Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from the judgments of the Superior Court of Los Angeles County No. MA033685, Lisa M. Chung, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Deon Demitrius Darby.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Johnny Lee.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant Calvin Phillips, IV.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendants Deon Demitrius Darby, Calvin Phillips, IV, and Johnny Lee guilty in count one of conspiracy to possess cocaine for sale (Pen. Code, § 182, subd. (a)(1); Health. & Saf. Code, § 11351), possession of marijuana for sale in count four (Health & Saf. Code, § 11359), possession of a controlled substance with a firearm in count five (Health & Saf. Code, § 11370.1, subd. (a)), and maintaining a place for selling or using a controlled substance in count six (Health & Saf. Code, § 11366). Darby and Phillips were also found guilty in count two of possession of cocaine for sale (Health & Saf., § 11351) and in count three of possession of cocaine base for sale (Health & Saf., § 11351.5). Lee was also found guilty of lesser included offenses of possession of cocaine as to count two (Health & Saf., § 11350) and possession of cocaine base as to count three (Health & Saf., § 11350). Lee and Phillips were found guilty by the jury in counts nine and ten, respectively, of felon in possession of a firearm (§ 12021, subd. (a)). The jury found true special allegations that defendants committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code, unless indicated otherwise.
In a bifurcated proceeding, the trial court found true the special allegation that Lee had one prior “strike” conviction (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)) and had served four prior prison terms (§ 667.5, subd. (b)). Phillips admitted serving two prior prison terms (§ 667.5, subd. (b)).
All three defendants were sentenced to state prison—Lee for 21 years four months, Phillips for 14 years eight months, and Darby for 12 years eight months.
In the sentencing issues section of the discussion below, we will set forth the elements of the construction of the sentences that are pertinent to the issues.
Darby and Phillips contend that their convictions of possession of cocaine for sale must be dismissed because possession of cocaine for sale is a lesser included offense of conspiracy to possess cocaine or, in the alternative, their concurrent sentences for possession of cocaine for sale should be stayed pursuant to section 654. Darby contends admission of the contents of a 911 call made by his mother was an abuse of discretion and violated due process, and his upper term, consecutive sentence violated his Sixth Amendment right to a jury trial. Phillips contends that counsel’s failure to object to expert testimony that the crimes were committed for the benefit of a street gang was ineffective assistance of counsel, and his upper term sentence violated his Sixth Amendment right to a jury trial. Phillips and Lee contend the one-year gang enhancements should be stayed pursuant to section 654. Lee contends the admission of hearsay statements was an abuse of discretion and his upper term, consecutive sentence violated his Sixth Amendment right to a jury trial. As discussed below, we conclude Darby’s and Phillips’s concurrent sentences for possession of cocaine for sale must be stayed under section 654 and otherwise reject each of defendants’ contentions. The Attorney General contends, and we agree, that we should correct the sentences by imposing additional mandatory penalties. Therefore, we modify the sentences, as set forth in the disposition, and otherwise affirm the judgments.
STATEMENT OF FACTS
Prosecution Case
On November 9, 2005, Los Angeles County Sheriff’s Department deputies executed a search warrant for units two and four on the ground floor of an apartment complex on Beech Avenue in Lancaster, based on observations of a high volume of traffic coming from and going to the apartments and numerous hand-to-hand transactions outside the apartments.
Phillips, a member of the Rolling 20s Bloods, whose gang moniker was “Tank,” Darby, also a member of the Rolling 20s Bloods, whose gang moniker was “Daddy-O,” and Carol David, Darby’s mother, all lived in apartment four and were present when the deputies executed the search warrant. Phillips closed the door on the deputies when the search was announced. Darby was seen holding a bag containing individually wrapped rocks of cocaine base, small baggies of methamphetamines and marijuana, and $230.00. Other items recovered from apartment four included: baggies containing cocaine base; a backpack containing numerous baggies of marijuana, powdered cocaine, methamphetamines, and two checks made payable to Phillips; boxes of baggies; three digital gram scales; pay-and-owe sheets; a loaded shotgun; boxes of shotgun shells and handgun ammunition; six used methamphetamine pipes; and $173.00 in crumpled bills. Drugs packaged similarly to the packaged drugs inside the apartment were found in the possession of an individual outside the apartment. “Daddy-O” and “Tank” were written on two of the scales. Gang graffiti—“Tank,” “Daddy-O,” “BDS” (Black Demon Soldiers, a subset of the Rolling 20s Bloods), and “R20”—was present in the apartment. Graffiti depicting “Daddy-O,” “Tank,” and “BDS” was on the exterior of the building.
Darby had a “BDS” tattoo.
Lee, a member of the West Covina Neighborhood Crips and an affiliate of the Rolling 20s Bloods, whose moniker was J-Bone, was present in apartment two, where he lived with his wife. The following items were found: bags of marijuana; cocaine residue; methamphetamine pipes; digital scales with “Daddy-O,” “Tank,” “T,” and “D” etched on them; a checkbook and bills bearing Lee’s name; and shotgun rounds. A cell phone listed “Tank” as a recent caller. A loaded shotgun was found in Lee’s wife’s car parked outside the apartment, and a loaded shotgun was recovered from a gang member detained outside the apartment.
Apartments two and four each had a security monitor fed by the same cameras situated around the exterior of the building. Cameras providing video feed were also located under the open hood of a car and in the laundry room.
In all, nearly 100 grams of marijuana, mostly in bulk form, over 4 grams of powdered cocaine packaged in small baggies of equal weight, and over 11 grams of cocaine base consisting of individually-wrapped rocks, totaling $2,400, were recovered. In the opinion of drug expert Deputy Jeffrey Knittel, the drugs were possessed for sale, the two apartments were used for selling drugs and as a flop pad, and an ongoing narcotics operation was taking place in the two apartments. In the opinion of Antelope Valley gang expert Deputy Brian Dorsey, gangs in the Antelope Valley collaborate in the business of selling narcotics. The Rolling 20s Bloods’ primary criminal activity in the Antelope Valley is drug sales, and they maintain locations there for selling drugs. Selling drugs brings money into the gang organization.
Defense Cases
Darby, David, and Phillip’s girlfriend testified. David lived in apartment four. Neither Darby nor Phillips lived in apartment four. Darby was at David’s apartment on November 9, 2005, to help David move. No drug transactions were taking place in the apartment. Darby, who used drugs, had his own drugs with him that day for his personal use, not for sale. Darby was not holding the bag of drugs and cash the police stated he held when the police arrived to execute the search warrant. That bag belonged to David, who was an addict. The security monitor had been installed for David’s protection.
Darby belonged to the BDS gang when he lived in Los Angeles in the mid-1990’s, but he left the area after a few years, changed his life style, and began working fulltime in auto maintenance. He still hung out with BDS members, but his participation in the gang was very low.
Phillips’s girlfriend testified that Phillips lived with her in her apartment. He was employed and worked six days a week. He used drugs.
Lee testified that he and his wife lived in apartment two. The marijuana and cocaine residue found in his apartment belonged to him for his personal use and the money belonged to his wife. One of his female friends was nicknamed “Tank,” and it was her name that appeared on the cell phone found in Lee’s apartment. He had met Darby and Phillips but did not know them and was not involved in drug sales with them. He had no knowledge of the loaded shotgun in his wife’s car’s trunk, the shotgun rounds found in his apartment, or the scale found in his apartment. He installed security cameras in his apartment for his family’s protection. The camera systems in apartments two and four were not connected. He belonged to a gang in his youth but never had a gang moniker of J-Bone and was not currently active in a gang.
The friend testified for Lee.
DISCUSSION
Evidence of David’s 911 Call
Darby contends it was an abuse of discretion and violation of due process to admit the contents of David’s November 3, 2005 call to the 911 operator, because David’s statements indicating that Darby physically attacked her were more prejudicial than probative under Evidence Code section 352. We hold the evidence was properly admitted because its probative value was not substantially outweighed by any potential prejudice.
It follows from this conclusion that Darby’s due process rights were not violated. (See People v. Johnson (2000) 77 Cal.App.4th 410, 416-420 [admission of propensity evidence does not violate due process if its admission is a proper exercise of discretion under Evidence Code section 352].) Further, as admission of the evidence was not a violation of due process, counsel was not ineffective for failing to object on due process grounds at trial.
David testified on direct examination that she lived alone in apartment four. She provided an innocent explanation for the presence of Darby, some of the drugs and cash, and the video camera security system in her apartment on November 9. She denied she was afraid of defendants. She explained she made the 911 call on November 3 to ask the police to remove Darby and Phillips from her home, but denied she told the 911 operator on November 3 that Darby attacked her.
The prosecutor proffered a tape and transcript of David’s 911 call, which indicated David told the 911 operator that Darby shoved her down and took her knife and cell phone. She also told the operator she wanted to live alone and the police should come and eject Darby and his friend from her home. Darby objected under Evidence Code section 352 that the 911 call would create undue prejudice because it described a prior bad act and indicated Darby used physical violence, whereas the charges against him were nonviolent drug offenses. The trial court overruled the objection, reasoning that although David’s statements had some prejudicial value, “it is clear that [David] is a major witness. Her credibility is going to be important as well as impeachment value. In addition, there are issues here regarding how long they were in the residence that would relate to relevant issues such as constructive possession or knowledge of the contraband that was found at the location, such as the guns or the illegal narcotics.” The jury was instructed that it could use statements made by a witness prior to trial to assess the witness’s credibility and also as evidence of the truth of the information contained in the statements (Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 316).
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “A trial court’s exercise of discretion in admitting or excluding evidence [under Evidence Code section 352] is reviewable for abuse . . . and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Ledesma (2007) 39 Cal.4th 641, 704-705.)
As David provided exculpatory reasons for the presence of Darby, drugs, cash, and the security system in apartment four, her credibility was central to the case. The contents of the 911 call impeached her testimony that Darby had not attacked her, she did not fear Darby, and Darby did not live in apartment four. If the jury concluded David’s testimony concerning the 911 call was not true, the jury could distrust the balance of her testimony, including her testimony the drugs, cash, and security system belonged to her. The call also was probative of the material issue of whether Darby was in possession of the drugs and shotgun found on the premises as charged. The act alleged in the 911 call—that Darby shoved David down—was less inflammatory than the charged crimes against Darby. The trial court’s conclusion that the probative value of the 911 call was not substantially outweighed by its prejudicial value was well within the bounds of reason. The trial court did not abuse its discretion.
Hearsay
Telephone Call From Marijuana Customer
Deputy Slade Carrizosa testified that he answered a telephone in Lee’s apartment during the execution of the search warrant on November 9 and spoke to an unidentified caller who asked for J-Bone and stated he wanted to purchase $10.00 of marijuana. Lee contends this testimony was inadmissible hearsay. We conclude the contention was forfeited by Lee’s failure to object in the trial court on the ground asserted in the appeal. (Evid. Code, § 353, subd. (a) [no judgment shall be reversed by reason of the erroneous admission of evidence that was not objected to]; People v. Partida (2005) 37 Cal.4th 428, 431.)
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353.)
“‘In accordance with [Evidence Code section 353], we have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. (People v. Green (1980) 27 Cal.3d 1, 22 [objection on ground that questions were leading does not preserve appellate argument that the evidence was impermissible evidence of other crimes]; . . .)’ [Citation.]” (People v. Partida, supra, 37 Cal.4th at pp. 433-434.) “[A] trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial. A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. . . . . [¶] . . . To the extent, if any, he argues that due process required the court to exclude the evidence for a reason not included in the trial objection, that argument is forfeited because he did not object to the evidence on that basis at trial.” (Id. at p. 431.)
When the prosecutor proffered the evidence of this telephone call, Lee objected the evidence denied him his right of cross-examination under the Sixth Amendment. He did not object on hearsay grounds. Thus, we deem his challenge on appeal forfeited. The trial court admitted the evidence as circumstantial evidence that the drugs seized in Lee’s apartment were for the purpose of sale. Lee’s contention that, in these circumstances, a hearsay objection was implied by his objection on Sixth Amendment grounds is unavailing, as he did not clearly state hearsay as a specific reason for excluding the evidence. (See Evid. Code, § 353, subd. (a); People v. Partida, supra, 37 Cal.4th at p. 431.)
In any event, Lee’s hearsay objection is without merit. (People v. Ventura (1991) 1 Cal.App.4th 1515, 1517-1518; People v. Nealy (1991) 228 Cal.App.3d 447, 451-452; People v. Bullock (1990) 226 Cal.App.3d 380, 389-390; People v. Hale (1968) 262 Cal.App.2d 780, 789; see also People v. Fischer (1957) 49 Cal.2d 442, 447 [calls to bookmaking establishment held not to be hearsay]; People v. Carella (1961) 191 Cal.App.2d 115, 139-140 [same]; cf. People v. Morgan (2005) 125 Cal.App.4th 935, 940-946 caller’s statements are hearsay, but admissible under a court-created hearsay exception.)
David’s Domestic Violence Call
Deputy Knittel testified on rebuttal that David told him during the execution of the search warrant that she had called the police in October 2005 and reported that Lee was in her apartment with three guns and was fighting with his wife. The trial court allowed the testimony for impeachment. Lee contends the testimony was inadmissible hearsay. We find that the statement was admissible as a prior inconsistent statement (Evid. Code, § 1235).
Evidence Code section 1235 provides in pertinent part: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with . . . his testimony at the hearing.” David testified on cross-examination that she did not tell Deputy Knittel that she had called the police and reported that Lee and his wife were fighting and Lee was in David’s apartment with three guns. She also denied making such a call. In light of these denials, Deputy Knittel’s rebuttal testimony was admissible under Evidence Code section 1235 as a prior inconsistent statement. (See In re Hardy (2007) 41 Cal.4th 977, 1001 [witness’s out-of-court statements were admissible as prior inconsistent statements].)
To the extent that Lee contends the conversation between Deputy Knittel and David about the domestic violence call was collateral and it was irrelevant whether Lee threatened his wife and possessed a gun in October, these contentions were forfeited by her failure to object on these grounds below. (In re Hardy, supra, 41 Cal.4th at p. 1000.) In any event, considering the overwhelming evidence of guilt, any error in admitting this rebuttal testimony was nonprejudicial. (Cal. Const., art. VI, § 13.)
Counsel’s Failure to Object to Expert Testimony That Phillips Committed the Crimes for the Benefit of the Gang Was Not Ineffective Assistance of Counsel
Phillips contends that his trial counsel rendered constitutionally ineffective assistance in violation of the Sixth Amendment by failing to object to Detective Dorsey’s testimony that Phillips committed the charged crimes for the purpose of benefitting the gang. He contends this ineffective assistance denied him a fair trial and due process. We disagree with the contentions.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; Williams v. Taylor (2000) 529 U.S. 362, 390-391; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
“A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
A reviewing court need not determine whether counsel’s performance was deficient before examining whether the defendant suffered prejudice as a result of alleged deficiencies: “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)
Phillips contends the following exchange should have been objected to: “Q. As to Tank [Phillips] and Daddy-O [Darby], do you believe they committed the crimes for the purpose of benefitting the gang?” [¶] A. [Detective Dorsey:] Yes. [¶] Q. In what way? [¶] A. They are also self-admitted active Rolling 20s gang members. They share common video feed with defendant Lee for the two apartments. They chose to write graffiti describing not only their gang but their set, BDS, along with a roster with all the nicknames that you saw on the cardboard listed and posted on the wall of their apartment. The fact that they had several other gang members out in front of the location to act as either lookouts or informants or enforcers, one of which had a shotgun down his pants, that bolsters my opinion it was for the benefit of the Rolling 20s Blood Gang.”
Phillips acknowledges that hypothetical questions are permitted, but contends that, under People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77, the testimony was an impermissible expression of opinion that Phillips was guilty. For purposes of discussion, we accept the premise of Phillips’s contention.
Defense counsel for Phillips was not given an opportunity to explain on the record why he did not object to the one question in dispute. Phillips contends the failure to object was not the result of a tactical decision, because counsel argued to the jury that the only evidence the crimes were for a gang purpose was Detective Dorsey’s testimony. However, even if the opinion Phillips committed the crimes for the benefit of the gang was impermissible, there is a practical tactical reason why counsel might not have objected. If an objection had been made and sustained to the form of the question, the prosecutor would have been entitled to rephrase the question in hypothetical form, allowing him to emphasize each of the facts in evidence supporting the conclusions that Phillips committed the crimes and the crimes were committed for the benefit of the gang. Counsel for Phillips might have considered this prospect much more damaging to his client. Since the record fails to show that counsel had no adequate reason for not objecting, we must reject the contention.
Assuming the merits on the adequacy of counsel argument are cognizable on direct appeal, we need not address whether counsel’s failure to object violated Strickland’s performance criterion, because it is clear that any such defalcation would have been nonprejudicial under the Sixth Amendment standard. The facts that Detective Dorsey recited, showing that the crimes were committed to benefit the gang, were supported by evidence admitted at trial. Similarly, Phillips’s active gang membership, close association with Darby, Lee, and the two apartments, and participation in the crimes were established by abundant evidence. There was other expert testimony that an ongoing narcotics operation was taking place in the two apartments and the Rolling 20s Bloods were in the business of selling drugs for gang purposes. On this record, there is no possibility of a result more favorable to Phillips had counsel lodged an objection to the testimony.
Sentencing Issues
One-Year Gang Enhancements Should Not Be Stayed Under Section 654
The trial court imposed a four-year gang enhancement (§ 186.22, subd. (b)(1)(A)) on Lee and Phillips on the sentence in count one for conspiracy to possess cocaine for sale. The trial court also imposed one-year gang enhancements on the sentences in count four for possession of marijuana for sale and count five for possession of a controlled substance with a firearm. Lee and Phillips contend that section 654 requires the enhancements to counts four and five should be stayed. We hold the enhancements to counts four and five should not be stayed under section 654.
Section 654 provides in pertinent part: “(a) 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.” “We have extended the protections of section 654 to cases in which several offenses are committed during course of conduct deemed to be indivisible in time.” (People v. Palacios (2007) 41 Cal.4th 720, 727 (Palacios).) The Supreme Court has not decided whether section 654 generally does not apply to enhancements. (Id. at pp. 727-728.)
In Palacios, the Supreme Court held that since section 12022.53, subdivision (d) (firearm enhancement) by its terms must be applied notwithstanding any other law as an additional and consecutive term, “section 654 [does not] preclude punishment for more than one section 12022.53 enhancement when each is based on a single act committed against a single victim, although in the commission of separate crimes.” (Palacios, supra, 41 Cal.4th at p. 726.)
Section 186.22, subdivision (b)(1) provides in pertinent part: “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] (A) . . . [B]y an additional term of two, three, or four years at the court’s discretion.”
The underlying offenses, conspiracy to possess cocaine for sale, possession of marijuana for sale, and possession of a controlled substance with a firearm, were not subject to section 654. (See In re Hayes (1969) 70 Cal.2d 604, 606-607; People v. Monarrez (1998) 66 Cal.App.4th 710, 714 .) Where substantive offenses are not subject to section 654, “gang enhancements pursuant to section 186.22, subdivision (b)(1) are also not subject to section 654.” (People v. Akins (1997) 56 Cal.App.4th 331, 340.) The rule that there is no need to stay gang enhancements attached to substantive crimes not subject to section 654 is consistent with the legislative intent expressed in section 186.21 “‘to seek the eradication of criminal activity by street gangs.’” (People v. Gardeley (1996) 14 Cal.4th 605, 609.) In enacting section 186.22, subdivision (b)(1), the Legislature expressed the belief “that existing laws should be utilized to the fullest extent possible to actively pursue innovative programs to deter criminal gang activity.” (People v. Akins, supra, 56 Cal.App.4th at p. 341.) The holding in Akins, applicable here, furthers the stated legislative purpose.
Lee and Phillips mistakenly argue that the enhancements “are in fact substantive crimes to which section 654 must apply.” In a recent opinion, the Supreme Court rejected the argument that conduct enhancements can be equated with offenses: “Nor does defendant’s claim that these conduct enhancements are the functional equivalent of completed offenses or convictions for purposes of the multiple conviction rule find any support in the case law. Conduct enhancements cannot be imposed standing alone as additional punishment. By definition, an enhancement is ‘an additional term of imprisonment added to the base term.’ [Citations.] For that reason alone, an enhancement cannot be equated with an offense.” (People v. Izaguirre (2007) 42 Cal.4th 126, 134.)
Conduct enhancements go to the nature of the offense. (People v. Martinez (2005) 132 Cal.App.4th 531, 536.)
Accordingly, we conclude the one-year gang enhancements in counts four and five should not be stayed.
Possession of Cocaine For Sale Is Not A Necessarily Included Offense of Conspiracy To Possess Cocaine For Sale
Darby and Phillips contend that their convictions for possession of cocaine for sale (Health & Saf. Code, § 11351) are necessarily included in their convictions for conspiracy to possess cocaine for sale (Health & Saf. Code, §§ 182, subd. (a)(1), 11351). They contend, under the rule prohibiting multiple convictions based on necessarily included offenses, the convictions for the lesser included offense of possession of cocaine for sale must be dismissed. In the alternative, Darby and Phillips contend their concurrent sentences for possession of cocaine for sale in count two should be stayed pursuant to section 654, an argument with which the Attorney General agrees. We reject the contention that possession of cocaine for sale is necessarily included in conspiracy to possess cocaine for sale. However, we agree with defendants’ section 654 contention, and accept the Attorney General’s concession, that the objective of the conspiracy was identical to the objective of the substantive offense. Section 654’s prohibition against multiple punishment for the same act requires that the concurrent term imposed for the convictions of possession of cocaine for sale in count two be stayed. (See People v. Ramirez (1987) 189 Cal.App.3d 603, 615-617.)
We turn to the contention that possession of cocaine base for sale is a lesser included offense of conspiracy to possess cocaine. The California Supreme Court “has long held that multiple convictions may not be based on necessarily included offenses.” (People v. Pearson (1986) 42 Cal.3d 351, 355; accord, People v. Sloan (2007) 42 Cal.4th 110, 113-114 [enhancement allegations may not be considered for purposes of the determining whether the rule prohibiting multiple convictions based on necessarily included offenses applies].)
“‘Courts should consider . . . only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.’ [Citation.] . . . [Where] we are concerned with charged crimes and enhancements[,] [t]he legal elements test, not the accusatory pleading test, applies.” (People v. Izaguirre, supra, 42 Cal.4th at p. 131 [enhancements are not elements of the offense in defining necessarily included offense]; accord, People v. Sloan, supra, 42 Cal.4th at p. 118 [“‘“[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.”’ [Citation.]”].)
Conspiracy to possess cocaine for sale is committed when two or more persons agree to possess cocaine for sale, with proof of the commission of an overt act by one or more of the parties to such agreement. (§§ 182, subd. (a)(1), 184.) Conspiracy requires a specific intent to agree and the specific intent to commit the offense which is the object of the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 599-600.) The jury was properly instructed in this case as to the elements of conspiracy to possess cocaine for sale (CALCRIM No. 415), as well as the elements of possession of a controlled substance for sale (CALCRIM No. 2302).
As given in this case, CALCRIM No. 415 provides as follows: “1. The defendant intended to agree and did agree with [one or more of] (the other defendant[s] to commit possession for sale of cocaine; [¶] 2. At the time of the agreement, the defendant and [one or more of] the other alleged member[s] of the conspiracy intended that one or more of them would commit possession for sale of cocaine; [¶] 3. (One of the) defendant[s] or (all) of them committed [at least one of] the following alleged overt act[s] to accomplish possession for sale of cocaine; [¶] 4. [At least one of these] overt act was committed in California.” The overt acts, alleged in the complaint, alleged: Overt Act One—a surveillance system provided the same data feed to apartments two and four on November 9, 2005; Overt Act Two—on November 9, 2005, defendants and others were at the location containing cocaine, shotguns, scales, ammunition, and drug packaging; Overt Act Three—on November 9, 2005, defendants and others possessed cocaine in powder and base form on their persons or in the shared locations; and Overt Act Four—on November 9, 2005, defendants and others were active members of a gang whose criminal conduct included drug sales.
As given in this case, CALCRIM No. 2302 provides as follows: “1. The defendant [unlawfully] possessed a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substance’s nature or character as a controlled substance; [¶] 4. When the defendant possessed the controlled substance, (he/she) intended to sell it; [¶] 5. The controlled substance was cocaine; and [¶] 6. The controlled substance was in a usable amount.”
Conspiracy “does not require the commission of the substantive offense that is the object of the conspiracy.” (People v. Swain, supra, 12 Cal.4th at p. 600.) “It also is established that one may be guilty of conspiring to possess for sale or to transport a controlled substance without physically possessing it.” (People v. Morante (1999) 20 Cal.4th 403, 418.)
Possession of cocaine for the purpose of sale is not one of the legal elements of conspiracy to possess cocaine for sale. Although the sentence in count two should have been stayed under section 654, the conviction was not barred.
Determination of Sentencing Factors By The Trial Court
1. Upper Term Sentence
As to Darby and Phillips, the trial court selected count three (possession of cocaine base for sale) as the principal count, and as to Lee, count one (conspiracy to possess cocaine for sale) was designated as the principal count. The trial court imposed the upper term on each defendant’s principal term and the upper term on the gang enhancement. At the sentencing hearing, the trial court found each defendant deserving of an upper term sentence based on a variety of factors, including his criminal history which showed increasingly serious or numerous convictions.
Each defendant contends the trial court’s imposition of the upper term for the principal count and enhancement violated his federal constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because there was no jury finding beyond a reasonable doubt of the aggravating factors relied upon by the court. We affirm in accordance with our Supreme Court’s recent opinion in People v. Black (2007) 41 Cal.4th 799 (Black II).
In Cunningham v. California (2007) __ U.S. __ [ 127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), the United States Supreme Court disagreed with our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) and held “California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence.” (Black II, supra, 41 Cal.4th at p. 805.) Subsequently, Black II made it clear that there is no violation of the constitutional jury trial right as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and its progeny. (Black II, supra, 41 Cal.4th at p. 812.)
Accordingly, consistent with federal Supreme Court precedent, a sentencing court’s finding of criminal history as an aggravating circumstance renders a defendant eligible for the upper term sentence. (Black II, supra, 41 Cal.4th at p. 812.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender’s sentence.’” (Id. at p. 818.)
Moreover, numerous decisions from other jurisdictions have interpreted the federal Supreme Court’s recidivism exception “to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black II, supra, 41 Cal.4th at p. 819, fn. omitted.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 819, fn. omitted.)
Pursuant to Black II, we hold that defendants were statutorily eligible for the upper term as to the charged offenses and gang enhancement based upon the recidivism factors relied upon by the trial court. (Black II, supra, 41 Cal.4th at p. 820.) There was no Sixth Amendment violation.
2. Consecutive Sentences
The trial court ordered defendants’ sentence for each gang enhancement to run consecutive to the count it was attached to and ordered the sentences on counts four and five to run consecutive to the sentence on the principal count. Darby and Lee contend the imposition of consecutive sentences pursuant to section 669 was based on facts not found by a jury and violates their constitutional rights to a jury trial and due process under the reasoning of Cunningham. The California Supreme Court has twice held that Cunningham does not apply to consecutive sentencing imposed pursuant to section 669. (Black II, supra, 41Cal.4th at pp. 820-823; Black I, supra, 35 Cal.4th at pp. 1261-1264, disapproved on another ground in Cunningham, supra, __ U.S. at p. ___ [127 S.Ct. at pp. 868-871.) Those decisions are binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Fees and Penalties
The trial court imposed victim restitution fines (§ 1202.4, subd. (b)(1)) of $10,000 for Lee, $2,400 for Darby, and $5,000 for Phillips, matching parole revocation fines (§ 1202.45), and suspended the parole revocation fines. The trial court imposed a $20 court security assessment on each defendant for each count of conviction (§ 1465.8, subd. (a)(1)). The trial court imposed a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)) on Darby on count three, on Lee on count one, and on Phillips on count three.
The $50 lab fee imposed on Lee for his conviction in count one, conspiracy to possess cocaine for sale, was improper. (People v. Vega (2005) 130 Cal.App.4th 183, 193-195.) It was also improper to fail to impose the $50 lab fee on each defendant for each conviction listed in Health and Safety Code section 11372.5, subdivision (a). Additional $50 lab fees must be imposed on Lee for his convictions in counts two, three, and four. Additional $50 lab fees must be imposed on Darby and Phillips for their convictions in counts two and four. (Health & Saf. Code, § 1372.5, subd. (a).)
For their convictions in counts two, three, and four, all defendants must be assessed surcharges of $10 under section 1465.7, penalties of $50 under section 1464, subdivision (a), assessments of $35 under Government Code section 76000, and state court construction penalties of $15 under section 70372, subdivision (a). (People v. McCoy (Nov. 14, 2007, B198031) __ Cal.App.4th __ [2007 Cal.App.Lexis 1857 at pp. 5-22]; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457; People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; § 70372, subd. (a), as amended by Sen. Bill No. 425 (2007-2008 Reg. Sess.) § 2.)
As the Legislature intended Senate Bill No. 425’s amendment to Government Code section 70372 to reflect and clarify that statutory provision and not revise it, the legislation applies to the present case. (People v. McCoy, supra, __ Cal.App.4th at p. ___ [2007 Cal.App.Lexis 1857 at pp. 15-20].)
DISPOSITION
The judgment as to Darby is amended as follows: a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count two and the concurrent sentence on count two is stayed; a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count three; and a $50 lab fee (Health & Saf., Code, § 11372.5, subd. (a)), a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count four.
Regarding defendant Lee: the $50 lab fee (Health & Saf. § 11372.5, subd. (a)) imposed in connection with count one is stricken; a $50 lab fee (Health & Saf. § 11372.5, (subd. (a)), a $10 surcharge (section 1465.7), a $50 penalty (section 1464, subd. (a)), $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count two; a $50 lab fee (Health & Saf., Code, § 11372.5, subd. (a)), a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count three; and a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count four.
Regarding defendant Phillips: a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count two and the concurrent sentence on count two is stayed; a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count three; and a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), a $10 surcharge (§ 1465.7), a $50 penalty (§ 1464, subd. (a)), a $35 assessment (Gov. Code, § 76000), and a $15 state court construction penalty (Gov. Code, § 70372, subd. (a)) are imposed in connection with count four.
The trial court is to insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
We concur: TURNER, P. J., MOSK, J.