Opinion
A146509
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. DONALD E. CLARK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 051505874)
Donald E. Clark, who was tried with two codefendants for operating a heroin distribution house in Richmond, appeals from his conviction of multiple drug and weapons offenses and enhancements that resulted in a 12-year prison sentence. He contends on appeal that one enhancement for personal arming while in possession of a controlled substance for sale was not supported by substantial evidence. In supplemental briefing he invokes last year's Senate Bill No. 180, which amended Health and Safety Code section 11370.2 so as to effectively abolish certain prior felony drug conviction enhancements, including those for which Clark was sentenced. Clark argues the amendment applies retroactively to his case, and the Attorney General agrees. And finally, the parties agree a typographical error on Clark's abstract of judgment should be corrected.
We conclude the evidence was sufficient to support the personal arming enhancement under Penal Code section 12022, subdivision (c), but we will vacate the sentence and remand for resentencing in light of the amendment to Health and Safety Code section 11370.2. The accuracy of the abstract of judgment is moot in light of our decision to remand for resentencing.
I. BACKGROUND
A. Facts Underlying Current Charges
Officers began conducting surveillance on a home located at 1907 Hoffman Boulevard in Richmond in January 2015, two months before they executed the search warrant leading to this appeal. During the stakeout, officers observed codefendant Ralph E. Franklin and Clark at the residence on more than one occasion. Officers determined that Franklin drove a 1998 white Ford F-150 pickup truck which they saw parked in front of the house on approximately three or four occasions during the week before the search warrant was executed. Clark drove a green Cadillac. During the surveillance period, Detective Elizabeth Bashan often saw the white truck and the green Cadillac parked in front of the Hoffman Boulevard residence.
On January 27, 2015, Clark left the residence through the front door, spoke to an individual on the front lawn, then reentered the residence with the individual, using a set of keys to unlock the front door. On March 11, around 10:30 p.m., Franklin arrived at the residence in his white Ford F-150 truck. Clark exited the residence and approached the passenger side of Franklin's truck. The two appeared to talk, then Clark walked to a green Cadillac parked nearby. Franklin walked to the front door of the residence and used a set of keys to let himself inside.
Franklin went to and from the home in a pattern; he left the home on Mondays, Wednesdays, and Fridays and returned home between 10 p.m. and 11 p.m. Officers sometimes saw him travel to a medical office in El Cerrito, where (unbeknownst to the jury) he was receiving dialysis treatments.
Shortly before 11 p.m. on Monday, March 16, Richmond Police Department Detective Bashan saw Franklin leave the medical facility in his truck and followed him. Having a search warrant that encompassed both the home and Franklin and his truck, Bashan instructed other officers to pull over and detain the white Ford truck about three or four blocks away from the home. Officers seized Franklin's set of keys from the ignition. They also found about $1,000 on Franklin, as well as Department of Motor Vehicles paperwork. The truck was registered to Franklin at the Hoffman Boulevard address.
About five to ten minutes later, Detective Bashan and other officers executed a search warrant at the home. Forcibly entering, they found Clark and codefendant N.W. inside and discovered drugs, drug paraphernalia, guns, cash, and other items.
In addition to heroin residue coating various items of drug paraphernalia, officers found a cloth bag with three knotted plastic bags of tar heroin inside it in the outer pocket of a gray men's Sean John jacket, as well as more heroin in five baggies in the jacket, which was located in the east bedroom closet. The drugs in one bag weighed nearly 219 grams (almost half a pound) and those in the five smaller baggies weighed 28 grams combined; both tested positive for heroin. A typical dose of heroin is one-tenth of a gram.
Officers found assorted drug paraphernalia throughout the house. In the living room, officers found four containers, three empty and one with a white powder, labeled "lactose." They also found a food processor, coated on the inside with a brownish residue and smelling like vinegar, plugged into the wall. They found a triple beam scale and two digital scales, one with a "light brownish" residue on it. Officers also found approximately $80,000 in cash in multiple locations throughout the house—$2,000 in a pocket of the Sean John jacket in a closet, more than $32,000 stuffed in tube socks in the east bedroom closet, more than $1,500 on Clark, and nearly $43,000 in a locked safe.
Officers found seven guns, as well as related items. In the living room, officers found two handguns: one loaded handgun with a spare magazine and a second with an empty magazine. In the east bedroom, where Clark was apprehended, they found two more guns, a loaded assault pistol and a revolver, as well as ammunition and an opened gun cleaning kit. In the northeast bedroom, where N.W. was located, officers found two loaded semiautomatic assault rifles. In a hallway closet they found a locked safe, which they opened with a key they had seized from Franklin and discovered an unloaded Glock firearm and a Glock magazine inside, along with almost $43,000 in cash, mostly in $20 and smaller denominations. Finally, in the kitchen, they found a box containing a loaded Glock magazine and one loose round of ammunition. In addition to guns, drugs, and related paraphernalia, officers found several prescription pill bottles with Clark's name on them in the east bedroom, suggesting he was more than a casual visitor.
Steven Lynn of the Contra Costa County District Attorney's Office testified as an expert on heroin possession and distribution. He explained how a food processor or grinder, together with another substance such as lactose, can convert tar heroin into powdered form, which increases the amount available for sale. He also noted that heroin has an "acidic vinegar-type smell," and explained how the sale of heroin is a "cash business." Drug dealers use scales to weigh and plastic bags to package their drugs.
The prosecutor then described a hypothetical residence, which incorporated a description of the Richmond house and what officers found inside. Lynn described the hypothetical home as "very well fortified" against possible robberies and said activity inside was indicative of a "fairly large ongoing operation." He also characterized the living room as a "direct distribution area" where the drug transactions would take place and described how having guns distributed throughout the house would allow the drug dealers to defend their stash and cash against would-be robbers from anywhere in the house. He estimated the total assets (cash, drugs, and guns) were worth at least $100,000. He opined that no one who was not involved in the drug operation would have been allowed to go past the living room further into the house, and that the house would never be left alone without someone guarding it.
Lynn testified to his opinion that the heroin was possessed for sale based on factors such as the amount of cash found in the home, the "tactically arranged" locations of the weapons and people inside, and the presence of the scales, grinders, food processor, cutting material, and packaging supplies. He said it was very rare to find such a large amount of heroin in one location and described the home as an "upper-level distribution network that is making tens of thousands of dollars."
The jury also learned that on March 21, 2008, Clark was convicted of selling or transporting heroin. (Health & Saf. Code, § 11352, subd. (a).) This evidence came before the jury under Evidence Code section 1101, subdivision (b) to prove knowledge and intent, and a limiting instruction was given. B. The Charges
The Contra Costa County District Attorney filed a total of six counts against Clark and his codefendants, Franklin and N.W. This opinion addresses only Clark's appeal. The charges against Clark in the operative third amended information were: possession of a controlled substance for sale (Health & Saf. Code, § 11351) (count 1), with an enhancement for being personally armed with a firearm during the offense (Pen. Code, § 12022, subd. (c)); possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)) (count 2); possession of an assault weapon (Pen. Code, § 30605, subd. (a)) (count 4); being an ex-felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) (count 5); and being a prohibited person possessing ammunition (Pen. Code, § 30305, subd. (a)) (count 6), with an enhancement for being armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). Count three was alleged solely against codefendant Franklin; N.W., like Clark, was charged with counts one, two, and four through six. The third amended information further alleged Clark had suffered four prior convictions: two for possession for sale of a controlled substance in 1986 and 1995 (Health & Saf. Code, § 11351), and two for sale or transportation of a controlled substance (Health & Saf. Code, § 11352) in 1998 and 2008. C. The Verdicts and Sentencing
In a bifurcated trial, a jury convicted Clark of possession of heroin for sale (Health & Saf. Code, § 11351), along with the firearm and ammunition charges and the arming enhancements (Pen. Code, §§ 12022, 29800, 30305, 30605; Health & Saf. Code § 11370.1 & former § 11370.2). It also convicted Franklin of all charges against him and acquitted N.W. of all charges.
The third amended information alleged four prior convictions against Clark in 1986, 1995, 1998, and 2008 for violations of Health and Safety Code sections 11351 and 11352. Clark waived a jury trial on the prior conviction allegations. At a bench trial on August 21, 2015, the parties stipulated to two of the prior convictions, the court found true the 1998 and 2008 convictions of sales or transportation of a controlled substance (Health & Saf. Code, § 11352), and the People dismissed the other two prior conviction allegations. The two prior convictions qualified Clark for two mandatory, consecutive three-year enhancements under Health and Safety Code former section 11370.2, subdivision (a).
The trial court found the six years imposed for the enhancements based on the prior drug convictions "adequately addressed" Clark's criminal history and expressed concern that Clark not receive a sentence "disproportionate to his role in the offense here" and that his sentence not "be in excess of the sentence for the co-defendant," who was "a more culpable party." The court sentenced Clark to an aggregate prison term of 12 years. Clark timely appealed.
II. DISCUSSION
A. There Was Sufficient Evidence That Clark Was Personally Armed.
Clark claims he was improperly found to have been "personally armed" with "rifles" under Penal Code section 12022, subdivision (c) in connection with his possession of heroin for sale, as alleged in the third amended information. That section imposes various terms of additional imprisonment for defendants convicted of felonies, increasing in severity for those who exhibit greater levels of culpability or pose greater levels of danger. Subdivision (a)(1) of that section imposes a one-year enhancement for a defendant who either personally or vicariously was armed in the commission of any felony. Subdivision (a)(2) imposes a three-year enhancement if the firearm was an assault weapon, again, regardless of whether the defendant was personally armed, so long as one of the principals was armed. Subdivision (c) of Penal Code section 12022 authorizes an additional consecutive term of three, four or five years for a defendant who was "personally armed" in the commission of certain specified drug offenses, including Health and Safety Code sections 11351 and 11352. Subdivision (d) prescribes a one-, two- or three-year enhancement for one who is not personally armed but who knows that another principal is armed.
Clark relies on the difference in language between being "armed" as provided in subdivision (a) and being "personally armed" under subdivision (c) to argue that the evidence was insufficient to show he was "personally armed" with the assault rifles found in the northeast bedroom closet because he was found in the east bedroom. He treats the phrase "personally armed" as requiring something more proximate than having the weapon at his disposal in a different room in the house for use in protecting the drug stash and money. We think, even if the loaded assault rifles were located in a closet in a bedroom down the hall, they still could be considered "available for [Clark's] use" as required by the statute. (See People v. Bland (1995) 10 Cal.4th 991, 999 (Bland).)
In Bland, the Supreme Court defined "arming under the sentence enhancement statutes" as not requiring "that a defendant utilize a firearm or even carry one on the body. A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively." (Bland, supra, 10 Cal.4th at p. 999.) Bland further described the inferences that would allow a finding of " 'arming' ": "when the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer: (1) that the defendant knew of the firearm' s presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was 'armed with a firearm in the commission' of a felony within the meaning of [Penal Code] section 12022." (Id. at p. 995.)
Bland further clarified that it was not necessary for the firearm to be within arm's reach at the moment the weapon is seized for the defendant to be "armed." "[S]ubdivision (a)(2)'s three-year sentence enhancement would apply to a defendant who has been found guilty of felonious drug possession and who, at some point during the illegal drug possession, had an assault weapon available for use in furtherance of the drug offense." (Bland, supra, 10 Cal.4th at p. 1001.) Applying its own newly established guidelines, Bland affirmed a jury's finding that a defendant was "armed" with a firearm in a drug offense, where an unloaded assault rifle was kept under the bed in the same room where the drugs were found, even though the defendant was outside the house, sitting in a patrol car, at the time the drugs and firearm were discovered. (Id. at pp. 1003-1004.) That the weapon was unloaded was insufficient reason to rule out a finding the defendant was armed. (Id. at pp. 1004-1005.) Thus, the arming enhancement seeks to sweep within its purview conduct that falls short of immediate unhindered access to firepower.
Under subdivision (c) of the same statute, however, only one who is "personally armed" with a firearm may be subject to the enhanced punishment. (Bland, supra, 10 Cal.4th at p. 998, fn. 3.) Clark would have us interpret "personally armed" in such a way that one could only be found guilty of the enhancement if found in very close proximity to the specified firearm, suggesting that the phrase "personally armed" requires a closer relationship between the defendant and the firearm than the word "armed" requires. That construction of the statute has been rejected by the courts.
"[P]ersonally armed" means only that the defendant must be found subject to the arming enhancement based on his or her own conduct, not that of an accomplice. (See People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1012-1013 [defendant whose handgun was in his wife's purse in a different room from the drugs and from him was "personally armed" under Pen. Code, § 12022, subd. (c)]; People v. Smith (1992) 9 Cal.App.4th 196, 202-205 [subd. (c) of Pen. Code, § 12022 "expressly provides only for personal liability," while subd. (d) provides only for vicarious liability]; People v. Mendival (1992) 2 Cal.App.4th 562, 574 [two people can be "personally armed" with the same weapon]; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1467-1471 [man arrested at home, who had weapons stashed throughout his house but none on his person, could be found to be "personally armed"].)
Based on Lynn's testimony, the jury could reasonably infer that all the principals in the drug sales business also knew where the various firearms were located in the house, for self-protection and protection of the illegal assets. The fact that Clark, as a participant in the drug enterprise, was arrested on the premises of this ongoing illegal activity made it reasonable for the jury to conclude he was "personally armed." Clark attempts to avoid liability based on the strictly fortuitous happenstance that he was found in the east bedroom of the house, while the assault rifles were found in the northeast bedroom. Lynn testified that someone could have retrieved the assault rifles "within seconds," as they were placed muzzle down in the closet where they were found, and a path to the closet had been cleared to make it easy for anyone entering the room to grab them. Clark faults the prosecutor for failing to put on evidence that he ever entered the northeast bedroom. Such proof was unnecessary. The few seconds Clark would have needed to retrieve and use the assault rifles left the weapons still available to him in the eyes of the jury.
See People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 985, 989-990 [defendant was "armed" under Health & Saf. Code, § 11370.1 where drugs were in kitchen, but guns were elsewhere in the house, even where statute required guns to be "immediate[ly]" available]; People v. Vang (2010) 184 Cal.App.4th 912, 914, 916-917 [defendant armed with gun kept in locked bedroom, with drugs in various closets]; People v. Wandick (1991) 227 Cal.App.3d 918, 921, 926-928 [defendant armed with gun in bedroom, drugs located throughout house]; People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1572-1573, 1575 [evidence was sufficient to apply arming enhancement where guns were found in defendant's bedroom and drug manufacturing equipment and ingredients were found in trunk of a car and locked bed of his truck that had been parked nearby]; cf. People v. Jackson (1995) 32 Cal.App.4th 411, 421-422 [evidence was insufficient to apply arming enhancement where defendant's gun was in his car, which was parked two blocks away from crime scene].
The expert's testimony provided the link tying Clark to all the weapons in the house. According to Lynn, the whole house was set up with protection of the illicit assets in mind. Lynn described the weapons as being "tactically" situated to allow the drug dealers to access them at any time, from any location, in defending against robbery of the drugs or money located in the home. For instance, one of the handguns was stuffed between a cushion on the couch and the arm of the couch, for easy access if an intruder came through the front door. Lynn's testimony was substantial evidence supporting the jury's "personally armed" finding.
After hearing the expert's testimony, only the most naïve juror could have believed that Clark was innocently on the premises, that he confined his movements while inside the house to areas excluding the northeast bedroom, or that he was ignorant of the presence and placement of the various weapons throughout the house. The judge gave voice to the jury's probable finding that "Mr. Clark's role in this offense was as an aider and abettor, somebody guarding Mr. Clark's [sic: Franklin's] stash, guarding the stash while he was getting the dialysis treatment."
But even if Franklin played a bigger role in the heroin operation than Clark did, that does not mean the evidence lends itself to Clark's hypothesis that he was not armed with the rifles located in the northeast bedroom. The jury could reasonably have found Clark's whole purpose in being in the house was to use the guns to protect the stash, and he had ready access to all the guns in the house. The key question was whether the assault rifles were "available for [Clark's] use, either offensively or defensively" (Bland, supra, 10 Cal.4th at p. 997), which was a question properly left to the jury.
Because the Richmond house was set up to be used exclusively as a drug distribution stronghold, the jury could reasonably have found that all of the participants in the drug dealing business, when they were in the house, were armed with all of the weapons in the house. The jury demonstrated its ability to distinguish between those actively involved in the drug operation and those who just happened to be on the premises when the search warrant was executed. The jury acquitted N.W. of all charges, even though he was apprehended in the northeast bedroom. The same jury unanimously applied the personal arming enhancement to Clark. We have no reason to upset that finding. There was substantial evidence Clark was "armed" within Bland's definition, and because criminal liability was based on his own conduct, he was "personally armed." B. Senate Bill No. 180 Applies to Clark's Case and Requires Striking of the Enhancements Under Health and Safety Code Section 11370 .2.
N.W. told the police he was only at the Hoffman Boulevard house to visit his uncle, namely Clark. His mother and his daughter's mother provided testimony suggesting that he only arrived at the Hoffman Boulevard house shortly before the raid and did not live there.
Because he was convicted of possession of heroin for sale (Health & Saf. Code, § 11351), a three-year enhancement was imposed on Clark for each of two qualifying prior drug-related convictions from 1998 and 2008. (Health & Saf. Code, former § 11370.2, subd. (a).) While Clark's appeal was pending, the Legislature passed Senate Bill No. 180, which became effective January 1, 2018. (Stats. 2017, ch. 677, § 1.) The bill modified Health and Safety Code section 11370.2 to authorize the enhancement only for prior convictions of violating Health and Safety Code section 11380, which criminalizes furnishing drugs to a minor or using a minor as an agent in committing a drug offense. The amendment thereby abolished sentence enhancements predicated on violations of other drug statues, including those forming the basis of Clark's two sentence enhancements. Since his convictions are not final, and the amendment is retroactive, Clark is entitled to the benefit of the amendment. (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1212-1213, review granted Nov. 20, 2018, S251333; People v. Wallin (2018) 20 Cal.App.5th 450, 454-456; People v. Zabala (2018) 19 Cal.App.5th 335, 344; see generally, In re Estrada (1965) 63 Cal.2d 740, 748; People v. Rossi (1976) 18 Cal.3d 295, 299-301 [Estrada analysis applies when the amendment eliminates the penalty previously authorized]; People v. Nasalga (1996) 12 Cal.4th 784, 792-793 [Estrada rule applies to enhancements].)
Both parties suggest the proper remedy is to remand the case for resentencing in light of the changes wrought by Senate Bill No. 180. We agree. The record shows the court carefully crafted a sentence structured around the two enhancements under Health and Safety Code section 11370.2 so the overall sentence matched the degree of Clark's culpability. In fine-tuning the sentence, the judge imposed the lower term of two years on the only unstayed drug offense (possession for sale) and the middle terms on Clark's remaining offenses and enhancements, with most being stayed under Penal Code section 654. Because the judge may wish to rethink the sentence in light of our striking the enhancements, we will remand Clark's case for resentencing so the trial court may impose a sentence that reflects its view of Clark's culpability, so long as the aggregate prison term is not greater than 12 years. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1256; People v. Craig (1998) 66 Cal.App.4th 1444, 1446-1452; see People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].) C. The Typographical Error on the Abstract of Judgment Need Not Be Corrected in Light of Our Remand for Resentencing.
Clark initially argued that a typographical error on the abstract of judgment and clerk's minutes should be corrected to show his sentence was enhanced under Health and Safety Code section 11370.2, subdivision (a) instead of subdivision (c), and the Attorney General agreed. But the issue is now moot in light of our remand for resentencing. It would make no sense for us to remand for correction of this now irrelevant clerical error.
The Attorney General also points out that the abstract of judgment reflects the improper code section for the substantive offense on count two, designating the crime as a violation of Health and Safety Code section 11370.2, subdivision (a), when it should have been Health and Safety Code section 11370.1, subdivision (a). We trust the trial court will take care to see this type of clerical error is not repeated on the amended abstract of judgment to be prepared after resentencing.
III. DISPOSITION
The sentence is vacated and the matter is remanded to the trial court for resentencing and preparation of a new abstract of judgment. Both of the prior felony drug conviction enhancements (Health & Saf. Code, § 11370.2, subd. (a)) are ordered stricken. In all other respects, the judgment of conviction is affirmed. The court is directed to forward certified copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Tucher, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------