Opinion
C087734
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. SEAN DAVID KENTALA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF00549)
A jury found defendant Sean David Kentala guilty of manufacturing methamphetamine and possessing methamphetamine for sale. He was sentenced to a five-year eight-month aggregate term.
On appeal, defendant contends (1) the trial court erred in failing to grant a mistrial after defense counsel misstated evidence during opening statement; (2) punishment for possession of methamphetamine for sale must be stayed under Penal Code section 654 ; and (3) remand is required in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160 (Dueñas).
Undesignated statutory references are to the Penal Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Officers arrived at a home to execute a search warrant, and when their demands to open up went unanswered, they forced entry. They found defendant standing by the door.
Searching the home, officers noticed the garage — which had a living, office, and kitchen area — smelled like a methamphetamine lab. On the desk in the office area of the garage was 2.7 grams of methamphetamine.
The parties stipulated to the amount and that it was methamphetamine.
Officers also found in the garage various items used in, or associated with, manufacturing methamphetamine, including liquid drain cleaner, a bottle with a dark gray "sludgy" material inside, tubing, a well-used spoon with a white crystallin substance on it, rock salt, and a glass beaker with a bilayered liquid in it. Officers also found two jars in the freezer containing a dark-colored liquid.
A sample of the liquid was taken and forms the basis of defendant's first contention.
Also found were small plastic bags, two digital scales, a scoop, and a mirror with some methamphetamine on it. This was in addition to several used glass pipes, which an officer described at trial as paraphernalia.
At trial, an officer opined the methamphetamine in the garage was possessed for sale, citing "the presence of items we commonly see when we investigate a narcotic sales case; the presence of packaging material, the presence of scales, the presence of scoops . . . all the items you need to package and sell it are there, in addition to there being a suspected methamphetamine laboratory on the premises."
The jury found defendant guilty of manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)); and possessing a controlled substance for sale (Health & Saf. Code, § 11378).
The trial court imposed a five-year eight-month aggregate term, calculated as follows: a five-year middle term for manufacturing a controlled substance and a consecutive term of eight months (one-third the middle term) for possessing a controlled substance for sale.
DISCUSSION
I. The Mistrial Motion
On appeal, defendant contends reversal is required because the trial court refused to order a mistrial after his trial counsel prejudicially misstated the evidence during the defense opening statement. We disagree.
A. Additional Background
During opening statements, the prosecutor mentioned a liquid found in a glass jar in defendant's freezer. He told the jury a Gas Chromatography Mass Spectrometry test found it contained ephedrine or pseudoephedrine, methamphetamine, amphetamine, hydriodic acid, red phosphorous, and aziridines, the latter of which is found in the conversion of ephedrine to methamphetamine.
In the defense opening statement, counsel told the jury, "you are going to hear testimony from a criminalist who has tested over 2500 samples for the presence of drugs, lab chemicals, used in the manufacture of drugs, and so forth. . . . [¶] You are going to hear that he tested [the] sample [from the freezer] . . . and that [it] contained no pseudoephedrine, no ephedrine, no precursors for the manufacture of methamphetamine, no methamphetamine, and no amphetamine."
Counsel also stated that no pseudoephedrine pills, or their containers, were found and several other methamphetamine precursors were also absent.
Three days later, defense counsel moved for a mistrial. He explained that he had told the jury in his opening statement the sample tested negative based on a report from a laboratory the defense had retained. But when he had sent the Department of Justice's results to the retained lab to see if they could explain the discrepancy, the lab retested the substance and ultimately concluded it contained methamphetamine and amphetamine, and ephedrine could not be ruled out. Counsel learned this after he had given his opening statement.
Moving for a mistrial, counsel argued to the trial court: "Obviously that puts me in a difficult position, because I told the jury that it was going to be negative. . . . So my credibility, through no fault of my own, has been damaged significantly with this jury, and not just my credibility, but my position is that it damaged the credibility of the defense case; in other words, if I get up and talk to the jury about how you can't trust this piece of evidence, that piece of evidence, for these various reasons, they are going to look at me and say, we can't trust your case either." Counsel added: "I don't think me explaining away what happened is necessarily going to undo the damage that's been done to the defense case itself."
Defendant, however, did not agree with his trial counsel's mistrial motion and, in response to the trial court's inquiry, told the court he wanted to go forward with trial. Counsel conceded, "I know that my client needs to consent to [the mistrial motion], I think, under the law in order for that to be effective."
The trial court noted that without defendant's consent, it would need "to find a legal necessity to declare a mistrial . . . ." It continued: "And I don't see that what happened amounts to a legal necessity. It's a tactical issue, it sounds like, and the court understands your basis for the motion, but without [defendant's] consent to the mistrial, the court is going to deny that motion."
Later, a forensic toxicologist testified for the defense, explaining that the first and second test of the substance found no controlled substances. But subsequent testing, conducted on the day of opening arguments, found amphetamine and methamphetamine. During closing argument, trial counsel told the jury, "The reason I brought [the forensic toxicologist] in here to explain all that to you is so that you would understand when I got up here at the beginning of the case, I wasn't trying to pull a fast one."
B. Analysis
Under the rules of double jeopardy in California, "a discharge of [a] jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consented thereto or legal necessity required it." (Curry v. Superior Court (1970) 2 Cal.3d 707, 712 (Curry).) Consequently, to avoid double jeopardy for a mistrial, there must be a legal necessity for a new trial or the defendant must consent to a new trial. (Larios v. Superior Court (1979) 24 Cal.3d 324, 331-333 (Larios); Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1524 (Carrillo).) As our high court has explained: "A defendant may choose not to move for or consent to a mistrial for many reasons." (Curry, at p. 717.)
Our high court explained: "[A defendant] may be of the opinion that no error in fact occurred, or if it occurred, that it was not prejudicial. He may believe that any error in admitting improper evidence can be cured by a motion to strike or a request for admonition, or can be refuted by impeachment of the witness or contrary defense evidence. Indeed, even when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew, such as a desire to minimize the embarrassment, expense, and anxiety mentioned above. These considerations are peculiarly within the knowledge of the defendant, not the judge, and the latter must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare." (Curry, supra, 2 Cal.3d at p. 717.) We would add to this list, the possibility that defendant could have been satisfied with the jury and did not want to take a chance that a jury he perceived to be less favorable might ultimately be selected if a new trial were ordered.
Here, because defendant refused to consent to his trial counsel's mistrial motion, the question is whether legal necessity obligated the trial court to discharge the jury.
Legal necessity typically arises from the jury's inability to agree, or from physical causes beyond the court's control, such as a judge, juror, or defendant's death, illness, or absence. (Curry, supra, 2 Cal.3d at pp. 713-714.) But a "mere error of law or procedure," does not constitute legal necessity. (Id. at p. 714.) Indeed, "even 'palpably prejudicial errors' in evidentiary rulings do not give rise to legal necessity for declaring a mistrial without the defendant's consent." (Larios, supra, 24 Cal.3d at pp. 331-332.)
However, in extreme circumstances, ineffective assistance of counsel may constitute legal necessity for a mistrial. (Carrillo, supra, 145 Cal.App.4th at p. 1525; People v. Manson (1976) 61 Cal.App.3d 102, 197, 202 [defense counsel disappeared during trial]; People v. McNally (1980) 107 Cal.App.3d 387, 393 [trial counsel belatedly discovered he had a prejudicial conflict of interest].)
Along those lines, defendant argues legal necessity for a mistrial existed here. He points to People v. Coleman (1992) 9 Cal.App.4th 493, 495 (Coleman), which he maintains is analogous. There, the defendant's counsel told the jury in opening statements, that the defendant had pointed a gun at the victim before the victim made a sudden move. (Id. at p. 495, fn. 1.) The defendant, however, had maintained he never pointed the gun at the victim. (Ibid.) The defendant moved for new counsel, arguing the jury would now perceive him as a liar if he testified. (Id. at p. 495.) At the same time, his counsel moved for a mistrial. (Ibid.) The trial court appointed new counsel but denied the mistrial motion. (Ibid.) The defendant's new counsel again moved for mistrial, arguing he could not avoid contradicting to the jury what prior counsel had said. (Ibid.) When the trial court asked defendant if he wanted a new jury, the defendant said he didn't understand. (Ibid.) The court, thereafter, denied the mistrial motion, reasoning the defendant had not waived his right against double jeopardy. (Ibid.) The court, however, struck the opening statement given by prior counsel. (Id. at pp. 495-496.)
The Coleman court reversed, concluding the opening statement undermined the defendant's credibility and created a conflict of interest. (Coleman, supra, 9 Cal.App.4th at p. 497) It explained that like in McNally, where a counsel-client conflict of interest was discovered mid-trial, the conflict created by the opening statement amounted to a legal necessity, and the defendant's consent for a new trial was unnecessary. (Id. at pp. 496-497.) The court reasoned that the prejudice to the defendant was incalculable and could not be cured by admonishing the jury to disregard the opening statement. (Id. at p. 497) "[T]he jury was understandably left with the impression that appellant had changed stories between defense counsel." (Ibid.)
Here, defendant argues a similar conflict affected his trial because he "literally switched his story when defense counsel first argued that the drug test results would be negative . . . ." He adds: "the far more damning and unavoidable structural effect here was that [his] trial counsel was then required to call his own criminalist expert witness, in a futile attempt to rehabilitate his own credibility with the jury . . . and this witness then agreed with the prosecution's own criminalist on nearly every point . . . thereby bolstering the prosecution's case against his own client." Citing Coleman, defendant adds that, "When counsel, even mistakenly, grossly misstates the evidence on a fundamental point of the defense, thereby precluding an effective defense, [a defendant] has been deprived of his right to counsel and his rights of due process, because the inefficacity of counsel has 'frustrated the realization of a fair trial.' " (Coleman, supra, 9 Cal.App.4th at p. 496)
We cannot agree that Coleman is analogous. The defendant's trial counsel in Coleman directly contradicted his client's explanation for the shooting, such that the defendant could not testify to his involvement without contradicting his attorney. Here, no such contradiction arose. Counsel represented in opening statement what an outside lab would say regarding something found in defendant's freezer. But there is no indication that representation contradicted what defendant would have testified to.
Moreover, any time counsel tells a jury what a witness is going to testify to, there is the risk the witness will say something different. Legal necessity for a mistrial does not automatically result when the testimony diverges from what trial counsel outlines in opening statements. Jurors are routinely instructed that what attorneys say in opening statements and closing arguments is not evidence, and the jury was so instructed here. (See CALCRIM Nos. 104, 222) Moreover, here, the impression ultimately left with the jury was precisely what happened: a lab test returned a false negative. If anything, in our view, counsel's credibility was bolstered by his display of candor. In short, nothing in the record gave rise to legal necessity.
Defendant also argues a mistrial should be granted if the trial court is informed of an alleged prejudicial error that cannot be cured by admonition. But the case he cites in support, People v. Harris (2013) 57 Cal.4th 804, 847-848 [mistrial motion properly denied where testifying officer violated court order not to testify to defendant calling the victim "bitch"], did not consider legal necessity, nor was there any indication the defendant withheld consent for a mistrial motion. Again, "even when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew . . . ." (Curry, supra, 2 Cal.3d at p. 717.) Here that appears to be precisely the case. And on appeal, defendant has failed to show that legal necessity required a mistrial. For these reasons, the contention fails.
We take no position on whether denial of the motion would have been proper had defendant consented to it.
II. Section 654
Defendant next contends his punishment for possessing methamphetamine for sale must be stayed under section 654 because insufficient evidence supported an implied finding that he harbored separate objectives in manufacturing methamphetamine and possessing methamphetamine for sale. The People respond that substantial evidence supports an implied finding that defendant harbored separate objectives. We agree with the People.
Though a person may be convicted of more than one crime for the same act, section 654 proscribes multiple punishments for the same act. (§§ 654, 954; People v. Correa (2012) 54 Cal.4th 331, 337 (Correa).) An " 'act' " can include a " ' "course of conduct." ' " (Correa, at p. 335.)
When a course of conduct causes multiple offenses — each capable of being independently committed — section 654's application turns on whether each conviction was based on a separate and divisible transaction. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether a course of conduct is divisible turns on the defendant's intent and objective. (Ibid.) "If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Correa, supra, 54 Cal.4th at pp. 335-336.) But if a defendant entertained multiple objectives — independent of and not merely incidental to each other — multiple punishment is permitted even if the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.)
A trial court's finding that a defendant held multiple criminal objectives will be upheld if supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Where, as here, the trial court makes no express section 654 findings, we consider whether substantial evidence supports an implied finding of a separate intent and objective. (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
Here, both parties cite to People v. Goodall (1982) 131 Cal.App.3d 129. Defendant maintains it is distinguishable. In Goodall, the defendants were convicted on three counts: (1) possessing certain ingredients with intent to manufacture PCP; (2) possessing PCP for sale; and (3) manufacturing PCP. (Id. at pp. 135-136.) In holding punishment for each count was proper, the court noted that one who sells only part of his inventory may be convicted and punished separately for the sale of that part and the possession for sale of the remainder. (Id. at p. 147) By analogy, a trial court could reasonably conclude the defendants "intended (1) to manufacture PCP; (2) to sell the PCP they had manufactured, if they could find a buyer; and (3) to manufacture more PCP with the ingredients not used up in step (1)." (Ibid.) The Goodall court also stated: "It would not be proper to subsume the manufacturing into the selling as merely incidental to a single objective of selling the ultimate product for profit." (Id. at pp. 147-148.) The court allowed however, that "[h]ad the trial court found that the manufacturing and possession counts were part of an indivisible course of conduct with a single objective, that determination could likewise be upheld." (Id. at p. 148.)
Defendant maintains Goodall is distinguishable because unlike there, his conviction for possession for sale of the 2.7 grams of methamphetamine in his garage was premised on the packaging, scoop and the methamphetamine manufacturing lab. Thus to be convicted of possession for sale, his objective must have been to sell the methamphetamine he was manufacturing in the garage. We cannot agree.
The officer who testified about the possession being for the purpose of sale stated his opinion defendant possessed methamphetamine for sale was based on "the presence of items we commonly see when we investigate a narcotic sales case; the presence of packaging material, the presence of scales, the presence of scoops . . . all the items you need to package and sell it are there, in addition to there being a suspected methamphetamine laboratory on the premises." (Italics added.) The fact that the presence of the methamphetamine lab added to the indicia commonly seen in establishing possession of methamphetamine for sale did not preclude a finding of separate objectives. As in Goodall, the trial court could have found defendant harbored the same intent in possessing and manufacturing methamphetamine. But absent that express finding we cannot say that substantial evidence could not support the opposite conclusion.
Like in Goodall, the trial court could have found separate intent in the manufacture and the sale of methamphetamine. Additionally, during the search, officers found used glass pipes, indicating personal use. Officers also found liquid in the freezer that tested positive for amphetamine and methamphetamine. Thus, the trial court could have also concluded defendant possessed the 2.7 grams of methamphetamine intending to sell it. He also was in the process of manufacturing more methamphetamine with the intent to sell and/or consume the new batch. Accordingly, separate intent with respect to possessing and manufacturing is supported by substantial evidence.
III. Dueñas
Defendant contends remand is required for an ability to pay hearing with respect to the fines and fees imposed at sentencing. He cites in support Dueñas, supra, 30 Cal.App.5th 1157, which held that due process requires the trial court to stay execution of restitution fines, as well as court operation and conviction assessments, until it has held a hearing and determined the defendant has the present ability to pay.
We join the courts concluding Dueñas was wrongly decided and hold that defendant was not entitled to an ability to pay hearing for the conviction and operation assessments. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.) We therefore reject the contention.
DISPOSITION
The judgment is affirmed.
/s/_________
MURRAY, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
HOCH, J.