health & Saf. Code, §§ 11351, 11352, 11378, 11379.) Counts 5 and 6 pertained to acts committed on May 2, 2016: transportation of methamphetamine for sale (count 5) and possession of methamphetamine for sale (count 6). (§§ 11378, 11379.) The information further alleged that Grover had six prison priors. (Pen. Code, § 667.5, subd. (b).)
Subsequent statutory references are to the Health and Safety Code unless otherwise specified.
Grover was convicted by a jury of all counts. In a bifurcated proceeding, the trial court found two of the six prison prior allegations to be true and dismissed the rest.
Grover was sentenced to an aggregate term of eight years in a split sentence, with the first five years to be served in county jail and the balance on mandatory supervision. (Pen. Code, § 1170, subd. (h).)
FACTS
We will summarize the facts only briefly as the issues on appeal do not turn on the facts of the case.
Prosecution Case
On April 5, 2016, Deputy Rutter of the Kern County Sheriff's Department stopped a tan pickup truck near Oildale. Grover was the driver and sole occupant of the truck. Rutter searched Grover's person and found two capped hypodermic syringes in Grover's pocket. A subsequent search of the truck yielded a package of approximately 20 unused hypodermic syringes. In addition, two containers were retrieved from the undercarriage of the truck. The first contained 25.7 grams of heroin; the other had two bags, containing 19.7 grams of heroin and 58.4 grams of methamphetamine, respectively. Grover admitted the containers had methamphetamine and heroin intended for sale.
On May 2, 2016, Officer Wattree of the Bakersfield Police Department stopped a gray pickup truck on Edison Highway. Grover was driving the truck, and had a passenger. Wattree searched the truck's cab and found eight unused hypodermic syringes, a digital scale, a black case with two additional syringes, three cell phones, and $728 in cash. A bag containing 25.6 grams of methamphetamine was found wedged into the opening of the truck's fuel tank.
Bakersfield Police Detective Paiz testified as an expert witness for the People. He opined that the drugs obtained from the trucks on both occasions were intended for sale.
Defense Case
Grover testified on his own behalf. Regarding the incident on April 5, 2016, Grover said he falsely admitted the drugs were for sale (actually, they were for personal use). He only said the drugs were for sale because he was told by law enforcement at the scene that he could "make this case go away" if the drugs were for sale and he provided information regarding other drug dealers. With regard to the May 2, 2016 incident, Grover admitted the drugs were his, noting they were for personal use.
DISCUSSION
I. Possession for Sale is Not Lesser Included Offense of Transportation for Sale
Grover argues his convictions on counts 2 (possession of heroin for sale), 4 (possession of methamphetamine for sale), and 6 (possession of methamphetamine for sale) must be vacated, because the possession-for-sale offenses at issue in these counts are lesser included offenses of the transportation-for-sale offenses of which he was convicted in counts 1 (transportation of heroin for sale), 3 (transportation of methamphetamine for sale), and 5 (transportation of methamphetamine for sale). Upon considering the issue de novo, we disagree with Grover's contentions. (People v. Villegas (2012) 205 Cal.App.4th 642, 646 ["[t]he issue of whether multiple convictions are proper is ... reviewed de novo"].)
Transportation of heroin for sale is criminalized by section 11352 and transportation of methamphetamine for sale is criminalized by section 11379. These statutes are substantively identical except for encompassing different controlled substances—heroin in the case of section 11352 and methamphetamine in the case of section 11379—and prescribing different punishments.
Section 11352 provides, in pertinent part, "every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport [specified opiates, including heroin]," shall be punished by imprisonment for "three, four, or five years." (Italics added.)
Section 11379 provides, in pertinent part, "every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport [specified stimulants, including methamphetamine]," shall be punished by imprisonment for "two, three, or four years." (Italics added.)
Possession of heroin for sale is criminalized by section 11351 and possession of methamphetamine for sale is criminalized by section 11378. These statutes are also identical except for encompassing different controlled substances—heroin in the case of section 11351 and methamphetamine in the case of section 11378—and prescribing different punishments.
Section 11351 provides, in pertinent part, "every person who possesses for sale or purchases for purposes of sale [specified opiates, including heroin]," shall be punished by imprisonment for "two, three, or four years." (Italics added.)
Section 11378 provides, in pertinent part, "a person who possesses for sale [specified stimulants, including methamphetamine]," shall be punished by imprisonment for 16 months, or two or three years. (Italics added.)
Generally, "a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); People v. Gonzalez (2014) 60 Cal.4th 533, 537 ["We have repeatedly held that the same act can support multiple charges and multiple convictions."].) There is, however, an exception to this general rule: a defendant cannot be convicted of two offenses when one is necessarily included in the other. (Reed, supra, at p. 1227 ["A judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.'"]; People v. Ortega (1998) 19 Cal.4th 686, 693 ["a defendant properly may be convicted of two offenses if neither offense is necessarily included in the other"], overruled on other grounds by Reed, supra, 38 Cal.4th at p. 1228; People v. Pearson (1986) 42 Cal.3d 351, 355 [a defendant can be convicted of both sodomy with a child under 14 and lewd conduct for the same act because "the offense of lewd conduct is not a lesser included offense of statutory sodomy"], overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632.) This exception ensures that a defendant is not twice convicted of the necessarily included, lesser offense. (People v. Medina (2007) 41 Cal.4th 685, 702.)
When two offenses are charged, and the defendant is convicted of both, we apply the "elements" test to assess whether one is a necessarily included offense of the other and, in turn, whether multiple conviction is proper. (Reed, supra, 38 Cal.4th at p. 1229 ["In deciding whether multiple conviction is proper, a court should consider only the statutory elements."]; People v. Scheidt (1991) 231 Cal.App.3d 162, 165-171 ["only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding"].) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at p. 1227.) In other words, "[i]f the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser," then the lesser is necessarily included in the greater and a defendant's conviction of the lesser must be vacated. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467; Reed, supra, at p. 1227 ["'[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former'"].)
Since 2014, transportation under sections 11352 and 11379 means transportation for sale. (See §§ 11352, subd. (c), 11379, subd. (c); Stats. 2013, ch. 504, §§ 1, 2; see also People v. Ramos (2016) 244 Cal.App.4th 99, 105 (Ramos) [transportation of drugs for personal use is no longer a transportation offense].) Consequently, transportation offenses now require specific intent, in that the defendant must "have acted with the intention that the controlled substance at issue be sold, either by the defendant personally or by someone else." (People v. Lua (2017) 10 Cal.App.5th 1004, 1015.) In order to convict a defendant of transportation for sale under the relevant statutes, the People must prove: (1) the defendant transported—that is, he "carr[ied] or convey[ed]"—a controlled substance; (2) he did so with the intent that he or someone else would sell it; (3) he knew of its presence; (4) he knew of its nature or character as a controlled substance; and (5) it was a useable amount. (§§ 11352, subds. (a) & (c); 11379, subds. (a) & (c); People v. Lacross (2001) 91 Cal.App.4th 182, 185; People v. Busch (2010) 187 Cal.App.4th 150, 155-156; see generally CALCRIM No. 2300 [setting forth elements of transportation for sale].)
To convict a defendant of possession for sale under sections 11351 and 11378, the People must prove: (1) the defendant possessed a controlled substance; (2) he did so with the intent that he or someone else will sell it; (3) he knew of its presence; (4) he knew of its nature or character as a controlled substance; and (5) it was a useable amount. (In re Z.A. (2012) 207 Cal.App.4th 1401, 1427; People v. Montero (2007) 155 Cal.App.4th 1170, 1175-1176 (Montero); Ramos, supra, 244 Cal.App.4th at p. 105; see generally CALCRIM No. 2302 [elements of possession for sale].)
As an initial matter, it is clear a person can sell drugs without possessing them. (See People v. Murphy (2007) 154 Cal.App.4th 979, 984 ["a conviction for the greater offense of [selling drugs] does not require, as one of its statutory elements, the lesser offense of [possessing drugs for sale"]; People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [possession of drugs is not lesser included offense of selling drugs or offering to sell drugs, as possession is not an element of selling offenses].) Similarly, a person can transport drugs without possessing them. (People v. Rogers (1971) 5 Cal.3d 129, 134 (Rogers) [while "possession is commonly a circumstance tending to prove transportation," it "is not an essential element of that offense"]; People v. Eagle (2016) 246 Cal.App.4th 275, 280 ["simple possession of methamphetamine is not a lesser included offense of transporting methamphetamine"].)
In other words, a person can sell or transport drugs that are in "the exclusive possession of another." (Rogers, supra, 5 Cal.3d at p. 134.) For example, a person can knowingly drive a drug dealer to meet a customer, with the drug dealer carrying the drugs in a briefcase to which only the dealer knows the combination. In this situation, it is possible for the driver to transport drugs for sale without possessing them (i.e., without physically controlling, or having the "right to control," them). (People v. Morante (1999) 20 Cal.4th 403, 417 [possession may be actual, physical possession or constructive possession turning on the "right to control" an item]; Montero, supra, 155 Cal.App.4th at pp. 1175-1176 [same].) Thus, transportation of drugs for sale does not necessarily require possession for sale. It follows that transportation for sale does not subsume all the elements of possession for sale. The latter is therefore not a necessarily included offense of the former.
People v. Johnson (1970) 5 Cal.App.3d 844, 847 (Johnson) and People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 (Kilborn), on which Grover relies, do not change our conclusion. These cases suggest that possession is a lesser included offense of transportation when "the possession proved in the [particular] case was incidental to, and a necessary part of, the transportation charged," in that "[n]o prior, different or subsequent possession ... was shown." (Johnson, supra, at p. 847.) In light of more recent guidance from our Supreme Court explaining that the question of multiple convictions is resolved solely under the statutory elements test, we decline to apply Johnson and Kilborn here. (See Reed, supra, 38 Cal.4th at p. 1228, fn. 2 [noting, with reference to Johnson: "[t]he continuing validity of the rule stated in these old cases is dubious in light of more recent events"].)
Grover's convictions for transportation for sale and for possession for sale are affirmed. II. Trial Court's Pitchess Inquiry
Pitchess, supra, 11 Cal.3d 531. The statutory scheme governing discovery pursuant to Pitchess is contained in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7, and 832.8.
Before trial, Grover filed a Pitchess motion seeking discovery of personnel records of Deputy Gabriel Romo, an officer involved in his April 5, 2016 arrest. More specifically, Grover sought "[a]ny evidence of, or [citizen] complaints of: (1) false statements in reports, (2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of probable cause, (5) acts involving moral turpitude, and (6) any other evidence of or complaints of dishonesty by Deputy Gabriel Romo."
The trial court conducted a Pitchess inquiry. It held an in camera hearing at which the custodian of records for the Kern County Sheriff's Department testified he had made a diligent search for documents that were responsive to Grover's Pitchess motion, and presented records from Deputy Romo's personnel file for the court's review. The court concluded the records did not contain any discoverable information.
Grover asks us to independently review the sealed transcript of the in camera hearing, as well as the records reviewed by the trial court, to assess the propriety of the proceedings and the court's ultimate decision on discoverability of records. The People have no objection to Grover's request.
A trial court's determinations pursuant to a Pitchess inquiry are reviewed for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
We have independently reviewed the record of the trial court's Pitchess inquiry, including the transcript of the in camera hearing and the records submitted to the trial court. The trial court properly conducted the in camera hearing. Furthermore, we detect no abuse of discretion in the court's conclusion that the records provided by the Kern County Sheriff's Department did not contain discoverable information within the scope of Grover's Pitchess motion. III. Prior Prison Term Sentence Enhancements
It appears the Superior Court prepared a settled statement regarding the documents it reviewed in conducting its Pitchess inquiry. In preparing the settled statement, the Superior Court obtained the relevant documents from the custodian of records of the Kern County Sherriff's Department and transmitted them to this court.
Grover contends remand is necessary pursuant to recently-enacted Senate Bill No. 136 (2019-2020 Reg. Sess.; effective January 1, 2020) (Senate Bill No. 136), which has retroactive effect. (Stats. 2019, ch. 590, § 1.) He argues that, under Senate Bill No. 136, the trial court must strike the two prior prison term enhancements applied to his sentence. (Pen. Code, § 667.5, subd. (b).) The People agree remand is appropriate, for the trial court to strike these prior prison term enhancements. We agree with the parties. IV. Fines and Fees
Grover's sentence included $240 in court operations assessments under Penal Code section 1465.8, $180 in court facilities assessments under Government Code section 70373, and a statutory minimum restitution fine of $300 under Penal Code section 1202.4, subdivision (b), among other fines and fees.
Citing Dueñas, supra, 30 Cal.App.5th 1157, Grover argues the imposition of these assessments and fines without a prior hearing to determine his ability to pay was unconstitutional. Dueñas held that due process "requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) As for restitution fines, Dueñas held that, "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.; accord, People v. Belloso (2019) 42 Cal.App.5th 647; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 489-490 (Castellano) [following Dueñas but clarifying that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; contra, People v. Allen (2019) 41 Cal.App.5th 312, 326-330 [rejecting the defendant's Dueñas-based due process and equal protection claims]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenge to fines, fees, and assessments should be made under the Eighth Amendment's Excessive Fines Clause]); see also People v. Kopp (2019) 38 Cal.App.5th 47, 94-98 [endorsing applicability of Dueñas to non-punitive assessments, including court facilities assessment, court operations assessment, and criminal justice administration fee, but not to punitive fines], review granted Nov. 13, 2019, S257844.)
We conclude it is unnecessary to reach Grover's Dueñas claim given our remand of this matter under Senate Bill No. 136. On remand, Grover may raise his Dueñas claim in the trial court in the first instance. (Castellano, supra, 33 Cal.App.5th at pp. 489-490.)
DISPOSITION
The matter is remanded for the trial court to strike Grover's prior prison term sentence enhancements. On remand, Grover may also raise a claim pursuant to Dueñas, supra, 30 Cal.App.5th 1157. The judgment is affirmed in other respects.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SNAUFFER, J.