Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR214725.
STEIN, Acting P. J.
Lawrence Hayes was convicted of four counts of selling rock cocaine. (Health & Saf. Code, § 11352, subd. (a).) The court also found true allegations that defendant had two prison term priors (Pen. Code, § 667.5, subd. (b)), and an allegation that he had one prior conviction that qualified as a strike, under the Three Strikes Law (§§ 1170.12, subds. (a)–(d); 667, subds. (b)–(i)).
Further statutory references are to the Penal Code unless otherwise stated.
FACTS
In January 2004, the Fairfield police department conducted a “buy/walk” program, in which undercover investigators made purchases of drugs from sellers in a high-crime area, but did not immediately arrest them, to avoid tipping off other dealers that an undercover operation was in progress. A “buy/walk” program is used to build cases and gather evidence for search warrants of a suspect’s home.
During the month of January 2004, undercover officers made four purchases from defendant: On January 8, 2004, Investigator Alvarez contacted defendant in a parking lot of a high-crime area and bought $20 worth of rock cocaine. Later that day another officer photographed defendant, but did not arrest him. On January 15, Alvarez went to the same area, and asked defendant if he could “hook [him] up” again. Defendant removed two individually wrapped packages from his pocket that Alvarez purchased for $20. On January 29, 2004, Investigator West contacted defendant and asked for a “20.” Defendant sold him two small rocks of cocaine. The next day, Detective Gonzalez approached defendant and another man, and asked for marijuana or cocaine. Defendant handed something that appeared to be cocaine to the other man, who handed it to Gonzalez. Gonzalez paid for it, but did not see the man give the money to defendant. A gas chromatography test established that all the rocks exchanged in these transactions contained cocaine.
At sentencing, the court denied defendant’s motion to strike the allegation of a prior conviction under the Three Strikes Law. The court sentenced him to the middle term of four years on count one, doubled to eight under the Three Strikes Law. On the remaining counts the court imposed consecutive terms of two years eight months, which was double one-third the middle term. It suspended the terms for the prior prison term enhancements.
DISCUSSION
I.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant first contends that the court abused its discretion in denying his Romero motion to strike his 1996 conviction for first degree burglary. He contends the court abused its discretion because the 1996 conviction was remote, the only other felony conviction he had was a 1997 conviction for cocaine possession, for which he was sentenced to the low term, and the current convictions did not involve violence and were victimless crimes. He also notes that he had obtained a G.E.D., was attending a computer class at junior college, was sometimes gainfully employed, and voluntarily participated in the Life Skills Program while in county jail.
The Three Strikes Law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm.” (People v. Carmony (2004) 33 Cal.4th 367, 378.) The factors the court must consider in deciding whether to strike a prior conviction include “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) In the absence of an affirmative showing to the contrary, this court presumes the trial court considered all of the relevant factors. (People v. Myers (1999) 69 Cal.App.4th 305, 310) and will reverse the denial of a motion to strike only if the defendant demonstrates the decision was irrational or arbitrary. (People v. Superior Court (Alvarez) 14 Cal.4th 968, 977.)
In denying the motion the court gave the following explanation:
“The court doesn’t believe that Mr. Hayes is outside the statutory scheme. He’s got the prior convictions, he’s been in and out of prison, and had no less than one, two, three, four, five—six violations on parole, and here he is, stands convicted of . . . four sales of illicit substances over almost three weeks.
“There’s nothing that causes the Court to believe that—he’s not exactly the type of individual that the voters of his state had in mind, so that request is denied.”
The court was well within its discretion to deny the motion for the stated reasons. The 1996 conviction was not too remote, especially in light of the fact that it was followed by a continuing pattern of criminal activity, including another felony conviction for cocaine possession, and multiple probation or parole violations. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) His current convictions were not for violent offenses, but they involved repeated criminal acts over a short period of time, and his record established a consistent pattern of criminality such that the court reasonably concluded he did not fall outside the spirit of the Three Strikes Law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
II.
Consecutive Sentences
Defendant next contends that the court abused its discretion by imposing consecutive sentences on counts two, three and four because it may not have applied the correct standard in determining that consecutive standards were mandatory, and failed to exercise its discretion to impose concurrent terms.
Under the Three Strikes Law consecutive sentences are mandatory “[i]f there is a current conviction for more than one felony count not committed on the same occasion and not arising from the same set of operative facts.” (§ 667, subd. (c)(6), italics added.) “Not committed on the same occasion” means “not committed within close temporal and spatial proximity of one another.” (People v. Lawrence (2000) 24 Cal.4th 219, 233.) “Not arising from the same set of operative facts” is construed as “not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.” (Ibid.)
If consecutive sentences are not mandatory, the court may exercise its discretion based on the factors set forth in California Rules of Court, rule 4.425. One of the factors the court may consider in deciding whether sentences should be concurrent or consecutive is whether “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Rule 4.425(a)(3).)
All references to rules are to the California Rules of Court.
At the sentencing hearing the court explained its decision to impose consecutive sentences as follows: “Not only does the Court find that these offenses took place at different places, at different times, but pursuant to the Penal Code, the court is to impose the maximum sentence, including consecutive sentences, if appropriate, and the Court does so.”
Defendant concedes that his current offenses were not committed on “the same occasion.” Nonetheless, he argues that because the court made no express finding as to whether the offenses arose out of “the same set of operative facts,” it may have mistakenly concluded that consecutive sentences were mandatory based only on a finding that the crimes were not committed “on the same occasion.” He further contends that the offenses did arise from the same set of operative facts, because they involved the same type of conduct, (i.e., selling $20 worth of cocaine) in the same general location. He concludes that since consecutive sentences are mandatory only if the court finds both that the offenses were not committed on the same occasion and that they did not arise from the same set of operative facts (§ 667, subd. (c)(6)), a remand is necessary to permit the court to exercise its discretion to decide whether concurrent or consecutive sentences are appropriate based upon the factors specified in rule 4.425.
The contention is without merit for several reasons. First, “[t]he very settled rule of appellate review is a trial court’s order/judgment is presumed to be correct[;] error is never presumed.” (People v. Davis (1996) 50 Cal.App.4th 168, 172.) We therefore must assume the court was aware of the relevant legal principles, and that it applied them, unless the defendant affirmatively demonstrates error on the face of the record. (Ibid.) The mere fact that the court did not recite the phrase “same set of operative facts” in explaining its sentencing decision does not affirmatively demonstrate it was unaware of the legal standard for mandatory consecutive sentences. We construe the court’s statement of reasons to mean it found consecutive sentences were mandatory under “the Penal Code,” a shorthand reference to section 667, subdivision (c)(6), and that it would, in any event, impose consecutive sentences based upon the factors in rule 4.425, specifically that the crimes occurred “at different places, at different times.”
Second, even if defendant had shown that the court did not understand it had discretion to impose concurrent terms if the offenses arose out of the same set of operative facts, no remand would be necessary because the court could not reach any other conclusion but that the offenses did not arise out of the same set of operative facts. Defendant asserts that because the offenses involved the same type of conduct, i.e., selling $20 worth of cocaine to an undercover agent, in the same general location, the offenses arose out of the same set of operative facts. “ ‘[A]rising from the same set of operative facts,’ means ‘sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.’ ” (People v. Lawrence, supra, 24 Cal.4th at p. 233) “ ‘[W]here the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime.’ ” (Id. at p. 232, quoting with approval People v. Durant (1999) 68 Cal.App.4th 1393, 1405-1406.) Thus, for example, in People v. Durant, a defendant subject to sentencing under the Three Strikes Law committed two attempted burglaries and one completed burglary on the same day, in the same housing complex. The Court of Appeal held it was error for a trial court to conclude the crimes arose out of the same set of operative facts. (Id. at pp. 1405-1406.) The court explained that the crime of burglary is complete when there is an entry into a structure with felonious intent, and therefore “the commission after the first burglary of a crime or burglary of another structure necessarily will arise out of different operative facts than those underlying the original offense.” (Id. at p. 1406.) Similarly, here, defendant was convicted of four sales of cocaine, on January 8, 15, 29, and 30. The elements of each sale were completed when the cocaine was exchanged for money. There is no factual nexus between the distinct sales necessary to prove the elements of the subsequent offenses, and therefore the commission of each subsequent sale arose out different operative facts. Therefore the claimed error with respect to the court’s understanding of the standard for mandatory consecutive sentences would necessarily be harmless because the only conclusion the court could reach is that the offenses were not committed on the same occasion, and did not arise from the same set of operative facts.
Third, a remand is also unnecessary because, as we construe the court’s remarks, it held that even if it had discretion to impose concurrent terms, it would impose consecutive terms based upon the factors set forth in rule 4.425, giving particular weight to the fact that the crimes were committed at different times, or separate places. (Rule 4.425(a)(3).)
As a separate ground for challenging the imposition of consecutive sentences, defendant asserts that the trial court violated his constitutional right to a jury trial by imposing consecutive sentences based upon facts not found by the jury. In People v. Black (2007) 41 Cal.4th 799 (Black II) our Supreme Court held that Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856], does not require that a jury determine facts used to decide whether to impose consecutive terms. (Black II, supra, at p. 821.) The court in Black II reiterated that, as it had reasoned in People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I), the jury’s verdict finding the defendant guilty of two or more crimes, by itself, was enough to authorize consecutive sentences for each offense. Whether the defendant actually should serve consecutive sentences is a “ ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense . . . .’ ” (Black II, at p. 823.) We conclude, in view of Black II, that the judge’s decision to impose consecutive sentences did not violate defendant’s right to a jury trial.
III.
Sentence Manipulation
Defendant next contends that by waiting to arrest him until he had engaged in four separate sales of cocaine, the police engaged in “sentence manipulation,” in violation of his state and federal due process rights. He asserts that the sentence manipulation warrants concurrent sentences, or striking the convictions with respect to the three sales that followed the first undercover purchase from defendant.
“[U]nder the theory of sentencing manipulation, as it is usually defined by the federal courts discussing the concept, a defendant’s sentence should be reduced if law enforcement officials, for the purpose of increasing the defendant’s sentence, engaged in conduct that was so outrageous or extraordinary as to violate the defendant’s right to due process of law.” (People v. Smith (2003) 31 Cal.4th 1207, 1216-1217 (Smith).) In Smith, our Supreme Court disapproved “of the less rigorous test of sentencing manipulation adopted by the Court of Appeal—that the allegedly manipulative conduct has ‘no legitimate law enforcement purpose but [was undertaken] solely to maximize the defendants’ sentence.’ Were the doctrine of sentencing manipulation to be adopted in California, the predicate conduct should be truly outrageous.” (Id. at p. 1212.) The court, however, found it was unnecessary to decide “whether the doctrine of sentencing manipulation should be adopted in California” because the conduct of the undercover officer did not meet the more rigorous standard. (Ibid.)
We also need not reach the broader question whether the doctrine of sentence manipulation applies, because the conduct defendant complains of would not, in any event, meet the standard of “outrageous” conduct. In Smith, supra, 31 Cal.4th 1207, the court rejected the contention that an undercover sting constituted “outrageous conduct” merely because the undercover officers asked the defendant to steal from drug dealers a quantity of drugs that was large enough to trigger a 25-year enhancement. In the course of defining “outrageous conduct” it cited a federal decision, which held that a “ ‘defendant cannot make out a case . . . simply by showing that the idea originated with the government or that the conduct was encouraged by it [citation], or that the crime was prolonged beyond the first criminal act [citation], or exceeded in degree or kind what the defendant had done before. [Citation.] What the defendant needs in order to require a reduction are elements like these carried to such a degree that the government’s conduct must be viewed as “extraordinary misconduct.” [Citation.]’ ” (Id. at p. 1222, first italics added.) Defendant is unable to identify any misconduct beyond the fact that the police did not arrest defendant after the first sale, and that the delay ultimately failed to lead to a search of his home, or discovery of additional evidence. If such conduct were deemed “outrageous” it would eliminate the use of “buy/walk” undercover operations because they, by definition, entail not arresting a defendant after an initial buy. There is no evidence that the police delayed in arresting defendant for anything other than a legitimate law enforcement purpose, i.e., to gather evidence, and to avoid tipping off other dealers that an undercover operation was ongoing in their area. That, in defendant’s view, the operation was not highly productive simply does not support an inference of police misconduct. As did the court in Smith, we conclude that the “conduct of the police here was not overreaching by any reasonable standard.” (Id. at p. 1221.)
IV.
Restitution Amount
Defendant next argues that the court abused its discretion by imposing a restitution fine in the amount of $10,000 pursuant to section 1202.4, subdivision (b) and a like amount under section 1202.45. Defendant contends the trial court abused its discretion by imposing a restitution fine of $10,000 because his offenses were not very serious, and he had no ability to pay. He also argues that the fine is unconstitutionally excessive because it is disproportionate to the offenses.
Defendant was on notice that this amount might be imposed, because the probation report recommended the imposition of a $10,000 fine, yet he did not object to the restitution amount in the trial court. By failing to object below, he has waived any challenge to the restitution amount on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-353; People v. Forshay (1995) 39 Cal.App.4th 686, 689.) In any event, the amount of the fine imposed was within the court’s discretion. (§ 1202.4, subd. (b)(1).) It is always within the court’s discretion to follow the statutory recommendation of $200 multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted, which in this case would have resulted in a fine in excess of $10,000. (§ 1202.4, subd. (b)(2).) Defendant’s suggestion that the fine fails to take into account the relative seriousness of his offenses is incorrect, because the statutory formula uses the number of years a defendant is ordered to serve and the number of counts of which he is convicted as a gauge of the seriousness of the offenses. The statute places the burden of showing inability to pay on the defendant (§ 1202.4, subd. (d)), who, in this case, did not present any evidence of inability to pay. Where, as here, a defendant adduces no evidence of inability to pay, the trial court may presume he is able to pay, and the record need not contain evidence of defendant’s ability to pay. (People v. Romero (1996) 43 Cal.App.4th 440, 448-449.) The fine therefore was proportionate to the four offenses, and within the court’s discretion.
Defendant’s assertion that counsel rendered ineffective assistance of counsel by failing to object is unavailing because we cannot find on this record that it is reasonably probable that, had trial counsel objected, he could have presented evidence that would have convinced the trial court to impose a lesser restitution fine. Defendant therefore fails to demonstrate prejudice, a necessary element of a claim of ineffective assistance of counsel. (See People v. Price (1991) 1 Cal.4th 324, 440.)
V.
Correction of Judgment
Defendant contends that the court should have ordered the two section 667.5, subdivision (b) enhancements be stricken, instead of ordering at the sentencing hearing, and in a minute order, that the sentences be suspended. (See People v. Bradley (1998) 64 Cal.App.4th 386, 391; People v. Irvin (1991) 230 Cal.App.3d 180, 191-192.) The abstract of judgment does not list these enhancements, which is consistent with the court’s intent to strike them. To avoid future confusion, defendant asks this court to direct the trial court to correct the minute order to state that the section 667.5 enhancements are stricken. The Attorney General concedes the error.
The Attorney General also asks that the abstract of judgment be corrected to state defendant was convicted of four counts of sale of a controlled substance, instead of one count of conspiracy to sell rock cocaine and three counts of sale of a controlled substance.
CONCLUSION
The trial court is directed to correct the sentencing minute order and abstract of judgment to show that the section 667.5 subdivision (b) enhancements were stricken, and that defendant was convicted of four counts of violating Health and Safety Code section 11352, subdivision (a). As corrected, the judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.