Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA071793 Steven R. Sicklen, Judge.
Ann Krausz, 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, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Defendant and appellant Kevin Leon Bowden was convicted of one count of possession of cocaine, one count of possession of cocaine for sale, and one count of possession of a firearm by a felon. He appeals the judgment on three grounds. First, appellant contends that the trial court erroneously permitted a prosecution criminalist to testify that the substance seized from him after a traffic stop was cocaine even though the criminalist did not personally test the substance. Appellant argues that by allowing the criminalist to testify instead of the person who actually tested the substance, the trial court violated his Sixth Amendment right to confront and cross-examine the witnesses against him. We reject this argument because even assuming appellant’s federal constitutional rights were violated the error was harmless beyond a reasonable doubt.
Appellant also contends that the trial court improperly concluded that the imposition of a 4-year sentence enhancement under Penal Code section 12022, subdivision (c) was mandatory and therefore failed to exercise sound and informed discretion. Our review of the record, however, does not support appellant’s contention that the trial court was unaware of its discretion, in an unusual case where the interests of justice would be best served, to strike the section 12022, subdivision (c) enhancement.
Unless otherwise stated, all future statutory references are to the Penal Code.
Finally, appellant argues that the trial court erroneously failed to stay the execution of the sentence on count 3 pursuant to section 654. For reasons we shall explain, we conclude that the trial court was not required to stay the sentence for count 3. The judgment therefore is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. May 17, 2008, Incident
At about 11:00 p.m. on May 17, 2008, Deputy Sheriff Alfonso Bertieri observed appellant drive a vehicle 55 miles per hour in a residential neighborhood in Los Angeles. The officer stopped appellant for driving faster than the speed limit. Appellant’s girlfriend, Charlotte Davis, was in the front passenger’s seat.
Appellant, who was wearing an oversized t-shirt and baggy pants, exited his car after he was stopped. When Bertieri patted appellant for weapons, he found an object protruding from appellant’s buttocks area. In response to Bertieri’s inquiry regarding the object, appellant stated that it was two grams of cocaine. Bertieri then photographed the off-white, rock-like substance and booked it into evidence.
Bertieri also found $343 cash in small denominations and a cell phone on appellant’s person. Appellant did not have any drug paraphernalia in the vehicle and, according to Bertieri, did not appear to be a chronic cocaine user or under the influence of cocaine.
2. May 20, 2008, Incident
At about 6:30 a.m. on May 20, 2008, Deputy Sheriff Ericka Gooseberry and Deputy Sheriff Julio Saldana entered a home at 1615 106th street in Los Angeles. The officers were conducting an investigation of an assault that was unrelated to appellant. When they entered a bedroom, they found appellant and Charlotte Davis lying on the floor on some cushions. A loaded semi-automatic rifle was in “reaching distance”-about a foot away-from appellant.
Gooseberry and Saldana recovered from appellant’s person a sandwich bag containing 29 off-white, rock-like substances resembling rock cocaine, 18 of which were individually wrapped in plastic. They also recovered from appellant $260 in small denominations and two cell phones. There was no drug paraphernalia in the room and, according to Gooseberry and Saldana, appellant did not appear to be a chronic cocaine user or under the influence of cocaine.
3. The Information
On October 16, 2008, an information was filed by the People against appellant. Appellant was charged with three counts: (1) possession for sale of cocaine base on May 17, 2008 (Health & Saf. Code, § 11351.5), (2) possession for sale of cocaine base on May 20, 2008 (Health and Saf. Code, § 11351.5), and (3) possession of a firearm by a felon (§12021, subdivision (a)(1)).
The information also alleged that defendant should receive sentence enhancements pursuant to the following special allegations. In the commission of count 2, appellant personally used a firearm within the meaning of section 12022, subdivision (c). As to all three counts, pursuant to the Three Strike laws (§ 1170.12, subdivisions (a) through (d), § 667, subdivisions (b) through (i)), appellant suffered two prior convictions of serious or violent felonies or juvenile adjudications, namely on August 20, 1985, appellant was convicted of burglary (§ 459), and on January 24, 1992, appellant was convicted of voluntary manslaughter (§ 192, subd. (a)) by personally using a firearm (§ 12022.5).
As to counts 1 and 2, pursuant to Health and Safety Code section 11370.2, subdivision (a), appellant was previously convicted of violating drug laws. Specifically, on December 24, 1987, appellant was convicted of transporting a controlled substance for sale (Health & Saf. Code, § 11352), and on April 1, 2008, appellant was convicted of possession for sale of a controlled substance (Health & Saf. Code, § 11351).
4. The Trial and Verdict
At trial, the People presented the testimony of police officers Bertieri, Gooseberry and Saldana regarding the events of May 17 and 20, 2008. An expert witness also testified for the prosecution that, in light of the all of the circumstances, it was his opinion the cocaine found on appellant on May 17 and 20, 2008, was for sale. Finally, the People presented the testimony of criminalist Michael Vanesian. Vanesian testified that he analyzed the white substance found on appellant on May 20, 2008, and determined it was base cocaine. He also testified regarding the notes of criminalist Michelle Lepisto, who had retired by the date of the trial. Vanesian stated that Lepisto’s notes indicated she tested the white substance found on appellant on May 17, 2008, and determined it was base cocaine. Appellant did not object to Vanesian’s testimony.
Appellant’s counsel conceded in his opening statement that appellant possessed cocaine on May 17 and May 20, 2008, for his personal use. But defense counsel argued that the evidence would show that appellant never intended to sell the cocaine, and that appellant never possessed a gun.
For example, appellant’s counsel stated: “You’re going to have to decide with respect to the cocaine on May 17th, as well as May 20th, did he [appellant] possess it with the intent to sell it? And I expect that the evidence will show that he did not possess it with the intent to sell it. He possessed it for his own personal use. He never intended to sell it, and he never possessed the gun.” (Italics added.)
Appellant’s principal witness was his girlfriend Charlotte Davis. Davis testified that on May 17, 2008, appellant was continuously smoking cocaine, and that about 10 minutes before appellant was stopped by the police he had purchased cocaine. She further testified that when appellant was stopped by the police he was rushing back to a motel to smoke the cocaine he had just purchased. Davis stated that she did not see appellant selling cocaine during this time period.
With respect to May 20, 2008, Davis testified that appellant had been smoking cocaine before she and appellant fell asleep at a friend’s house. Davis also stated there was no rifle in the room in which the police found appellant and Davis lying down.
In defense counsel’s closing argument, he again conceded appellant possessed cocaine, but argued appellant did not intend to sell it. For example, appellant’s attorney stated: “As to count 1 and 2, you [the jury] have to decide whether he [appellant] had the intent to sell the narcotics. You don’t have to get bogged down with whether he possessed them. It’s obvious he possessed them. Or whether he knew they were narcotics. It’s obvious. [¶] The issue is did he intend to sell?”
On May 18, 2009, the jury returned a verdict. As to count 1, appellant was found guilty of the lesser offense of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), but not guilty of possession for sale of cocaine (Health & Saf. Code, § 11351.5) on May 17, 2008. With respect to counts 2 and 3, appellant was found guilty as charged. The jury also found the special allegation that appellant was armed with a firearm in the commission of count 2 to be true.
5. Appellant’s Sentence
On September 18, 2009, the trial court held a sentencing hearing. At that hearing defendant waived a court trial on the issue of his prior convictions and the court found the allegations in the information regarding those convictions to be true. The court, however, pursuant to appellant’s motion, struck appellant’s 1985 conviction for burglary as a strike prior for purposes of the Three Strikes law. Appellant was sentenced to a total of 11 years 4 months in state prison.
On September 30, 2009, the trial court held another sentencing hearing. The court again sentenced appellant to 11 years 4 months in state prison but arrived at that total in a different way than it did on September 18, 2009. With respect to count 2, the base count, the court selected the low term of 3 years, plus 7 years of enhancements, for a total of 10 years. The enhancements consisted of 3 years for a second strike under the Three Strikes law, and 4 years for being personally armed with a firearm in the commission of count 2, pursuant to section 12022, subdivision (c). As to count 1, the trial court selected one-third of the mid-term of 24 months, which was 8 months, plus 8 months pursuant to the Three Strikes law, for a total of 16 months in state prison to run consecutively with count 2. Finally, as to count 3, the trial court selected the mid-term of 2 years, to run concurrently with count 2. This appeal followed.
On September 18, 2009, appellant filed a notice of appeal from the judgment entered on that day. We shall treat the notice as filed immediately after the rendition of the judgment on September 30, 2009. (Cal. Rules of Court, rule 8.308(c).)
DISCUSSION
1. Even Assuming Vanesian’s Testimony Violated Appellant’s Sixth Amendment Rights, the Error Was Harmless and Not Ground for Reversal of the Judgment
“The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, [citation], provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’ ” (Melendez-Diaz v. Massachusetts (2009) __ U.S. __ [129 S.Ct. 2527, 2531] (Melendez-Diaz).) In Crawford v. Washington (2004) 541 U.S. 36, 51 (Crawford), the United States Supreme Court held that the Confrontation Clause guarantees a defendant’s right to confront those “who ‘bear witness’ ” against him. “A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” (Melendez-Diaz, at p. 2531, citing Crawford, at p. 54.)
Appellant argues that Vanesian’s testimony regarding Lepisto’s notes were impermissible under Crawford and Melendez-Diaz because appellant did not have an opportunity to cross-examine Lepisto. He further contends that he did not waive his Sixth Amendment challenge to Vanesian’s testimony by failing to assert an objection because an objection would have been futile under then-controlling law, namely People v. Geier (2007) 41 Cal.4th 555 (Geier). According to appellant, the law has changed since the trial because Melendez-Diaz “has cast doubt upon our Supreme Court’s holding in Geier.” The People dispute that Vanesian’s testimony violated appellant’s Sixth Amendment rights.
The California Supreme Court has granted at least 4 petitions of review wherein it will address the following issue: “How does the decision of the United States Supreme Court in [Melendez-Diaz] affect this court’s decision in [Geier]?” (People v. Rutterschmidt, review granted on Dec. 2, 2009, S176213; People v. Dungo, review granted Dec. 2, 2009, S176886; People v. Lopez, review granted on Dec. 8, 2009, S177046; People v. Gutierrez, review granted Dec. 2, 2009, S176620.)
We cannot reverse a judgment by reason of the erroneous admission of evidence unless the error resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) In other words, if the error was harmless, the judgment will not be reversed. “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.) In this case, we do not reach the issue of whether Vanesian’s testimony violated appellant’s Sixth Amendment rights because even if the testimony were erroneously admitted, the error was harmless beyond a reasonable doubt.
Appellant contends the admission of Vanesian’s testimony regarding Lepisto’s notes was “crucial” to establishing that the substance found in appellant’s possession on May 17, 2008, was cocaine. This is simply not true. Appellant’s counsel conceded, in both opening statement and closing argument, that the substance found in appellant’s possession on May 17, 2008, and later tested by Lepisto was indeed cocaine. Further, Deputy Sheriff Bertieri testified that appellant admitted he had two grams of cocaine on his person. Even appellant’s girlfriend testified that appellant had purchased cocaine 10 minutes before he was detained by the police and was rushing to a motel to smoke it before he was detained. There was absolutely no evidence in the record indicating that the white substance found on appellant on May 17, 2008, was anything but cocaine. Hence, even without Vanesian’s testimony, the prosecution proved beyond a reasonable doubt that appellant was in possession of cocaine on May 17, 2008. The judgment therefore cannot be reversed based on the alleged violation of appellant’s Sixth Amendment rights.
2. The Trial Court Did Not Conclude It Had No Discretion to Strike Additional Punishment Under Section 12022, Subdivision (c)
As stated, the trial court imposed a 4-year enhancement to appellant’s sentence for count 2 (possession for sale of cocaine in violation of Health & Saf. Code, §11351.5) pursuant to section 12022, subdivision (c), which provides: “[A]ny person who is personally armed with a firearm in the commission of a violation or attempted violation of Section... 11351.5... of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.” (Italics added.)
Section 12022, subdivision (f) provides: “Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in subdivision (c) or (d) in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.”
The trial court also has discretionary authority to strike an enhancement pursuant to section 1385. Section 1385, subdivision (a) states: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” Section 1385, subdivision (c)(1) states: “If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).”
Appellant contends that the trial court improperly concluded that the imposition of the 4-year sentence enhancement under section 12022, subdivision (c) was “mandatory” and therefore failed to exercise sound and informed discretion. This contention is based on comments the trial court made at the resentencing hearing on September 30, 2009. Specifically, in the course of describing appellant’s sentence, the trial court referred to the “mandatory three, four, or five years” enhancement in section 12022, subdivisions (c). The trial court also stated that it would impose the mid-term of 4 years on the “mandatory” section 12022, subdivision (c) enhancement.
We reject appellant’s argument. “On appeal, we presume the judgment is correct and we will not reverse unless the appellant establishes error occurred and that the error was prejudicial.” (People v. Mays (2007) 148 Cal.App.4th 13, 33.) In reviewing the judgment, we do not place undue importance on an isolated statement of the trial court, but rather review the record as a whole to determine whether the trial court made a reversible error. (People v. Davis (1995) 10 Cal.4th 463, 524).
Here, the trial court made two isolated statements that the imposition of a section 12022, subdivision (c) enhancement was “mandatory.” In a sense, these statements were true because the statute states the defendant “shall” be punished by an additional term where, as here, the defendant was found to have been personally armed with a firearm in the commission of a violation of section 11351.5. (§ 12022, subd. (c).) The term “shall”-the mandatory language of section 12022, subdivision (c)-must of course be modified by section 12022, subdivision (f), which grants the trial court the discretion to strike the additional punishment for the enhancement in an unusual case where the interest of justice would be served. Nothing in the record, however, indicates that the trial court was unaware of its discretion pursuant to section 12022, subdivision (f). We therefore decline to reverse the judgment based on two statements by the trial court that the section 12022, subdivision (c) enhancement was “mandatory.”
3. The Trial Court Was Not Required to Stay the Sentence for Count 3 Pursuant Section 654
Section 654, subdivision (a) provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Although section 654 uses the words “act or omission, ” the courts have expanded the literal language of the statute to include “a course of criminal conduct wherein multiple violations are incident to an accused’s single criminal objective.” (People v. Beamon (1973) 8 Cal.3d 625, 638.) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of 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, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Appellant argues that by imposing an enhancement to the sentence for count 2 pursuant to Health and Safety Code section 12022, subdivision (c) and by imposing a concurrent sentence for count 3, the trial court violated section 654. He contends that the trial court should have instead stayed the execution of the sentence for count 3. We disagree.
“Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) Rather, the correct procedure is for the trial court to impose sentences on all counts, and then stay execution of the sentences banned by section 654. (People v. Alford, supra, at p. 1469.)
A preliminary question is whether section 654 applies to enhancements. The Courts of Appeal are split on that question. (People v. Wynn (2010) 184 Cal.App.4th 1210, 1219, fn. 8.) The California Supreme Court has held that section 654 does not apply to enhancements “ ‘which go to the nature of the offender.’ ” (People v. Rodriquez (2009) 47 Cal.4th 501, 507.) The high court, however, has not determined whether section 654 applies to enhancements, such as the one involved in this case, “ ‘which go to the nature of the offense.’ ” (Ibid.) We do not reach the broader question of whether section 654 applies to enhancements because we hold that assuming that it does, section 654 does not bar the imposition of a concurrent sentence for count 3 in this case.
There are two courses of conduct we must analyze here. The first was appellant’s possession of cocaine for purpose of sale (count 2) and commission of that crime while being personally armed with a firearm (section 12022, subdivision (c) enhancement). The second course of conduct was appellant’s conviction of possessing a firearm as a convicted felon (count 3). This conduct had two components: (1) possession of a firearm and (2) being convicted of numerous prior felonies. (§ 12021, subd. (a)(1).)
In engaging in these two courses of conduct, appellant did not have the same intent and objective. In the first, one of appellant’s primary objectives was to make money by selling narcotics. This objective is entirely missing from appellant’s intent and objective in possessing a firearm as a convicted felon in violation of section 12021, subdivision (a)(1). Likewise, appellant’s convictions of numerous prior felonies-an essential element of section 12021, subdivision (a)(1)-is irrelevant to appellant’s intent and objective in possessing cocaine for purposes of sale while being armed with a firearm. We therefore hold that section 654 did not prohibit the trial court from imposing an enhancement pursuant to section 12022, subdivision (c), while at the same time imposing a sentence for appellant’s violation of section 12021, subdivision (a)(1).
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.