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People v. Durham

Court of Appeals of California, Fifth District.
Nov 13, 2003
No. F040592 (Cal. Ct. App. Nov. 13, 2003)

Opinion

F040592.

11-13-2003

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY DURHAM, Defendant and Appellant.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Armand R. Feliciano, Deputy Attorneys General, for Plaintiff and Respondent.


Appellant Michael Anthony Durham was convicted by a jury of two counts of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and one count of transportation of a controlled substance (Health & Saf. Code, § 11352). The jury also found several enhancement allegations true. The court sentenced appellant to a total term of 12 years and 8 months and imposed fines under Penal Code sections 1202.4 and 1202.45.

All statutory references are to the Penal Code unless otherwise indicated.

DISCUSSION

I.

A.

Based upon hypothetical questions posed by the prosecutor that mirrored the facts presented in the prosecutions case-in-chief against appellant, Officer Johnson, the prosecutions expert in cocaine base and its possession for use and for sale, testified that, in his opinion, the hypothetical person possessed the hypothetical cocaine base for the purpose of sale. The following questions, answers, and colloquy are included in the record of Johnsons testimony on redirect by the prosecutor:

"[PROSECUTOR:] In the last hypothetical that I offered ... and its all fashioned around the events of January twenty-second, could we include in that hypothetical the statement by the suspect that, `Look, I smoke rock, but I dont sell it.

"[JOHNSON:] Yes, it does — I didnt factor that in, but now that you brought it back up, that is something I would consider only because youd be surprised how many times when you do stop somebody that has narcotics possessed for sale, the first thing theyll say is, `I use it, but I dont sell it, because theres a ... significant[ly] larger amount of punishment for the possession for sales.

"[DEFENSE COUNSEL]: Objection.

"THE COURT: Overruled.

"[DEFENSE COUNSEL]: May I be heard, Your Honor?

"THE COURT: Overruled.

"[DEFENSE COUNSEL]: Can we come up to side bar?

"THE COURT: No. Statements in.

"[DEFENSE COUNSEL]: Id ask that it be stricken.

"THE COURT: Denied.

"[DEFENSE COUNSEL]: Well, then, I would ask the Court to consider declaring a mistrial.

"THE COURT: Denied. Continue, Mr. [Prosecutor]." (Italics added.)

Though no ground for objection was stated by defense counsel, the trial court later, outside the presence of the jury, permitted defense counsel to make a record of the objection. Defense counsel made it clear at this session that her objection was limited to Johnsons statement about the greater punishment for possession for sale and was based upon the irrelevance of evidence of punishment. (Evid. Code,+ § 350; People v. Rains (1999) 75 Cal.App.4th 1165, 1170; see Shannon v. United States (1994) 512 U.S. 573, 579.) In addition, the statement about punishment is the only aspect of Johnsons testimony challenged by appellant on this appeal. We will consider the relevance objection to that statement to have been properly and timely made in the trial court. (Evid. Code, § 353.)

B.

Even if it was error for the trial court to admit and refuse to strike, and to fail to grant a mistrial based upon, Johnsons testimony that suspects often claim cocaine in their possession is for personal use rather than for sale because of the more significant punishment for the latter offense, any such error was harmless. (People v. Champion (1995) 9 Cal.4th 879, 919 [erroneous admission of evidence subject to Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standard of prejudice]; People v. Welch (1999) 20 Cal.4th 701, 749-750 [Watson standard applies to denial of mistrial based upon the erroneous admission of evidence (hearsay)]; People v. Rains, supra, 75 Cal.App.4th at p. 1170.)

The record evidence, entirely apart from Johnsons statement about punishment, overwhelmingly established that appellants possession of cocaine base on October 10 and January 22 was for the purpose of sale rather than personal use. The evidence demonstrated that on October 10, at about 1:00 a.m., appellant was standing face-to-face with a female at an intersection known for cocaine sales and located across town from appellants home. When appellant saw the police, he made a tossing motion with his hand. On the ground next to appellant, the police found a baggie containing 16 pieces of cocaine base weighing 3.74 grams. Appellant, who was unemployed, carried $218 in small denominations separated into different pockets, including a separate $20 bill.

The record evidence also established that, on the afternoon of January 22, appellant was back near the same intersection, sitting in a car, making hand-to-hand contact with Jones. Jones grabbed something and, when he saw the police, put something into his pocket, walked behind a tree, and put his hand back into his pocket. A small amount of cocaine base — 0.39 grams — was found behind the tree, whereas 4.51 grams of cocaine base was found behind the passenger seat in appellants car, where he had attempted to reach while the police were occupied with Jones. Appellant carried a rock cocaine pipe, a pager, $250 in one pocket, and a single $20 bill in another pocket. Appellant was still unemployed and living across town.

On top of all this direct evidence, Johnsons unchallenged expert testimony described the many factors he had found, in his years of experience, to typically characterize cocaine sellers and distinguish them from cocaine users. He stressed that the important indicia of possession for sale were a large amount of cocaine (more than 1 or 1.5 grams), a large amount of cash (in small denominations and often separated), and the suspects location (particularly in a three-block area known for cocaine sales). In both of appellants offenses, these three circumstances conjoined, in addition to various other incriminating circumstances furnished by the evidence and highlighted by Johnson.

Against this wealth of incriminatory evidence of possession for sale, Johnsons short, almost afterthought remark regarding a cocaine sellers knowledge of the more significant punishment for sales did not likely constitute the weight which tipped the jury to find appellant guilty of the greater crime. And, as the trial court noted, the fact that there is a difference in punishment between the two offenses was probably within the common knowledge of most or all the jurors, and the idea that an apprehended suspect might admit to having committed a less serious crime probably would occur to most jurors. Moreover, the jurors were told that appellant was charged with two alternative crimes (e.g., possession for sale and possession for use) for each of the three offenses, and it is not unlikely that the jurors figured out that one was more serious in terms of punishment than the other. Finally, the trial court instructed the jury that it must not consider punishment in arriving at its verdicts. (CALJIC No. 17.42.) We must assume the jury followed this instruction. (People v. Callahan (1999) 74 Cal.App.4th 356, 372; People v. Williams (1995) 40 Cal.App.4th 446, 456; see also People v. Guiton (1993) 4 Cal.4th 1116, 1127 [an appellate courts prejudice assessment "should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision"].)

Appellant also appears to argue that the trial court erred by failing to amend CALJIC No. 17.42 so as to refer specifically to Johnsons testimony about punishment. However, appellant did not propose in the trial court any appropriate modification of the instruction; the contention was thus waived. (People v. Kelly (1992) 1 Cal.4th 495, 535-536; People v. Daya (1994) 29 Cal.App.4th 697, 714.)

We are satisfied that it is not reasonably probable the result of the trial would have been more favorable to appellant on either of the two counts at issue had Johnsons statement been excluded or stricken; necessarily, then, appellant was not prejudiced by the trial courts denial of the mistrial motion. (People v. Welch, supra, 20 Cal.4th at pp. 749-750.) We would also find the claimed errors harmless if the applicable standard of review were the "beyond a reasonable doubt" test of Chapman v. California (1967) 386 U.S. 18.

Appellant advances a variety of other grounds for objection to the admission of Johnsons statement about punishment, including improper expert opinion and violation of federal constitutional guarantees of due process and jury trial. No objection on any of these grounds was advanced in the trial court, so all such alternate contentions are waived. (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) Appellant acknowledges the waiver, but urges us to consider discretionarily all the grounds for objection raised in appellants briefs. (See People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173.) We decline.

II.

The trial court did not err in imposing two section 12022.1 "on bail" enhancements; we reject appellants request that we reconsider the case law that interprets section 12022.1 as permitting more than one such enhancement.

Section 12022.1 provides that a defendants sentence may be enhanced if he or she commits a felony (a secondary offense) while on bail for another felony (a primary offense). Here, appellants offenses on October 10 and November 11, for which he was on two separate bails, each constitute a primary offense, and the offense on January 22 constituted a secondary offense to each such primary offense. Under these circumstances, two on-bail enhancements are permitted. (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1262 [two on-bail enhancements permitted if defendant is released at different times on separate bail for two different primary offenses]; People v. Warinner (1988) 200 Cal.App.3d 1352, 1355-1356.)

III.

Neither section 12022.1 on-bail enhancement was properly a part of the subordinate term and therefore neither is subject to the one-third limitation of section 1170.1, subdivision (a).

Section 1170.1, subdivision (a), provides: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.)

Section 1170.1, subdivision (a) expressly states that the aggregate term for consecutive sentences is calculated by adding together the principal term plus the subordinate term (which is affected by the one-third limitation) plus the "applicable enhancements for prior convictions, prior prison terms, and Section 12022.1." (Italics added.) Thus, the very language of section 1170.1, subdivision (a) expresses the Legislatures intention that section 12022.1 on-bail enhancements must be added as a component of the aggregate term after the principal and subordinate terms have been calculated in accordance with the other provisions of that section. On-bail enhancements, therefore, are not subject to the one-third limitation applied to subordinate terms.

In addition, the "specific enhancements" identified by section 1107.1 which are part of the subordinate term and thus subject to the one-third limitation are defined by section 1170.11 as "enhancements that relate to the circumstances of the crime." (& sect; 1170.11.) On-bail enhancements, however, have been described as enhancements that relate in great part to the nature of the offender — defendants status as a recidivist. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387, 401.) Section 1170.11 lists some of the specific enhancements that are subject to the one-third limitation, and includes sections "12022, 12022.2, 12022.3, 12022.4 ..." but — conspicuously — not section 12022.1.

Appellant cites People v. McClanahan (1992) 3 Cal.4th 860, but we do not see the relevance of this opinion. McClanahan in effect explained that the Legislature had made section 12022.1 enhancements exempt from the one-third limitation of section 1170.1, subdivision (a), but had not made them exempt from the double-the-base-term limitation of section 1170.1, subdivision (g). When section 12022.1 was enacted in 1982, "section 1170.1, subdivision (a), was amended to designate on-bail enhancements as part of the `aggregate term of imprisonment within the meaning of that section." Section 1170.1, subdivision (g), on the other hand, was not amended to exempt section 12022.1 enhancements from the double-the-base-term limitation, despite its various amendments to exempt other enhancements. (People v. McClanahan, supra, 3 Cal.4th at p. 865.)

IV.

Last, appellant correctly asserts that, because the case was consolidated for trial and sentencing, only one restitution fine under section 1202.4, subdivision (b) was permitted.

Section 1202.4, subdivision (b), provides that "[ i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (Italics added.)

Where charges are joined in a single accusatory pleading, or where charges in separate pleadings are consolidated so that the defendant is tried and sentenced in a single proceeding, it is error for the court to impose multiple section 1202.4 restitution fines. (People v. Ferris (2000) 82 Cal.App.4th 1272, 1277; People v. McNeely (1994) 28 Cal.App.4th 739, 743-744.) Cases that are jointly tried are effectively joined for the purposes of restitution fines even when separate informations are filed and separate case numbers are technically retained. (People v. Ferris, supra, 82 Cal.App.4th at p. 1277.)

Here, three cases were consolidated and the prosecution filed a single amended information containing all counts on which appellant was tried. The verdict forms all bore the same case number (244183). Most of the clerks documents, however, bore three different case numbers. For sentencing, three probation officers reports were prepared; each recommended imposition of a restitution fine. At sentencing, the trial court imposed a $2,000 restitution fine on count 5, the principal count, a $200 restitution fine on count 3, and a $200 restitution fine on count 1. The single abstract of judgment bore all three case numbers, but the number 244183 was circled. The abstract of judgment reflects imposition of a $2,400 restitution fine under section 1202.4, subdivision (b), and a $2,400 restitution fine under section 1202.45. A few days after the abstract was filed, the court clarified the abstract by explaining that the cases were consolidated for trial only, the charges were renumbered (as noted), and case number 244183 was the primary case and all documents should bear that number.

Section 1202.45 provides that "[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the persons parole is revoked." (Italics added.)

The trial court should have imposed only a single restitution fine because the cases were consolidated and jointly tried and sentenced. Although the abstract of judgment contains only a single blank for a restitution fine under section 1202.4, subdivision (b), and thus can be read as imposing a single $ 2,400 restitution fine (with a matching mandatory parole revocation fine under § 1202.45), the transcript establishes that the court imposed three separate restitution fines. (People v. Mesa (1975) 14 Cal.3d 466, 471 [oral pronouncement of sentence controls over abstract of judgment].) On remand the trial court shall reconsider the restitution fine and impose only a single section 1202.4 fine, with a matching mandatory parole revocation fine under section 1202.45.

V.

The People point out and we agree that appellants total term of imprisonment as stated on the abstract of judgment (11 years 4 months) does not agree with the trial courts oral pronouncement of sentence (12 years 8 months) as recorded in the transcript of the sentencing hearing. The transcript leaves no question as to the trial courts intended sentence, which it explained in detail. As noted above, a conflict between the judgment of conviction as orally pronounced by the court and that recorded in the minutes of the proceedings or abstract of judgment is presumed to be a clerical error in the clerks transcript, and the oral pronouncement controls. (People v. Mesa, supra, 14 Cal.3d at p. 471; People v. Chambers (2002) 104 Cal.App.4th 1047, 1050; see also § 1207 [recording of the judgment into the courts minutes is generally a clerical rather than judicial duty].)

The clerk incorrectly noted 8 months each for counts 1 and 3, for a total of 16 months, whereas the court imposed 16 months each (one-third of the 4-year term). This clerical mistake accounts for the 16 missing months.

DISPOSITION

The section 1202.4 and 1202.45 fines are vacated and the trial court is directed on remand to set new fines under these provisions in a manner not inconsistent with this opinion, and to prepare and distribute as appropriate an amended abstract of judgment which shall reflect, among other entries, the fines imposed on remand and the correct term of imprisonment of 12 years and 8 months. All other aspects of the judgment are affirmed.

WE CONCUR: Vartabedian, J. and Cornell, J.


Summaries of

People v. Durham

Court of Appeals of California, Fifth District.
Nov 13, 2003
No. F040592 (Cal. Ct. App. Nov. 13, 2003)
Case details for

People v. Durham

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY DURHAM, Defendant…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 13, 2003

Citations

No. F040592 (Cal. Ct. App. Nov. 13, 2003)