Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Darlene E. Schempp, Judge, Los Angeles County Super. Ct. No. LA051917.
Jeffrey A. Needelman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Juan Manuel Tapia-Huante was convicted of one count of sale of cocaine (Health & Saf. Code, § 11352, subd. (a)), one count of possession of cocaine base for sale (§ 11351.5), two counts of transporting methamphetamine (§ 11379, subd. (a)), two counts of possession of methamphetamine for sale (§ 11378), one count of possession of a controlled substance with a firearm (§ 11370.1, subd. (a)), one count of use of a false compartment to conceal controlled substances (§ 11366.8, subd. (a)), and two counts of child endangerment (Pen. Code, § 273a, subd. (b)). He was sentenced to a total of 11 years in prison.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Appellant attacks several of his convictions on appeal. He contends he is entitled to a new trial because the trial court denied his request for a continuance to retain new counsel after trial had begun. He claims the court committed prejudicial error by admitting a statement made by him before Miranda warnings were given. He argues that the child endangerment convictions and one of his methamphetamine possession convictions must be reversed because the trial court did not give the jury unanimity instructions as to those counts. And he argues that his conviction for use of a false compartment must be reversed because the false drink container in his car was not a “false compartment” within the meaning of section 11366.8.
Miranda v. Arizona (1966) 384 U.S. 436.
He also challenges several aspects of his sentence. He claims his concurrent sentence for methamphetamine possession and his consecutive sentence for false compartment use should have been stayed under Penal Code section 654. He claims his trial counsel was ineffective for failing to object to the trial court’s use of the same facts to impose the upper term for sale of cocaine and consecutive terms for methamphetamine possession and use of a false compartment. He argues that his upper term sentence is unconstitutional because a jury did not find the aggravating facts supporting it. He also argues that a jury was required to find facts related to his on-bail sentence enhancement, his punishment for multiple crimes under Penal Code section 654, and his consecutive sentences. Finally, he claims the trial court erred in calculating his custody credits.
We conclude that the trial court did not abuse its discretion in denying the motion to continue the trial because the motion was untimely. There was no Miranda violation because appellant’s statement fell within the public safety exception to Miranda. The trial court was not obliged to give unanimity instructions on its own motion because the jury could not reasonably have divided over which crimes appellant committed. We also conclude that appellant’s false drink container was not within the ambit of section 11366.8; we shall reverse the conviction for that count.
With regard to sentencing, evidence supports the trial court’s implicit finding that appellant had separate objectives in possessing and transporting methamphetamine. Appellant was denied his right to jury trial with respect to aggravating facts supporting his upper term sentence and the on-bail sentence enhancement. The upper term sentence must be remanded for resentencing and the on-bail sentence enhancement must be readjudicated. A jury was not required to make factual findings supporting appellant’s consecutive sentences, nor was it required to determine whether appellant had multiple objectives under Penal Code section 654. Because the claim of ineffective representation relies on his false compartment sentence, it is moot in light of our reversal of the conviction on that count. Appellant did not object to the trial court’s dual use of facts in sentencing, forfeiting that claim.
Finally, we agree that the trial court incorrectly calculated his custody credits, and shall order an appropriate correction.
FACTUAL AND PROCEDURAL HISTORY
On March 17, 2006, Los Angeles police were conducting surveillance of appellant at his apartment. They watched him leave the apartment in a car and drive to a nearby parking lot. He stopped next to a sport utility vehicle, exited his car, leaned into the sport utility vehicle for a few seconds, then got back into his car. Both vehicles drove away and were separately followed by police.
Uniformed police officers stopped appellant and searched his car. They recovered a plastic bindle of methamphetamine from the floor weighing 0.14 grams, a tinfoil package containing approximately $1,350 on the rear seat, and a cellular phone on the driver’s seat. Appellant also had $993 in his pants pocket. The officers arrested him.
Meanwhile, police had followed the sport utility vehicle to a parking structure, where they searched it. They recovered two glass pipes which appeared to be drug paraphernalia, a false breath mint canister containing a bag of rock cocaine weighing 0.37 grams and a bag of powder resembling cocaine underneath the floorboard.
Police returned to appellant’s apartment. Before they entered, one of the officers asked appellant if there were any people or weapons inside. Appellant replied that his wife and children were inside and he did not know of any weapons. Inside, the officers met a young woman, whom they estimated to be approximately 22 years old, and two girls they estimated to be approximately five and seven years old.
In the kitchen, officers discovered a bag containing methamphetamine weighing 15 grams. In the bedroom, there was a dresser with two small plastic bags on top, one holding 47 grams of a substance containing methamphetamine and the other holding 5.37 grams of cocaine. Also on the dresser was a digital scale with a powdery residue on top. Inside the dresser was a box containing the same type of sandwich bags used to contain the drugs the officers already had found; there also were seven more plastic bindles holding a total of 114.12 grams of a substance containing methamphetamine, a cigarette tin containing 2.5 grams of cocaine base, two more digital scales and a probation letter addressed to appellant. On a bookshelf and nightstand, officers found appellant’s passport, $2,047 in cash and another digital scale. On the floor next to the dresser, there was a basket containing 138 grams of marijuana. In the closet, the officers discovered ammunition and $26,050 in cash, mostly separated into tinfoil-wrapped $1,000 bundles.
The bedroom contained a queen-size bed and a bunk bed with children’s clothes and toys about it. Underneath the corner of the queen-size mattress, the officers discovered a loaded, operable .38-caliber handgun.
On March 27, 2006, appellant posted bail. On April 22, 2006, police officers again stopped him on the road and searched his vehicle. They discovered a false drink can on the floor of the car; hidden inside were four plastic bindles containing 2.56 grams of methamphetamine. Appellant had $1,358 in his pants, mostly in $5 and $20 denominations. As the officers were searching the car, appellant’s cellular phone rang. With appellant’s permission, an officer answered, and the person on the other end asked for “crystal.” This happened twice. The officers arrested appellant.
On July 3, 2006, an information was filed against appellant in Los Angeles Superior Court. Count 1 charged selling, transporting or offering to sell cocaine. (§ 11352, subd. (a).) Count 2 charged transporting methamphetamine. (§ 11379, subd. (a).) Count 3 charged possessing cocaine base for sale. (§11351.5.) Count 4 charged possessing methamphetamine for sale. (§ 11378.) Counts 5 and 6 charged cruelty to children by endangering their health, one count for each girl found in the apartment. (Pen. Code, § 273a, subd. (b).)
On September 18, 2006, the information was amended to allege four additional charges and two prior felony convictions. Count 7 added the charge of possession of a controlled substance with a firearm. (§ 11370.1, subd. (a).) The remaining three counts were based on appellant’s April 22, 2006 arrest. Count 8 charged transporting methamphetamine and count 9 charged possessing methamphetamine for sale. (§§ 11378, 11379, subd. (a).) Count 10 charged using a false compartment (the fake drink can) to conceal illegal drugs. (§ 11366.8, subd. (a).)
Appellant was convicted of all 10 offenses on September 21, 2006. On October 2, 2006, the trial court sentenced him to the upper term of five years for count 1, a consecutive sentence of one year (one-third the middle term) for count 2, a 16-month consecutive sentence (one-third the middle term) for count 3, a two-year middle term concurrent sentence for count 4, a stayed three-year middle term sentence for count 7, a consecutive one-year (one-third the middle term) sentence for count 8, a stayed two-year sentence for count 9 and a consecutive eight-month (one-third the middle term) sentence for count 10. The court found that appellant had 248 days of custody credits, and sentenced him to the 248 days he had served in jail for counts 5 and 6. The court also imposed a two-year sentence enhancement under Penal Code section 12022.1. The aggregate sentence was 11 years in prison. This appeal followed.
DISCUSSION
I
On the first day of trial, and after the jury had been selected, appellant requested a continuance to hire private counsel. His request was denied. Appellant claims the denial violated his rights to choice of counsel and due process under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15 of the California Constitution.
Trial courts must make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his or her choosing can be represented by that attorney. (People v. Courts (1985) 37 Cal.3d 784, 790.) However, a defendant’s right to retain the attorney of his or her choice may be limited when it would result in significant prejudice to the defendant or unreasonably disrupt the “‘orderly processes of justice.’” (People v. Ortiz (1990) 51 Cal.3d 975, 983; see also People v. Lara (2001) 86 Cal.App.4th 139, 153 (Lara) [“A court faced with a request to substitute retained counsel must balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution”].) The right to a continuance for the purpose of retaining counsel may be denied if the defendant has been “unjustifiably dilatory” or has arbitrarily waited until the time of trial to make the request. (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) We review a trial court’s denial of a continuance to retain new counsel for abuse of discretion. In deciding whether there was an abuse of discretion, we look to the circumstances of the case, particularly the reasons presented to the trial court at the time the request was made. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.)
In this case, appellant was represented by a deputy alternate public defender, David Cho, at his preliminary hearing on June 19, 2006. At appellant’s July 5, 2006 arraignment, trial was set for August 28, 2006. On August 18, 2006, the trial date was reset to September 6, 2006. Another deputy alternate public defender, Evan Dicker, replaced Cho on September 6. At that date, the trial was trailed to September 18, 2006. On September 18, 2006, a jury was empaneled and sworn. On September 19, 2006, the following exchange took place outside the hearing of the jury:
“MR. DICKER [counsel for appellant]: The first thing was, Your Honor, as I had indicated to the court and counsel earlier, my client is requesting that the trial be stopped so he may hire private counsel. This is his first request.
“THE COURT: That request is denied. We already have a jury selected and we will go forward with the jury trial unless he is interested in [an offered plea bargain].”
Appellant argues his case is analogous to Lara, supra, 86 Cal.App.4th 139. In that case, the defendant moved to discharge his private counsel on the first scheduled day of trial, before a jury had been selected. (Id. at p. 162.) The trial court mistakenly conducted a Marsden hearing when the defendant moved to discharge his private counsel, and denied the motion. (Lara, at p. 155.) The appellate court considered whether the denial was nonetheless appropriate because the motion was untimely. (Id. at pp. 155-156.) The court concluded that the motion was not necessarily untimely because the defendant expressed clear reasons for his dissatisfaction with counsel at the earliest opportunity, the prosecution had not raised timeliness as an issue in the trial court, and the trial court did not make any findings as to timeliness. (Id. at pp. 163-164.) The appellate court reversed, concluding that the trial court had applied the wrong test in reaching its decision. (Id. at p. 166.)
People v. Marsden (1970) 2 Cal.3d 118.
Lara is readily distinguishable. Here, the trial court did not hamper the exercise of its discretion by applying the wrong legal standard. Unlike Lara, a jury had already been empaneled to try appellant’s case, and that appears to have been an important factor in the trial court’s denial of the motion. Halting the trial at that point would almost certainly have resulted in a mistrial. Also, unlike the defendant in Lara, appellant provided the trial court with no reasons for his late request and made no showing that private counsel was ready to proceed or even had been identified.
Appellant argues the trial court did not balance appellant’s interest in new counsel against the timeliness of his motion because the court did not inquire into the reasons for the motion. But the trial court is not required to inquire into the reasons behind a defendant’s motion to retain new counsel when the defendant offers no explanation for the motion. While denial of a motion to discharge retained counsel cannot be supported under a mistakenly applied Marsden analysis, this is not such a case. The trial court did not mistakenly apply Marsden to appellant’s motion, and the court apparently based its decision that the motion was untimely on the fact that the jury had already been empaneled.
Appellant cites Lara, supra, 86 Cal.App.4th at page 162 for the proposition that a trial court must find an improper motive behind a request for a continuance before it denies the request. Lara imposes no such requirement; the Lara court merely observed that there was no evidence that the defendant in that case raised his complaint in an improper effort to delay the proceedings. (Ibid.)
The record shows appellant was represented by appointed counsel for three months before he moved for a continuance to retain private counsel. His motion came on the first day of trial after a jury had been empaneled and was waiting to try his case, and he presented no reasons for the late request. Under these circumstances, there appears to be no justification for appellant’s delay until the start of trial to make his motion, which would have disrupted the trial had it been granted. The trial court did not abuse its discretion in denying the motion.
II
After appellant was arrested on March 17, but before he was read his Miranda rights, a police officer asked him if there were any people or weapons inside his apartment. He replied that his wife and two children were home, and that he did not know of any weapons being there. At trial, the prosecution sought to introduce the statement to show that appellant had care and custody of his children. The court allowed the portion of the statement in which appellant said his family was home. Appellant later requested that the other portion of the statement be admitted, and the court agreed. The full statement was introduced at trial. Appellant argues that the introduction of the statement violated his right to counsel and his privilege against self-incrimination under Miranda.
A person facing custodial interrogation must be informed of his or her right to remain silent, that anything said will be used against him or her in court, that he or she has the right to have counsel present at the interrogation, and that counsel will be appointed if he or she is indigent. (Miranda, supra, 384 U.S. at pp. 467-474.) “Defendants who are in custody must be given Miranda warnings before police officers may interrogate them. [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 198.) A formal arrest constitutes custody for the purposes of Miranda. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “‘“Interrogation” consists of express questioning, or words or actions on the part of the police that “are reasonably likely to elicit an incriminating response from the suspect.”’ [Citations.]” (People v. Roldan (2005) 35 Cal.4th 646, 735.) Statements made during a custodial interrogation may not be introduced into evidence unless the defendant knowingly and intelligently waives his or her Miranda rights. (Ibid.) There is a “public safety” exception to the requirement for Miranda warnings in situations where the police ask questions necessary to secure their own safety or the safety of the public. (New York v. Quarles (1984) 467 U.S. 649, 655-656, 658-659.)
Appellant’s situation strongly resembles People v. Simpson (1998) 65 Cal.App.4th 854. In that case, police arrested the defendant outside his home, and were preparing to search the home pursuant to a warrant. Without advising the defendant of his Miranda rights, an officer asked him if there were any guns or weapons on the property. The defendant replied that he had a gun on the property, and that a child and the child’s nanny also were on the property. The statement was admissible under the public safety exception to the Miranda rule because the information elicited was related to an objectively reasonable need to protect police officers from danger, since narcotics searches are typically dangerous and the police did not know who or what to expect inside the home. (Id. at pp. 862-863.)
In this case, a police officer asked appellant an express question after he had been formally arrested. Thus, the question was a “custodial interrogation.” Nonetheless, the public safety exception to Miranda applies to appellant’s response. As in People v. Simpson, police were preparing to search a residence, the occupants and contents of which were unknown. Asking whether there were any people or weapons inside the residence was a direct way for the police to protect themselves from possible ambush. Because the statement falls within the public safety exception, it was admissible.
III
Appellant argues his conviction on count 10 should be reversed because the drink can found in his vehicle was not a “false compartment” within the meaning of section 11366.8, subdivision (a).
“Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or in the state prison.” (§ 11366.8, subd. (a).) “The term ‘false compartment’ means any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following: [¶] (1) False, altered, or modified fuel tanks. [¶] (2) Original factory equipment of a vehicle that is modified, altered, or changed. [¶] (3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle.” (§11366.8, subd. (d).)
Appellant does not deny that he possessed or controlled the fake can with the intent to conceal a controlled substance. The only question is whether the can was a “false compartment” within the ambit of section 11366.8, subdivision (d). We have found only one published case interpreting section 11366.8, People v. Gonzalez (2004) 116 Cal.App.4th 1405. That case does not bear on the question before us because it does not involve a loose container.
The Supreme Court granted review in a second case interpreting section 11366.8, People v. Arias (2007) 153 Cal.App.4th 848, review granted October 24, 2007, S155571. A third case, People v. Russell (2000) 81 Cal.App.4th 96, 101, briefly mentions a “locked non-factory-manufactured compartment between the rear seat and trunk wall” as the basis for an arrest under section 11366.8.
“‘When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.”’ [Citation.] ‘[W]e begin with the words of a statute and give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.] If, however, the language supports more than one reasonable construction, we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.)
Appellant’s fake can is a “container . . . intended for use . . . to conceal, hide, or otherwise prevent discovery of [a] controlled substance within . . . a vehicle,” but it is not a “compartment.” (§ 11366.8, subd. (d).) It is unlike the three examples given in subdivision (d)(1)-(3): “[f]alse, altered, or modified fuel tanks,” “[o]riginal factory equipment of a vehicle that is modified, altered, or changed,” and “[c]ompartment[s], space[s], or box[es] that [are] added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle.” Each of these is an example of a compartment that is part of a vehicle. Although section 11366.8, subdivision (d) states that the definition of a “false compartment” is not limited to these examples, the examples it recites suggest that a “false compartment” is a structural component of the vehicle rather than a loose container that is merely placed inside a vehicle.
This comports with the ordinary meaning of the word “compartment”: a division of space within a larger area or structure, not a separate, unattached object. A compartment is “1. One of the parts or spaces into which an area is subdivided. 2. A separate room, section, or chamber: a storage compartment.” (American Heritage Dict. (2d college ed. 1976) p. 300.) The plain meaning of the term “compartment,” along with the statutory examples, leads to the conclusion that section 11366.8 does not include loose containers.
The legislative history of section 11366.8 also supports this interpretation. The Senate Judiciary Committee analysis of the purpose of the bill predominantly discusses auto shops that manufacture and install secret compartments for the purpose of smuggling illegal drugs. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1760 (1993-1994 Reg. Sess.) as amended June 29, 1993, p. 2.) This suggests that section 11366.8 was primarily aimed at hiding illegal drugs in false compartments installed in vehicles.
It is not reasonable to read section 11366.8, subdivision (d) to include loose containers, because a “container . . . intended for use . . . to conceal, hide, or otherwise prevent discovery of [a] controlled substance within . . . a vehicle” would also include items such as purses and backpacks which contain drugs. Such a literal reading of subdivision (d) implicates a “false compartment” offense in virtually every situation in which drugs are found in a vehicle in anything other than plain view.
To the extent any residual ambiguity about the term can be found, a penal statute should not be stretched in order to convict appellant. (People v. Avery (2002) 27 Cal.4th 49, 58.) Accordingly, we conclude that appellant’s conviction under section 11366.8 should be reversed. Because we reverse appellant’s conviction on count 10, we do not reach the sentencing issues appellant raised regarding that count.
IV
Appellant argues that his conviction on count 4 for violation of section 11378 must be reversed because the trial court did not, on its own motion, instruct that the jury must be unanimous as to which parcel of methamphetamine was intended for sale.
Section 11378 provides in relevant part: “every person who possesses for sale any controlled substance . . . shall be punished by imprisonment in the state prison.”
In order to return a guilty verdict, a jury must unanimously agree that the defendant is guilty of a specific crime. (People v. Benavides (2005) 35 Cal.4th 69, 101.) This rule guards against the possibility that a jury will amalgamate evidence of multiple crimes not individually proven beyond a reasonable doubt “‘in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) But where multiple legal theories may support the conclusion that a defendant committed a specific crime, a jury does not need to unanimously base its verdict on a particular theory. (Ibid.) Thus, “[i]n deciding whether to give the [unanimity] instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Id. at p. 1135.)
In this case, police officers found parcels of methamphetamine in appellant’s vehicle, inside a kitchen cabinet in his apartment and in a bedroom dresser in his apartment. Appellant argues that each parcel was evidence of a separate act of possession with intent to sell, and that the trial court was therefore obligated to give a unanimity instruction as to that charge. Under People v. Russo, the relevant inquiry is whether appellant could be guilty of two or more discrete crimes, not whether appellant committed two or more discrete acts. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) It would make no sense to say appellant could be found guilty of three crimes if he kept his methamphetamine in three smaller parcels at his residence but he could only be found guilty of one crime if he kept all of them in a single parcel. Since appellant could only be guilty of one crime regardless of how many times he subdivided his methamphetamine, a unanimity instruction as to each individual parcel was unnecessary. (People v. Russo, supra, 25 Cal.4th at p. 1135.)
The cases appellant cites as analogous do not support a unanimity instruction in these circumstances. In People v. Castaneda (1997) 55 Cal.App.4th 1067, the defendant was convicted of possession of a controlled substance. Police found heroin on a television set in the residence where the defendant was arrested, and also in his pants pocket when he was later searched at the jail. The defendant claimed that the heroin on the television belonged to his son, and that the heroin in his pocket was planted by police. The court held the trial court should have given a unanimity instruction on its own motion because the two acts of possession were not identical and because the defendant offered a different defense to each one. (Id. at p. 1071.) Without a unanimity instruction under those circumstances, the jury could have convicted the defendant without unanimously agreeing that he possessed either parcel of heroin. (Ibid.)
In People v. Crawford (1982) 131 Cal.App.3d 591, the defendant was convicted of possession of a firearm by an ex-felon. Police found four handguns in different places in the apartment where the defendant was arrested. One was in a holster hanging from defendant’s bed, and he denied knowledge of its existence; another was in the closet, and his girlfriend testified that it was hers; one was underneath the mattress in an upstairs bedroom where another person slept; and one was in a nightstand drawer next to that mattress. In those circumstances, the trial court should have given a unanimity instruction on its own motion because the jurors could have convicted the defendant without unanimously agreeing that any of the four guns belonged to him. (Id. at pp. 596, 598.)
In this case, unlike People v. Crawford and People v. Castaneda, it was undisputed that appellant possessed all of the methamphetamine the police recovered. His argument was that the police experts who concluded that he intended to sell his drugs were biased, not that the drugs did not belong to him. There was no danger that the jury could have convicted him without unanimously agreeing that he possessed at least one parcel of methamphetamine.
Moreover, the prosecution did not argue appellant intended to sell the methamphetamine based only on the quantity recovered at one location. Instead, the prosecution argued that appellant intended to sell his methamphetamine based on a variety of circumstantial evidence, including the recovery of scales, a firearm and large amounts of cash from his apartment, the cell phone, the different types of drugs recovered from his apartment in large quantities, the manner in which the drugs were packaged and the fact that appellant did not appear to be intoxicated when he was arrested. While different jurors may have inferred intent to sell from different factors, this would only constitute differing theories of guilt rather than differing crimes. (See People v. Russo, supra, 25 Cal.4th at p. 1135.)
Appellant also argues that his child endangerment convictions on counts 5 and 6 must be reversed because the trial court did not instruct the jury that it must be unanimous as to whether its verdict was based on narcotics or a loaded gun, since both were found at his apartment within reach of his two children. He argues that leaving the narcotics near the children and leaving the gun near the children were two different acts, hence a unanimity instruction was required. Again, the test is not whether appellant committed two or more discrete acts but whether appellant could be guilty of two or more discrete crimes. (People v. Sanchez, supra, 94 Cal.App.4th at p. 631.)
Penal Code section 273a, subdivision (b) provides in relevant part: “[a]ny person who . . . having the care or custody of any child . . . willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.”
Appellant could not have been charged with multiple counts of child endangerment merely because both the drugs and the gun endangered his children. Instead, the drugs and the gun constituted different ways he could be guilty of a single crime. In this situation, the jurors were not required to agree on whether the drugs, or the gun, or both supported a guilty verdict, in the same way that jurors are not required to agree on whether premeditation or felony-murder supports a murder conviction. (See People v. Russo, supra, 25 Cal.App.4th at pp. 1132-1133.) The court was not required to give a unanimity instruction as to counts 5 and 6.
Appellant was charged with two counts of child endangerment because there were two victims, not because there were two theories about how the victims were endangered.
V
The trial court sentenced appellant to a two-year concurrent term for count 4, possession of methamphetamine with intent to sell. The court also sentenced appellant to a one-year consecutive term for count 2, transportation of methamphetamine. Appellant argues the trial court thereby punished him twice for the same offense, and that Penal Code section 654 requires his sentence for count 4 to be stayed rather than imposed concurrently.
“‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. 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.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) “The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
In this case, there were several bags of methamphetamine and other illegal drugs in appellant’s apartment, along with scales, thousands of dollars in cash and a gun. Police observed appellant leave his apartment in his vehicle and drive to a nearby parking lot, where he conducted a drug deal with a person in another car. When police arrested appellant, they discovered a bag of methamphetamine in his car along with over a thousand dollars wrapped in foil and nearly a thousand more dollars in his pants pocket.
Viewed in the light most favorable to the judgment, this evidence supports the implied finding that the methamphetamine found in appellant’s car was taken from his apartment, which served as a warehouse for his drug sales. Under these circumstances, appellant’s preexisting, ongoing objective in maintaining his apartment as a drug warehouse was separate from his objective in transporting some of those drugs to a different location at a different time. Thus, Penal Code section 654 does not require that his sentence for count 4 be stayed.
VI
Appellant claims his trial counsel was ineffective for failing to object to the trial court’s use of the same facts to impose the upper term for count 1 and consecutive terms for counts 8 and 10. “To make a successful claim of ineffective assistance of counsel, the defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel’s failings the result would have been more favorable. [Citations.]” (People v. Bell (1989) 49 Cal.3d 502, 546.)
This claim is moot with regard to the false compartment conviction (count 10) since we are reversing that conviction. With regard to the remaining counts, the claim lacks merit because the court did not use the same facts to impose the high term on count 1 and a consecutive sentence on count 8. The court imposed the high term for count 1 because the crime involved a large amount of contraband and planning, sophistication or professionalism. The court imposed a consecutive sentence for count 8 because that crime occurred on a different date from count 1, appellant committed it while he was on parole and out on bail, and his prior performance on parole was unsatisfactory. Because an objection to the consecutive sentence for count 8 would have been futile on these grounds, appellant’s trial counsel was not required to make the objection. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).)
VII
a. Application of 2007 Amendments to Penal Code section 1170, subdivision (b)
Appellant argues that under the recent United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), his sentence to the upper term on count 1 under California’s determinate sentencing law (DSL) violates the Sixth and Fourteenth Amendments to the United States Constitution.
We review this case in light of the California Supreme Court’s recent decision in Sandoval. In that case, none of the factors the trial court found to justify defendant’s upper term sentence could be properly found by a court under Cunningham, so the Sandoval court reversed the defendant’s sentence and remanded her case for resentencing. (Sandoval, supra, 41 Cal.4th at pp. 837-838, 843.) While the decision in Sandoval was pending, the California Legislature amended the DSL to comply with Cunningham and the Judicial Council amended the sentencing rules to implement the Legislature’s amendment of the DSL. The Legislature amended Penal Code section 1170, subdivision (b) to direct the trial court to impose the most “appropriate” term of the three provided and to always give reasons for doing so; formerly, the trial court was to impose the middle term in the absence of aggravating or mitigating factors, and it was only required to give reasons for imposing the upper or lower term. (Stats 2007, ch. 3, § 2.) Exercising its inherent authority, the Sandoval court directed that cases remanded for resentencing due to Cunningham error should proceed under the reformed DSL. (Sandoval, supra, 41 Cal.4th at pp. 845-846, 849-852.)
Penal Code section 1170.3 was also amended to direct the Judicial Council to adopt rules reflecting the changes to Penal Code section 1170, subdivision (b). (Stats 2007, ch. 3, § 3.) The Judicial Council did so on May 23, 2007.
In this case, the trial court cited two factors for its decision to sentence appellant to the upper term for count 1: the crime involved a “large quantity of contraband” and demonstrated “planning, sophistication, or professionalism.” (Cal. Rules of Court, rule 4.421(a)(8), (10)). The court did not base imposition of the upper term on a finding of recidivism, and appellant admitted neither of these facts. The imposition of the upper term for count 1 therefore violated Cunningham. (Sandoval, supra, 41 Cal.4th at pp. 837-838.)
Cunningham error is subject to harmless error analysis. (Sandoval, supra, 41 Cal.4th at pp. 837-837; Chapman v. California (1967) 386 U.S. 18.) “[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, 41 Cal.4th at p. 838.)
As the Sandoval court recognized, this is a problematic analysis. The sentencing rules were drafted to guide experienced trial judges in the exercise of their discretion, and are framed in a more subjective and open-ended manner than typical jury instructions. (Sandoval, supra, 41 Cal.4that p. 840.) The factors cited by the trial court are representative: the crime involved a “large” amount of contraband and “planning, sophistication, or professionalism.” (Cal. Rules of Court, rule 4.421(a)(8), (10).) Appellant also did not have the same incentive and opportunity to dispute these facts that he would have had if a jury were deciding them. (See Sandoval, at pp.839-840.) For these reasons, we are not convinced beyond a reasonable doubt that the jury would also have found these aggravating facts true. Appellant’s upper term sentence for count 1 must be reversed and the case remanded for resentencing under Sandoval.
Appellant claims in his reply brief that the double jeopardy clause of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution preclude consideration of aggravating factors on remand. The “now-familiar” rule is that “[J]eopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn . . . .” (Curry v. Superior Court (1970) 2 Cal.3d 707, 712.)
Remanding appellant’s case for resentencing will not place him in jeopardy again because, under Sandoval, appellant’s sentence will be remanded to the trial court for the exercise of its discretion, not to a jury for a trial. (Sandoval, supra, 41 Cal.4th at pp. 846-848.) Thus, appellant’s former jeopardy defense lacks merit.
We also note that the double jeopardy clauses of the United States and California Constitutions do not apply to sentencing proceedings in noncapital cases. (People v. Monge (1997) 16 Cal.4th 826, 829, 843-845, affd. sub nom. Monge v. California (1998) 524 U.S. 721, 734.)
b. Jury Findings as to Appellant’s On-Bail Status
On February 19, 2007, we requested additional briefing from the parties on whether the trial court properly took judicial notice of the fact that appellant was on bail when he committed the April 22, 2006 offenses and, if so, whether the trial court could properly impose a consecutive sentence based on that judicially-noticed fact. We have read and considered their responses on this issue. Both parties agree that the trial court erred in this regard.
Appellant received a two-year sentence enhancement under Penal Code section 12022.1, subdivision (b), because the trial court found that he committed a crime while on bail. He claims that under Blakely v. Washington (2004) 542 U.S. 296, only a jury was permitted to find that he was on bail because that is a fact that enhanced his sentence beyond the statutory maximum he could otherwise receive. We do not reach this issue because we conclude the trial court’s act violated state sentencing law.
“The enhancement allegation provided in [Penal Code section 12022.1,] subdivision (b) . . . shall be proved as provided by law.” (Pen. Code, § 12022.1, subd. (c).) “All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” (Pen. Code, § 1170.1, subd. (e).) “Enhancements, i.e., punishment allegations, must be alleged and proved to a jury, unless a jury is waived. [Citations.]” (People v. Esquibel (1992) 3 Cal.App.4th 850, 858.)
The trial court could not impose a sentence enhancement under Penal Code section 12022.1 without finding that appellant was on bail when he committed the offenses in counts 8 through 10. No evidence bearing on that fact was before the jury during trial, and appellant did not admit it. Instead, the trial court took judicial notice of appellant’s on-bail status after reviewing the court file. The trial court’s imposition of a sentence enhancement based on a fact not found by the jury or admitted by appellant violated Penal Code section 1170.1, subdivision (e).
Failure to comply with state sentencing law is subject to harmless error review under the Watson standard. (People v. Epps (2001) 25 Cal.4th 19, 29; see People v. Tillotson (2007) 157 Cal.App.4th 517, 545 [failure to state reasons for imposing consecutive sentences under Penal Code section 12022.1 reviewed for reasonable probability defendant would have received more favorable sentence absent error].) In this case, it is reasonably probable appellant would have received a more favorable sentence had the error not occurred because no evidence tending to prove appellant’s on-bail status was admitted during trial. Appellant’s Penal Code section 12022.1 sentence enhancement must be reversed. On remand, the People shall have an opportunity to retry the on-bail allegation. (People v. Monge, supra, 16 Cal.4th at p. 845.)
People v. Watson (1956) 46 Cal.2d 818, 836.
c. Jury Findings as to Other Sentencing Factors
Appellant claims that Cunningham requires a jury to determine whether he has committed multiple offenses under Penal Code section 654. He argues that there is an implicit statutory maximum sentence in Penal Code section 654 because the statute forbids punishment for more than one offense arising from the same act or omission. But our Supreme Court has already rejected this argument. (People v. Black (2005) 35 Cal.4th 1238, 1264, overruled on other grounds in Cunningham v. California, supra, 127 S.Ct. 856.) We may not say differently. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant argues that Cunningham requires a jury to make the factual findings supporting his consecutive sentences for counts 2, 3 and 8, although he acknowledges that People v. Black (2007) 41 Cal.4th 799, 821, 823 (Black II) expressly holds otherwise. He also argues that Sandoval and the Legislature’s modification to the DSL are unconstitutional and that his sentence may be no greater than the midterm on remand. As he recognizes, we are obligated to follow our Supreme Court’s direction in these matters. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
VIII
Appellant claims the trial court imposed a consecutive sentence for count 2 because it erroneously found that he was on bail when he committed that offense. He also argues that the court impermissibly used that finding both to impose a consecutive sentence for count 8 and a two-year sentence enhancement under Penal Code section 12022.1. He was not, in fact, on bail when he committed the offense in count 2. However, his only argument to the trial court about his on-bail status was that Cunningham required that it be found by a jury. Appellant forfeited the instant claims by not raising them with the trial court at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353.) Our Supreme Court has explicitly said that the forfeiture doctrine applies to sentencing errors in “cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor . . . .” (Ibid.)
In any event, the error was harmless because the trial court gave additional reasons for the consecutive sentences for counts 2 and 8. “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 492.)
In this case, the trial court cited the fact that count 2 involved a different type of drug from the other counts as another reason for imposing a consecutive sentence. This fact tends to show that the crime involved was predominantly independent of the other crimes. (Cal. Rules of Court, rule 4.425(a)(1).) The trial court cited three additional reasons for imposing a consecutive sentence for count 8: the crime was committed on a different date, appellant committed it while he was on parole and his prior performance on parole was unsatisfactory. (Cal. Rules of Court, rules 4.425(a)(3), (b), 4.421(b)(4), (5).) The court noted no factors in mitigation for either count. It is reasonably probable that the trial court would have imposed the same sentence had it known it could not rely on appellant’s on-bail status in doing so.
IX
Finally, appellant and respondent agree that the trial court incorrectly calculated appellant’s custody credits. Both parties agree that appellant spent 171 days in presentence custody, and the record confirms this. Appellant was also entitled to 84 days of conduct credits, for a total of 255 days of presentence credits. (Pen. Code, § 4019; People v. King (1992) 3 Cal.App.4th 882, 886.)
DISPOSITION
We affirm appellant’s convictions and sentences for counts 2, 3, 4, 5, 6, 7, 8 and 9. We reverse appellant’s conviction for count 10. We reverse appellant’s sentence for count 1 and his Penal Code section 12022.1 sentence enhancement and remand the case for new sentencing proceedings consistent with this opinion. On remand, the trial court shall amend the abstract of judgment to reflect that appellant has earned 255 days of presentence custody credits.
We concur: MANELLA, J., SUZUKAWA, J.