Opinion
E063636
01-06-2017
THE PEOPLE, Plaintiff and Appellant, v. ARTHUR DEAN TURNER, Defendant and Appellant.
Michael A. Hestrin, District Attorney, Natalie M. Lough, Deputy District Attorney, for Plaintiff and Appellant. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF1302784 & RIF1401801) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed. Michael A. Hestrin, District Attorney, Natalie M. Lough, Deputy District Attorney, for Plaintiff and Appellant. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On July 24, 2013, in Riverside Superior Court case No. RIF1302784, a two-count felony complaint charged defendant and appellant Arthur Dean Turner with possession of methamphetamine with intent to sell on June 20, 2013, under Health and Safety Code section 11378 (count 1); and unlawful possession of ammunition under Penal Code section 30305, subdivision (a). The complaint also alleged that defendant had sustained four prison priors under Penal Code section 667.5, subdivision (b). On August 2, 2013, the People filed an amended complaint. The amended complaint declared that defendant was ineligible for drug rehabilitation under either Penal Code sections 1000 or 1201.1. Defendant entered not guilty pleas as to all charges and denied all prior convictions.
All statutory references are to the Penal Code unless otherwise indicated. --------
On May 2, 2014, in case No. RIF1401801, the People filed a one-count felony complaint against defendant. The complaint alleged that defendant possessed methamphetamine with intent to sell on February 21, 2014, under Health and Safety Code section 11378 (count 1). On May 19, 2014, defendant pled not guilty.
On December 8, 2014, the People filed an amended information, which consolidated the two complaints. The information charged defendant with violating Health and Safety Code section 11378 on June 20, 2013 (count 1); violating Penal Code section 30305, subdivision (a) (count 2); and violating Health and Safety Code section 11378 on February 21, 2014 (count 3). The information also alleged that defendant had sustained four prison priors under Penal Code section 667.5, subdivision (b). On February 18, 2015, a jury trial commenced on a consolidated amended information.
On February 24, 2015, the jury convicted defendant of possessing methamphetamine for sale under Health and Safety Code section 11378 (count 1); possessing ammunition under Penal Code section 30305 (count 2); and a lesser included offense of possessing methamphetamine under Health and Safety Code section 11377 (count 3).
On May 15, 2015, the trial court commenced a bench trial on defendant's priors. During the trial, defense counsel orally moved to dismiss the prior convictions alleged in the third and fourth prior offenses on the ground that they had been recharacterized as misdemeanor offenses under Proposition 47 on May 13, 2015. Hence, the offenses no longer qualified as prison priors. The trial court agreed with defendant and struck the two prison priors.
Thereafter, the court sentenced defendant to an aggregate term of three years eight months.
On May 22, 2015, defendant filed a timely notice of appeal. On July 19, 2015, the People filed a timely notice of appeal from the court's "unlawful sentence and dismissal orders."
B. FACTUAL HISTORY
1. COUNTS 1 AND 2: JUNE 20, 2013
A residence in Moreno Valley had been under surveillance by the Riverside County Sheriff's Department for narcotics activity. On June 20, 2013, Deputy Steven Leon observed a Hispanic man arrive at the house. The man met with defendant, whom the deputy recognized from a booking photo. Defendant was in the garage with the door open. The two men hung out in the driveway near the garage for a few minutes. The Hispanic man then left.
Deputy Leon did not observe any hand-to-hand exchange between defendant and the Hispanic man. The deputy, however, still believed that the interaction was consistent with a person selling methamphetamine from the house. Drug expert Deputy Russell Williams, on the other hand, opined that the person may have simply been a friend stopping by, and, overall, he did not believe that the short visit by a single individual alone was indicative of a drug sale and testified that what occurred was "probably not" a drug interaction.
A short time later, a Mercury Mountaineer pulled up to the house; a woman and a child got out. The woman was later identified as Tina James, and the SUV was registered to her. Deputy Leon and his team left to prepare for the service of a search warrant at the residence. About an hour later they returned to the house with the warrant, knocked on the door and announced their presence. When no one responded, they forced their way in. Defendant was no longer at the house.
There were three bedrooms. In the master bedroom, a deputy found defendant's California identification card, a health card with defendant's name on it and a medical marijuana recommendation card also bearing defendant's name. There were men's and women's clothing in the room. There were also documents with Tina James's name on them, leading the deputies to believe she lived there as well. On the top shelf of the bedroom closet, there was a man's dress sock, and inside, the deputies found 16 live .45-caliber rounds. In a bathroom close to the master bedroom, there were several prescription bottles with defendant's name on them.
The deputies also searched the garage; on a shelf, they found a WD-40 can with a hollow bottom used for concealing items. Inside, there was a plastic bag containing 14 small bindles of suspected methamphetamine, each weighing between 0.2 and 0.5 grams. A few feet away there was a locked toolbox, which Deputy Leon opened with a key that was hanging on the back wall. Inside, there was a bottle of Viagra with defendant's name on it, and small pieces of plastic used to make bindles, which the deputy believed were commonly used to package narcotics. There were also two working scales typically used to weigh narcotics for packaging and sale. There was no methamphetamine residue on the scales.
In separate areas of the garage, the deputies found a bag containing additional ammunition of varying caliber, a box containing 120 shotgun shells, and various documents bearing defendant's name, including an envelope with a 2002 W-2 form, a 2011 receipt for a driver's license and an incomplete application for an operating permit. The deputies did not find any drug paraphernalia or firearms anywhere in the house. Deputy Williams opined it was common to possess firearms and ammunition for protection where drugs were being sold.
A common dose of methamphetamine was 0.1 gram, although most drug users purchased a single baggie of 0.2 grams, which had a street value of $20. Deputy Leon opined that if a person opted to purchase more than 0.2 grams, he or she would simply purchase a larger bag containing a large amount of narcotics. In his opinion, possessing small individual bindles of methamphetamine, as the ones found in the garage, was consistent with sale of narcotics.
Criminalist Alina Melkomian analyzed the substance in only one of the 14 baggies, and confirmed it was in fact methamphetamine and weighed 0.255 grams. Melkomian could not determine whether the substances in the other 13 baggies were also methamphetamine based on appearance alone, although they were all white crystals.
2. COUNT 3: FEBRUARY 21, 2014
Approximately eight months later, on February 21, 2014, Deputy Leon and his team went to an alley in Moreno Valley looking for defendant. One of the deputies noticed the same white Mercury Mountaineer that had pulled up to the house back in June 2013. When Deputy Leon approached the alley, he saw defendant backing the SUV into a parking spot at one of the apartment buildings. The deputy directed defendant to step out and detained him pursuant to an arrest warrant.
Deputy Leon searched the SUV. Hidden behind the ashtray in front of the center console area, he found a plastic bag with a small candy container inside, as well as "a little bit" of marijuana and two bindles of usable quantity of suspected methamphetamine, each weighing 0.3 grams. The bindles were of the same size and were packaged in the same manner as the ones previously seized on June 20, 2013, from the garage at the home in Moreno Valley. After testing one of the baggies, criminalist Melkomian confirmed the substance was methamphetamine and weighed 0.224 grams.
Deputy Leon did not find any scales, guns, ammunition, or substantial amount of cash, which would typically indicate drug sales; nor did he find any drug paraphernalia. However, both Deputy Leon and Deputy Williams agreed that methamphetamine could be consumed by rolling up a piece of paper into a tube-shaped straw. Deputy Leon also agreed that a methamphetamine user would not necessarily carry an already rolled-up dollar bill. Deputy Williams similarly opined that the fact an individual did not have a straw on their person did not mean the person was not a drug user.
3. SUBSEQUENT INVESTIGATION
On March 2, 2014, while in custody in county jail, defendant made a telephone call. He spoke with a woman who called him "daddy" and another unidentified woman. During the conversation, defendant said he believed the police must have had an informant because "they went straight to the stuff" and found "enough stuff to make a case," but that they "didn't find my guns and they didn't find the other stuff [he] had." Defendant also said that he expected the police to accuse him of "still doin[g] the same thing," because they had later "caught up" with him and he "had some more stuff." Defendant further mentioned that a woman named "Nicki" owed him $80 and that he needed money placed on his books.
On March 9, 2014, defendant made another call and spoke with three women. He mentioned that "Olivia" might be the "snitch" and said that he suspected that the deputy who found the Viagra kept the pills for himself, because he was romantically involved with Olivia. Defendant also told one of the women that she, her mother and "Tina" were now in charge of the house and discussed the delivery of a package. He requested that a copy of his marijuana card be forwarded to him in jail because he said it had been suggested to defendant that he should "tell them that [he] was using drugs." Defendant also explained that he was being charged for the bullets he had in the sock, but not the shotgun shells, and asked that the bullets he still had be removed from the house.
Finally, on March 10, 2014, defendant called and spoke with another unidentified woman. He mentioned that Olivia was "one of the first" to come by the house and that he used to "take her shit." He said she was always calling the police and he believed she may have been the one informing the police about him because the police knew precisely where he had his "stash." Defendant told the woman that he should have never allowed anyone to see what he was doing and should have simply taken "it" to them down the street. He also complained that Olivia owed him $300 or $320. He said that he had "nobody out there to go put hands" on them, but that, once released, he would try to take his money from her.
The three calls were recorded and played for the jury.
4. EXPERT TESTIMONY
Deputy Williams explained the various terms used during the recorded jail calls. He testified "shit" referred to methamphetamine; "stash" meant drugs in the context of narcotics activity; "snitch" was a tattletale; "drug debt" was money owed a drug dealer.
Based on all the items recovered from the house, Deputy Williams opined that the person was selling drugs out of the garage (counts 1 & 2). With respect to the items subsequently found in the car (count 3) and taking into account the recorded jail calls, the deputy opined that while "one could say" that the drugs were possessed for sale, he "could see it going both ways." In fact, Deputy Williams believed it "could be a bit of a stretch" to conclude that the drugs in the car were being possessed for sale. Later, however, the deputy changed his testimony and stated that the recorded calls would in fact indicate "delivery or selling drugs."
The deputy further opined that if the same person was involved in both scenarios (counts 1 through 3), and the drugs found in the car were packaged in the same manner as the ones found in the garage, then, this would indicate the drugs in the car were possessed for purposes of delivery or sale.
5. DEFENSE
Defendant testified. In June 2013, defendant mostly lived in Menifee with his girlfriend, Beverly Karn, and her daughter. The house where the warrant was executed was a squatters' house occupied by two men and four women, including Olivia, who had a teenaged son and a five-year-old child. Defendant had been visiting that house twice a week since December 2012, and doing drugs there with others. He had been taking methamphetamine for six or seven months, and he also regularly smoked marijuana and drank alcohol. He had been a drug user since he was 14 years old.
Defendant did not keep any of his clothes at the home in Moreno Valley. On one occasion, when he had done some repairs on a car at the house, he had left behind his California identification and medical marijuana card on a coffee table. And, since he had been homeless before moving in with his girlfriend, he had instructed the Moreno Valley Hospital to send his prescriptions to the Moreno Valley house, including the Viagra pills found in the toolbox. He had placed the pills in the locked toolbox because Viagra was expensive and he did not want anyone taking them.
On the day the search warrant was executed, defendant had been in the garage working on a car for Olivia. The Hispanic man whom the deputies observed was a friend of Olivia's 19-year-old son. The man had come by asking for the son, wanting to ride skateboards and dirt bikes with him. A short time later, defendant left the house in the white SUV. Defendant denied that the young man was there to buy drugs from him or that he had sold the young man any drugs. While defendant brought drugs over to the house for personal use, he never stored them there. None of the narcotics or the scales found at the house were his, and defendant insisted he had not been aware of their presence.
Defendant explained that, during his third jail call, he was referring to his Viagra pills when speaking about the snitch who had seen where he had stashed his "shit." Defendant had never used the word "shit" when describing methamphetamine; his choice of word was "dope." Defendant also explained his many references to Olivia. For instance, he and Olivia had occasionally smoked marijuana, which is what he meant when he said he used to "take [her] shit" during the same call.
Defendant denied ever selling drugs to Olivia, although at times the two had shared their drugs. He also denied that Olivia or anyone else owed him a drug debt. Olivia owed him money for the car repairs, as did Nikki, whom defendant had helped with her bills. Defendant also denied that he implied physical violence when making the statement regarding people placing their hands on those who owed him money. Defendant testified that he was not a "very violent person."
Defendant also denied that he possessed any firearms of any kind. He explained that in his jail-call statement that the police had not found any guns, he was referring to the BB guns and paintball guns that were usually lying around the garage and other areas of the house. He had seen children playing with those guns, but they did not belong to him. He also explained that, during the second call, he was upset and simply relaying to his daughter that the police report had falsely stated that the bullets belonged to him. He denied that any of the ammunition or the socks were his.
Defendant admitted that the drugs found in the Mountaineer belonged to him. Olivia had previously seen him hide drugs in the same spot where the methamphetamine was found in the SUV. This was the reason he suspected that Olivia may have been an informant. Defendant denied that he was planning to sell the methamphetamine or that he was delivering the methamphetamine to anyone. He had purchased the drugs earlier that day and was planning on using the drugs later. Defendant did not provide the name of the person who had sold him the drugs because he feared retaliation.
Defendant admitted that he had a felony conviction for being a felon in possession of a firearm, and a felony conviction for receiving stolen property.
6. STIPULATION
The parties stipulated that defendant had previously been convicted of a felony, and that his felony conviction occurred prior to June 20, 2013.
DISCUSSION
A. DEFENDANT'S APPEAL
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
B. THE PEOPLE'S APPEAL
The People contend that "the trial court improperly dismissed [defendant's] prison priors for possession of a concentrated cannabis based on the fact that [defendant] had been granted Penal Code section 1170.18 relief on those convictions."
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47." (Id. at p. 1092.) "Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions 'designated as misdemeanors.' (§ 1170.18, subd. (f); see id. subds. (g)-(h).)" (Id. at p. 1093.) "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)
People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah) involved a similar direct attack on an enhancement, and the court held that the reduction of a prior felony to a misdemeanor pursuant to Proposition 47 precludes the trial court from relying upon it as the basis for imposing an enhancement under section 667.5, subdivision (b). We agree with its analysis, and conclude it supports the same result here.
As Abdallah, supra, 246 Cal.App.4th 736 pointed out, the California Supreme Court has set forth the elements required to qualify for the prison prior. Imposition of a sentence enhancement under section 667.5, subdivision (b), requires proof that the defendant: "(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (Id. at p. 742, quoting People v. Preston (2009) 176 Cal.App.4th 1109, 1115; see also People v. Tenner (1993) 6 Cal.4th 559, 563.) And as Abdallah concluded, the first of those required elements is eliminated when the defendant's prior conviction is redesignated as a misdemeanor. (Abdallah, at p. 746.)
In Abdallah, the court clarified and distinguished its reasoning from the California Supreme Court's opinion in People v. Park (2013) 56 Cal.4th 782 (Park). "'There is no dispute that, under the rule in [People v. Feyrer (2010) 48 Cal.4th 426 . . . and People v. Banks (1950) 53 Cal.2d 370 . . . , [the] defendant would be subject to the [section 667, subdivision (a)] enhancement [for a prior serous felony conviction] had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor.' (Park, supra, 56 Cal.4th at p. 802.)" (Abdallah, supra, 246 Cal.App.4th at p. 748, fn. 5, italics added.) In this case, defendant was convicted of the current crimes on February 24, 2015, and the trial court reduced his prior offenses as misdemeanors under Proposition 47 on May 13, 2015. Thereafter, defendant was sentenced on May 15, 2015. Therefore, under Park, supra, an argument can be made that, because defendant was convicted before his prior offenses were reduced to misdemeanors, the reduction should not apply retroactively. According to Abdallah, however, "[t]his argument fails to recognize that the applicability of the section 667, subdivision (a)(1), enhancement in Park turns on the status of the prior offense at the time of conviction; it imposes a five-year enhancement when a person 'convicted of a serious felony' has previously suffered a serious felony conviction. In contrast, the enhancement in this case, section 667.5, subdivision (b), depends on the status of the prior offense at the time of sentencing; it imposes a one-year enhancement when 'the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended.'" (Abdallah, at p. 749, fn. 8, italics added.) In this case, although defendant was convicted prior to his prior offenses being reduced to misdemeanors, he was sentenced after his offenses were reduced to misdemeanors.
Although Abdallah, supra, 245 Cal.App.4th 736 was decided on April 19, 2016, and modified May 10, 2016, the People did not address the case in its opening brief. The People, however, argue that that "the reduction of a felony to a misdemeanor under Penal Code section 1170.18, subdivision (k), does not apply retroactively, nor does it affect the imposition of the prior felony conviction as a sentencing enhancement under Penal Code section 667.5, subdivision (b)." The People argue "[t]he purpose of the prison prior enhancement is to punish individuals who have shown that they are 'hardened criminals' who are 'undeterred by the fear of prison.' [Citations omitted.] Indeed, '[r]ecidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent sentences.'"
The People's argument is inconsistent with the Supreme Court's statement in People v. Prather (1990) 50 Cal.3d 428, 440, that "667.5[, subdivision (b)] is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony's seriousness, at the prior prison term." (Italics added.) Here, the People fail to acknowledge Prather, and instead cite In re Preston (2009) 176 Cal.App.4th 1109, 1115, for the opposite point. And Preston quotes a more recent Supreme Court opinion—People v. Jones (1993) 5 Cal.4th 1142—for the proposition that "[t]he purpose of the section 667.5[, subdivision (b)] enhancement is 'to punish individuals' who have shown that they are "'hardened criminal[s] who [are] undeterred by the fear of prison."'" (Preston, at p. 1115.) However, the quoted language in Jones is actually taken from the Supreme Court's discussion of the underlying Court of Appeal opinion—reflecting a position the Supreme Court then deems "unpersuasive" because it is inconsistent with Prather. (Jones, at p. 1148.) Therefore, we adhere to Prather for the position that section 667.5, subdivision (b) "is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony's seriousness, at the prior prison term." (Prather, at p. 440.)
For the reasons set forth above, we, like Abdallah, hold that the reduction of the earlier convictions to misdemeanors prior to sentencing in the current matter precludes the use of those convictions to support such an enhancement. Therefore, the trial court did not err in striking defendant's two one-year prior prison term offenses pursuant to Proposition 47.
DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.