Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Riverside County, Riverside Super. Ct.. RIF123408, J. Thompson Hanks, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Alexis Hernandez guilty of one count of possession of methamphetamine (Health & Saf. Code, § 11377; count 9); one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 13), and one count of opening or maintaining a place to sell methamphetamine (Health & Saf. Code, § 11366; count 12). With respect to count 13, the jury found true the allegation that Hernandez committed the offense while released from custody in another case within the meaning of Penal Code section 12022.1. The jury also found codefendant, Zoila Nataran, guilty of nine counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a); counts 1-8, 10); one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 11); and one count of opening or maintaining a place to sell methamphetamine (Health & Saf. Code, § 11366; count 12).
Hernandez was charged with possession for sale of methamphetamine in counts 9 and 13, but the jury found him guilty of the lesser included offense of possession of methamphetamine on count 9.
All statutory references are to the Penal Code unless otherwise indicated.
Hernandez and Nataran raise numerous contentions on appeal. We find no reversible error and affirm the judgment of the trial court.
Hernandez also filed a petition for habeas corpus, which we deny by way of a separate order filed simultaneously with this opinion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
By information filed on February 17, 2006, the Riverside County District Attorney charged Hernandez with two counts of possession for sale of methamphetamine (Health & Saf. Code, § 11378; counts 9 and 13) and opening or maintaining a place to sell methamphetamine (Health & Saf. Code, § 11366; count 12). The information also alleged that Hernandez was out on bail when he committed the offense alleged in count 13. A jury found Hernandez guilty on counts 12 and 13, and guilty of the lesser included offense of possession of methamphetamine on count 9. The jury also found true the on-bail allegation as to count 13.
Nataran was charged with the sale of methamphetamine (Health & Saf. Code, § 11378; counts 1-8 and 10); possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 11); and opening or maintaining a place to sell methamphetamine (Health & Saf. Code, § 11366; count 12). The jury found Nataran guilty on all counts.
The trial court sentenced Hernandez to the midterm of two years on count 12. The court also imposed two consecutive eight-month sentences (one-third the midterm) on counts 9 and 13, and an additional two-year term for the on-bail enhancement, for a total sentence of five years four months.
The trial court sentenced Nataran to a total of seven years, which included the midterm of three years on count 1, four consecutive one-year (one-third the midterm) terms on counts 2, 3, 4, and 5, four concurrent three-year terms on counts 6, 7, 8, and 10, and two concurrent two-year terms on counts 11 and 12.
B. Factual background
On eight different occasions between March 15, 2005 and April 26, 2005, undercover police officers visited 2029 Patterson in Riverside and purchased methamphetamine. Officers began surveilling the property and initiated controlled "buys" at the Patterson location as a result of citizen complaints about heavy pedestrian traffic and possible drug sales at the residence.
On each occasion, detectives conducted the buys in a similar manner. An officer would be wired with a hidden video camera, travel to 2029 Patterson, and approach the rear of the main residence. On some occasions the officer would knock on a rear door, and at other times, the officer was greeted without having to knock. Each time, Nataran answered the door. When the detective gave her a $20 bill or asked for "a 20," she would give the officer a white plastic bindle that she would retrieve from an Altoids tin. After the exchange, the detective would proceed directly to a predetermined location to meet with other officers. At the predetermined location, an officer would perform a field test on the substance in the white bindle. On each occasion, the substance tested positive for methamphetamine. A criminalist later tested the substance in each of the bindles purchased from the Patterson location and confirmed that the substance was positive for methamphetamine in each case.
On the morning of May 12, 2005, an officer conducted an undercover buy from a man in a separate building located behind the residence at 2029 Patterson. After the exchange, the officer gave a signal for a RAID team, which had been waiting in the back of a U-Haul truck, to execute a search warrant for the property. While executing the search warrant, Detective James Simons found two Hispanic males on the property, in a shed that was being used as a bedroom. He found $1,778 under a mattress in that room, along with two plastic bindles, a letter, and two scales. The substances in the two bindles tested positive for methamphetamine.
Detective Randal Hecht searched the lower level of the front house, which had two bedrooms. Hecht found Hernandez, the only person in the front house, asleep in bed in the northwest bedroom. On the headboard of the bed in which Hernandez was sleeping, Hecht found .03 grams of methamphetamine, laid out in a line. Officers also found a citation issued to Hernandez by the City of Riverside, that showed the 2029 Patterson address, and paperwork from the Riverside Superior Court with Hernandez's name on it.
A criminalist later weighed this methamphetamine at less than .01 grams.
In the southwest bedroom, officers found a photograph of Jesus Malverde, who is, according to the police, "a patron saint of drug dealers." Officers also found a small black briefcase that contained empty baggies and a gram scale.
As the officers were conducting the search, a yellow pickup truck arrived at the house. Alfonso Hernandez was driving the truck, and Nataran was in the passenger seat. Officers directed Alfonso to get out of the vehicle and asked him whether he was carrying anything illegal. Alfonso said he did not have anything illegal on him, and agreed to allow an officer to search him and the vehicle.
Alfonso Hernandez was a defendant in the proceedings in the trial court, but is not a party to this appeal. We will refer to him by first name to avoid confusion with Alexis Hernandez, who is a party to this appeal.
The vehicle was not registered to Alfonso or Nataran.
A search of the truck yielded a "softball" size bag that contained 101 individual bindles of methamphetamine. The bag weighed 55.1 grams. The bag was found inside a tire jack compartment located behind the passenger seat.
After officers executed the search warrant and intercepted the vehicle Alfonso was driving, they conducted a reverse-sting operation from the residence. Undercover officers posed as sellers and sold methamphetamine to individuals who arrived at the property to purchase drugs. During the reverse-sting operation, officers arrested approximately 40 individuals.
Officers arrested Hernandez that day and charged him with violations of Health & Safety Code section 11366 (maintaining a place to sell controlled substances) and section 11378 (possession for sale of methamphetamine). Hernandez posted bail and was released from custody "on or about June 13."
On June 17, officers returned to 2029 Patterson with a second search warrant. As an undercover officer walked up the driveway, toward the back of the property, he made contact with an "elderly Hispanic female." He told her that he was "looking for drugs." The woman smiled and pointed to the rear door of the front house.
Officer Aceves knocked on the rear door. A man, identified as Leopoldo Garcia, came to the door. Aceves told the man he wanted to purchase "$20 worth of speed." The man pulled Aceves into the house through the doorway. After Aceves gave Garcia a $20 bill, Garcia pulled an infant's sock from his pocket and gave Aceves a bindle from the sock. Hernandez was standing to Aceves's right and watched the entire transaction. Hernandez and Garcia made eye contact during the exchange. Aceves secretly videotaped the transaction.
The RAID team then executed the second search warrant. Detective Knoffloch entered the front house and immediately detained Hernandez and another man. As he was searching the northwest bedroom, Knoffloch noticed a loose baseboard in the closet. When removed, the baseboard revealed a hidden area between the wall studs. In that hidden area, Knoffloch found a sock that contained 18 bindles of methamphetamine, as well as four separate rolls of $20 bills, totaling $400, bound with black rubber bands. The sock was not dusty or dirty. One hundred to two hundred black rubber bands were found inside a dresser in the bedroom.
III.
DISCUSSION
A. The trial court did not err with respect to Hernandez's convictions or his sentence
1. The trial court did not err in granting the motion to consolidate
Hernandez contends that the trial court abused its discretion when it granted the prosecution's motion to consolidate all of the various charges against him, as well as the case against Nataran.
We review the trial court's ruling with regard to consolidation for an abuse of discretion. (People v. Ochoa (1998) 19 Cal.4th 353, 408 (Ochoa).) "A court abuses its discretion when its rulings fall 'outside the bounds of reason.' [Citation.]" (Ibid.)
Section 954 governs consolidation and severance of different criminal charges, and provides in relevant part:
"An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
"Because consolidation ordinarily promotes efficiency, the law prefers it." (Ochoa, supra, 19 Cal.4th at p. 409.) "'Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.' [Citation.] Thus '[a] defendant can prevent consolidation of properly joined charges only with a "clear showing of prejudice" . . . .' [Citation.]" (Ibid.)
The "'propriety of a ruling'" on a motion to consolidate "'is judged by the information available to the court at the time the motion is heard.' [Citation.]" (Ochoa, supra, 19 Cal.4th at p. 409.) The information available to the trial court at the time the prosecution moved to consolidate in this case was that the charges involved the same class of crimes, i.e., offenses related to methamphetamine use and sales. Further, Hernandez cannot demonstrate error based on potential prejudice to him.
Hernandez claims that he was severely prejudiced by consolidation of his initial case with "the Natar[a]n matter." He contends that the case against him was "relatively weak" and that the prosecution sought consolidation in order to "bolster" the weak case against him. Specifically, he asserts that "[i]nforming a jury of [Nataran's] sales, along with the additional 55.1 grams of methamphetamine recovered from the truck, in all likelihood, would inflame any jury against [him]."
In making this argument, Hernandez presumes that this evidence would not have been admitted but for the fact that the cases were consolidated. However, evidence regarding the numerous methamphetamine sales that occurred at 2029 Patterson, as well as the delivery of drugs to that residence, would have been particularly relevant to the issue whether Hernandez was maintaining a place to sell methamphetamine. Evidence of the circumstances of this pattern of activity occurring at Hernandez's residence would be relevant to establish elements of this charged offense: "[A]lthough a single, isolated instance of criminal conduct does not reflect the requisite 'continuity in the pursuit of [the criminal] objective' [required for a conviction under section 11366] [citations], circumstances surrounding one criminal instance may fill the void." (People v. 25651 Minoa (1992) 2 Cal.App.4th 787, 799.) Because evidence of sales of methamphetamine by Nataran, and evidence concerning the recovery of 55.1 grams of methamphetamine in a truck arriving at the residence would have been admissible even if the trial court had denied the motion to consolidate, there can be no inference of prejudice. The trial court did not abuse its discretion in granting the prosecution's motion to consolidate.
2. The evidence was sufficient to support Hernandez's convictions
Hernandez contends that the evidence is insufficient to support the jury's findings that he possessed methamphetamine (count 9), maintained a place to sell methamphetamine (count 12), and possessed methamphetamine for sale (count 13).
In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
a. There is sufficient evidence to support the jury's verdict on count 9
Hernandez asserts that his conviction for possession of methamphetamine must be reversed because there is insufficient evidence that he possessed a usable amount of methamphetamine. One may not be convicted "when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." (People v. Rubacalba (1993) 6 Cal.4th 62, 66.) Hernandez relies on the testimony of criminalist Chantalle Clement, who testified that when she tested the methamphetamine found on the headboard in Hernandez's room on May 12, it weighed less than .01 gram. She testified that lab analysts consider a net weight of less than .01 gram to be "[r]esidue."
However, Detective Hecht testified that he recovered .03 grams of methamphetamine from the headboard that day. He further testified that, based on his experience and the fact that the methamphetamine "had been laid out in a nice, neat line where it would be able to be [ingested] by snorting it with a straw or other object," the amount he recovered from the headboard was "a useable amount." Further, Clement provided a reasonable explanation that would account for the discrepancy between the two weights: "[W]hen items are placed into a plastic bag, it is sometimes very difficult to get all of the powder or crystalline substance out of it." This testimony constitutes sufficient evidence to support the jury's implicit finding that Hernandez possessed a "useable" amount of methamphetamine on May 12, 2005.
b. There is sufficient evidence to support the jury's verdict on count 12
Hernandez next contends that his conviction for maintaining a place to sell or use methamphetamine must be reversed because there was insufficient evidence that he had the specific intent to sell, give away, or use methamphetamine on a repetitive or continuing basis.
Health & Safety Code section 11366 provides:
"Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any [specified] controlled substance . . . shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison."
"The elements of the opening-or-maintaining offense are that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance. [Citations.]" (People v. Hawkins (2004) 124 Cal.App.4th 675, 680 (Hawkins).) "[E]vidence of a single instance of drug use or sales at the house, without circumstances supporting a reasonable inference that the house was used for the prohibited purposes continuously or repetitively, does not suffice to sustain a conviction of the opening-or-maintaining offense. [Citations.]" (Id. at p. 682.)
According to Hernandez, "the evidence is clear" that he "never directly participated in any of the sales taking place during the period prior to the service of the May 12, 2005 search warrant," and that there is no evidence that he was even at the residence during any of those sales. He claims that his "mere presence in the northwest bedroom" and the citation with his name and the Patterson address on it, were "insufficient to establish he was maintaining or opening a place" to sell methamphetamine.
Contrary to Hernandez's assertions, there was ample evidence to support the inference that Hernandez was maintaining 2029 Patterson as a place to sell drugs. First, there was abundant evidence that established that 2029 Patterson was being maintained as a place to sell methamphetamine. Between March 15 and May 12, 2005, undercover officers purchased methamphetamine on eight occasions at that location. The drugs that were sold to undercover officers were packaged in the same way each time. A truck that arrived at the house on May 12 contained 101 bindles of methamphetamine that were packaged in a manner similar to the drugs the officers had previously purchased there. Inside the house, officers found baggies and a gram scale, as well as large sums of cash. Additionally, when officers set up the reverse sting operation, more than 40 people seeking to purchase methamphetamine, arrived at the house in a five-hour period. The jury also heard from at least four officers who testified that based on their experience, knowledge and training, they believed 2029 Patterson was being used as a place to sell methamphetamine.
There was also sufficient evidence from which the jury could infer that Hernandez was living at 2029 Patterson. On May 12, 2005, Hernandez was found asleep in bed in one of the bedrooms in the front house. The bedroom contained men's clothing. Officers found court documents with Hernandez's name on them and a police citation showing Hernandez's home address as 2029 Patterson in the bedroom. The police citation was dated March 8, 2005, which was approximately a week before undercover officers first purchased methamphetamine at the house. From this evidence, the jury could have concluded that 2029 Patterson was Hernandez's home, at least during the time period in which undercover officers repeatedly purchased methamphetamine at the home.
The jury also could have reasonably inferred from all of the circumstances, which included the numerous drug sales that took place at the home over a two-month period, the more than 40 individuals who arrived at the home to purchase methamphetamine on May 12, the unconcealed briefcase that contained a gram scale and baggies and a small "shrine" to Jesus Malverde in one of the two bedrooms in the residence, as well as Hernandez's personal possession of methamphetamine, that Hernandez knew about the drug sales that were being conducted out of 2029 Patterson, that he was involved in the drug selling enterprise, and that he intended that his home be used as a place to repeatedly sell methamphetamine.
When asked by a defense attorney, "What is the shrine to Jesus Malverde, based upon your training and experience?" Officer Hecht responded, "It's basically a patron saint of drug dealers. [In] [n]umerous high-level narcotic investigations involving Mexican nationals, [it is] very common [that] they will have a photo of him on their person, in their house. A lot of times there will be a picture of him in the house with candles. I think it's sort of a saint, they believe a saint for drug dealers who will keep them from getting arrested basically."
c. There is sufficient evidence to support the jury's verdict on count 13
Hernandez contends that there is insufficient evidence to support his conviction for possession of methamphetamine for sale. Specifically, Hernandez asserts that there was no evidence indicating that he exercised dominion and control over the bedroom where the 18 bindles of methamphetamine were found hidden behind a baseboard on June 17, 2005. He notes that officers found "[n]o paperwork or other indicia of appellant's dominion and control over" the northwest bedroom where the 18 bindles were found on that date. Hernandez suggests that someone else may have moved into that bedroom after his arrest on May 12, noting that a dresser that had not been in the room on May 12 was found in the room on June 17. Hernandez further suggests that the 18 bindles in the bedroom belonged to Garcia, not Hernandez.
"'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]' [Citations.]" (People v. Harris (2000) 83 Cal.App.4th 371, 374.) The possession need not be exclusive. (People v. Eckstrom (1986) 187 Cal.App.3d 323, 331 (Eckstrom).) "'[Possession] may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.]' [Citation.]" (Ibid.) "Actual possession of the drug is not required. Constructive possession may be proven by circumstantial evidence. [Citation.] Therefore, all that need be proven is that the contraband was deposited in a place under defendant's possession and control. [Citations.]" (People v. Allen (1967) 254 Cal.App.2d 597, 603.) "All elements of the offense may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citation.]" (Eckstrom, supra, 187 Cal.App.3d at p. 331.)
The prosecutor presented two different theories to support a conviction on count 13. One theory was that the 18 bindles belonged to Hernandez, and that he was in direct control of them. The other theory was that Hernandez was guilty of possession for sale as an aider and abettor. Under the aiding and abetting theory, the prosecution argued that (a) the drugs Garcia sold were packaged identically to the drugs that were found behind the baseboard, indicating that the drugs Garcia sold and the drugs found in the bedroom were from the same "stash," and (b) Hernandez aided and abetted Garcia as he watched Garcia sell the drugs to an undercover officer. Hernandez challenges only the sufficiency of the evidence with regard to the theory of direct liability, not the theory of liability as an aider and abettor. We conclude that there is sufficient evidence to support a conviction under either theory.
Hernandez argues that there is insufficient evidence that he was still living in the northwest bedroom on June 17, and that the evidence suggests that someone else had moved into that bedroom after Hernandez's May 12 arrest. In support of this argument, Hernandez asserts that "there was nothing located in the northwest bedroom . . . to suggest he occupied that room on June 17, 2005 following his release from custody." He notes that officers found no additional paperwork or "other indicia of appellant's dominion and control over that room," and that on June 17, the room contained a dresser that officers did not remember seeing in that room on May 12. However, the question is not whether there is evidence that would support a finding that the defendant is innocent, but is, rather, "whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Towler (1982) 31 Cal.3d 105, 118.) "Thus, even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant's innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.]" (Ibid.)
A review of the entire record in the light most favorable to the judgment reveals sufficient evidence to support the jury's finding of guilt. The jury heard that officers found Hernandez's personal documents in that bedroom a month earlier, and that on June 17 officers found no papers or other indicators that someone other than Hernandez had taken exclusive dominion over the northwest bedroom. From these facts, the jury could have inferred that Hernandez continued to exercise dominion and control over the northwest bedroom when he was arrested on June 17. Additionally, when officers entered the residence to arrest Garcia and Hernandez after the June 17 buy, they found both men in the northwest bedroom. The jury could have reasonably determined that both Hernandez and Garcia had immediate access to the room and that they exercised joint control over the room.
There is also sufficient evidence to support Hernandez's conviction for possession for sale, on an aiding and abetting theory. There was evidence that Hernandez stood inside the home and oversaw the methamphetamine sale transaction between Garcia and an undercover officer. Testimony established that the bindle Garcia sold to the officer was packaged in the same way as the 18 hidden bindles had been packaged, leading to the reasonable inference that Garcia exercised control over the 18 bindles. The jury could have inferred that Hernandez knew that Garcia was selling methamphetamine, since Hernandez and Nataran had been arrested on methamphetamine related charges just over a month before the June 17 transaction. The jury also heard that Hernandez made eye contact with Garcia during the transaction. Officer Aceves testified that he had taken part in other undercover drug transactions where a third person watched over the transaction, and noted that "[i]t's very common to have on both sides other people there to protect either your drugs and/or money because there's a lot of theft among drug transactions." The jury was free to consider Officer Aceves's expertise and knowledge of drug transactions and, based on all of the circumstances of this particular transaction, to have concluded that Hernandez was well aware that Garcia was selling methamphetamine, that Hernandez was involved in the drug dealing that was taking place in his residence, and that he promoted, encouraged or instigated Garcia's commission of the crime of possession for sale.
3. The trial court did not err in refusing to reduce Hernandez's convictions on counts 9 and 12 to misdemeanors
Hernandez asserts that the trial court erroneously failed to reduce his convictions on counts 9 and 12 to misdemeanors pursuant to section 17, subdivision (b). Hernandez suggests that the trial court did not engage in a sufficient "'fact-bound inquiry taking all relevant factors, including defendant's criminal past and public safety, into due consideration,'" and also failed to create a record reflecting such an inquiry. Hernandez argues that if the trial court had engaged in the proper inquiry, it would have concluded that his conviction for possession of methamphetamine did not "rise to the felony level," in view of his minimal criminal history and the limited amount of methamphetamine found. Hernandez asserts that his "participation . . . in th[e] crime [of maintaining a place to sell methamphetamine] was minimal at best."
Section 17, subdivision (b) provides:
Prior to sentencing, Hernandez's attorney requested that the court reduce his convictions on counts 9 and 12 to misdemeanors. The following colloquy occurred:
"The Court: Well, I'll tell you, though. The way I remember considerations of 17(b) motions is does the person at this time or within the foreseeable future face the possibility of incarceration at the state level, and I think that's a valid way to consider a 17(b) motion. And I think if we approach it from that point of view, yes, he[] certainly does face the possibility –
"Mr. Firetag: Right. Right.
"The Court: I understand your strategy. If you could avoid some time on the out on bail –
"Mr. Firetag: Right.
"The Court: -- but I don't think this defendant meets the criteria necessary.
"Mr. Firetag: Well, then I'll submit based on my paperwork and my earlier comments. . . ."
As this discussion makes clear, Hernandez's attorney did not request that the trial court provide any further reasoning for its discretionary sentencing choice. Hernandez has thus forfeited any appellate challenge based on the trial court's perceived failure to create a record indicating the court's inquiry into all relevant factors. (People v. Scott (1994) 9 Cal.4th 331, 353 ["waiver doctrine" applies to "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices"].)
"[T]he terms 'waiver' and 'forfeiture' long have been used interchangeably. As the United States Supreme Court has explained, however, 'waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]'" (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9, quoting United States v. Olano (1993) 507 U.S. 725, 733.)
Even if Hernandez had not forfeited this argument, it would be unsuccessful on its merits. "'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (People v Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).)
"[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.]" (Alvarez, supra, 14 Cal.4th at p. 978.) Only when a trial court makes a determination under section 17, subdivision (b) by looking "outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest," does the determination "'exceed[] the bounds of reason.'" (Ibid.)
In this case, Hernandez cannot demonstrate that the trial court's decision was irrational or arbitrary. Within weeks of being released from custody for his initial arrest for possession of methamphetamine, Hernandez was personally overseeing the sale of methamphetamine out of his house. Hernandez's conduct does not suggest that he had any "appreciation of" the significance of his drug offenses. Further, not only did the trial court decide not to reduce count 9 to a misdemeanor, but the court imposed a consecutive sentence on that count, indicating that the court viewed Hernandez's conviction on count 9 as more significant than Hernandez frames it on appeal. Similarly, the trial court used count 12 as the base sentence and imposed the midterm, revealing that the court did not find sufficient mitigating factors with respect to the offense or with respect to Hernandez himself to warrant a reduction from the midterm. Based on this record, we conclude that the trial court did not exceed the bounds of reason in deciding not to reduce Hernandez's "wobbler" convictions to misdemeanors.
4. The trial court did not err in imposing sentence on count 9
Hernandez contends that the trial court should have sentenced him differently with regard to his conviction on count 9 for possession of methamphetamine. Hernandez first argues that instead of sentencing him to a consecutive sentence of one-third the midterm, the court should have imposed, but stayed, the sentence on count 9 pursuant to section 654. In the alternative, Hernandez maintains that even if section 654 does not apply to his conviction on count 9, the trial court should have imposed a concurrent term rather than a consecutive term on that count.
a. S ection 654 does not prohibit separate punishment for the conviction on count 9.
Hernandez contends that the offense of possession of methamphetamine, the lesser included offense for which he was convicted on count 9, occurred on the same day as his offense of opening and maintaining a place to sell methamphetamine, for which he was convicted on count 12, and therefore was part of a single, indivisible course of conduct with that offense. As a result, he contends, section 654 prohibits the imposition of a separate sentence on count 9.
Section 654, subdivision (a) provides:
"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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Section 654 "precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) To determine whether a course of conduct is indivisible, courts consider the intent and objective of the defendant. If all the criminal acts were incident to a single criminal object, then the court may impose punishment only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636–637.) However, a court may impose separate punishments for offenses that have similar but consecutive and different objectives, or simultaneous but separate objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1211–1212.) A trial court's determination that a defendant holds multiple criminal objectives will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
We agree with the trial court's implicit determination that Hernandez held different criminal objectives in committing the crimes at issue in this case. Hernandez's conviction on count 9 was based on the .03 grams of methamphetamine police recovered from the headboard inside Hernandez's room. Count 12 was based on Hernandez having opened and maintained his residence as a gathering place for consuming and/or selling methamphetamine, as evidenced by the numerous drug sales that occurred at the home over a period of time, including the day on which officers found the methamphetamine in Hernandez's room. These two offenses are sufficiently distinct from one another that they can be deemed to have been motivated by separate and distinct intentions, despite the fact that they may have overlapped in time, since the objective in possessing methamphetamine is different from the objective in opening one's home as a place to sell methamphetamine.
Because Hernandez's convictions on counts 9 and 12 did not arise from an indivisible course of conduct, the trial court did not err in punishing the two offenses separately.
b. The court did not abuse its discretion in imposing a consecutive term on count 9
Hernandez contends that the trial court abused its discretion in imposing a consecutive sentence on count 9 because, under the criteria provided in California Rules of Court, rule 4.425, "a concurrent, rather than a consecutive, term was mandated . . . ." According to Hernandez, the court failed to even consider imposing a concurrent sentence on count 9.
When a defendant is convicted of multiple crimes, the trial court has discretion to impose sentence on the subordinate counts to run consecutively or concurrently. (§ 669; see also People v. Bradford (1976) 17 Cal.3d 8 (Bradford).) "It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (Bradford, supra, 17 Cal.3d at p. 20.)
Hernandez failed to object to the trial court's imposition of a consecutive sentence on count 9, and has thus forfeited this challenge on appeal. (Scott, supra, 9 Cal.4th at p. 353.) However, even if we were to consider Hernandez's argument on its merits, the argument would fail.
Pursuant to Rules of Court, rule 4.406, subdivision (b)(5), a trial court is required to give a reason for imposing consecutive sentences. Rule 4.425 sets forth the "[c]riteria affecting the decision to impose consecutive rather than concurrent sentences . . . ." Subdivision (a) of rule 4.425 establishes a variety of criteria on which a court may base this decision, including whether "[t]he crimes and their objectives were predominantly independent of each other," and 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." (Rules of Court, rule 4.425, subd. (a)(1) and (3).)
In deciding to impose a consecutive sentence on count 9, the trial court stated, "As to Count 9, again that was separate conduct and separate time. For that reason I would like to sentence him consecutively for eight months." As discussed above, there is sufficient evidence to support the trial court's determination that the possession offense and the maintaining for sale offense had different objectives and arose from independent conduct. Additionally, the evidence established that the house Hernandez was renting had been opened and maintained as a place for selling methamphetamine over a period of time. From this evidence the trial court could have inferred that the commission of these two offenses did not indicate a "single period of aberrant behavior" on Hernandez's part. The trial court acted well within its discretion in using the fact that the offenses were independent of each other as a reason to impose a consecutive term on count 9.
5. The trial court did not err in calculating Hernandez's presentence credits
Hernandez contends that the trial court improperly calculated his custody credits when it relied on dates provided in the probation report. According to Hernandez, the trial court should have relied on the dates provided in a stipulation he entered into with the prosecution, during trial, regarding the date on which he was released from jail after his arrest on May 12, 2005.
Section 2900.5, subdivisions (a) and (b) provide that defendants are to receive credit for time spent in custody that is related to the conduct for which the defendant has been convicted. It is the "duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to [section 2900.5]." (§ 2900.5, subd. (d).)
The trial court determined that Hernandez had served 371 days in custody, and calculated that the total number of days to be credited, including conduct credits, was 555 days. In calculating Hernandez's custody credits, the trial court relied on the probation officer's report, which indicated that Hernandez had first been taken into custody at the time of his initial arrest on May 12, 2005, and that he was released from that initial period of custody on June 9, 2005.
Hernandez points out that a stipulation he entered into with the prosecution at trial provides that the parties agreed that after his May 12 arrest, he was released from custody on June 13, 2005. However, this stipulation was not entered into for purposes of sentencing. Rather, the stipulation appears to have been entered into as evidence of the prosecution's allegation that Hernandez was out on bail at the time of his second arrest. In fact, the stipulation goes only so far as to state that Hernandez was released from custody "on or about" June 13. The vagueness as to the date is probably attributable to the fact that the prosecutor had little interest in identifying exactly when Hernandez posted bail and was released from custody, as long as the prosecutor could demonstrate that Hernandez was released before June 14, 2005, when an undercover officer returned to Hernandez's residence and again purchased methamphetamine from someone in the home. Hernandez has provided no authority for his assertion that in determining his custody credits, the trial court should have relied on a stipulation between the parties that neither purports to address Hernandez's custody credits nor provides an exact date of Hernandez's release from custody after his May 12, 2005 arrest. Under these circumstances, there is no reason the trial court should be bound by such a stipulation. The trial court did not err in relying on the probation report, rather than the evidentiary stipulation at trial, for purposes of calculating Hernandez's custody credits.
6. The appellate record is insufficient to permit review of Hernandez's challenge based on alleged violations of Brady v. Maryland
Brady v. Maryland (1963) 373 U.S. 83.
Hernandez contends that his right to due process was violated because the prosecution possessed, but failed to disclose to him, information that he could have used to impeach Officer Ronald Kipp, one of the law enforcement officers who testified against him. According to Hernandez, the prosecution knew that Officer Kipp had been investigated for questionable police tactics in prior drug investigations, but failed to share this information with Hernandez's attorney. Hernandez suggests that this information "bears directly upon [Kipp's] credibility as a witness."
As evidence of the prosecution's alleged failure to disclose impeaching evidence, Hernandez refers to exhibits he submitted with his petition for writ of habeas corpus. Because this evidence is not in the appellate record, Hernandez's contention is more appropriately adjudicated by way of a petition for habeas corpus. We therefore do not reach the merits of this contention on appeal. (See, e.g., People v. Sanchez (1995) 12 Cal.4th 1, 59 (Sanchez) [because claim of prosecutorial misconduct involved events not reflected in the appellate record, claim "must be presented by petition for writ of habeas corpus rather than by appeal"]; In re Darlice C. (2003) 105 Cal.App.4th 459, 463 [claim premised in part on matters outside the appellate record "must be adjudicated by means of petition for writ of habeas corpus"].)
Hernandez raises this same claim of Brady error in a petition for writ of habeas corpus. We address his petition for habeas corpus in a separate order filed simultaneously with this opinion.
To the extent that Hernandez is requesting that this court take judicial notice of certain records from other unrelated court proceedings, we deny that request in relation to his direct appeal. (Sanchez, supra, 12 Cal.4th at p. 59, fn. 5 [denying request for judicial notice of records in proceedings against accomplice "because it would improperly augment the appellate record"].)
B. There is sufficient evidence of defendant Nataran's guilt to support her convictions
Nataran contends that there is insufficient evidence to support all of her convictions. In addressing her contentions, we apply the same standards identified in part III.A.2., ante.
1. There is sufficient evidence to support Nataran's convictions on counts 1 through 8
The jury convicted Nataran of eight counts of selling methamphetamine in violation of Health & Safety Code section 11379. Nataran contends that there was insufficient evidence to establish that she knew the substance she was selling was methamphetamine or that it was a controlled, illegal substance. We disagree.
Nataran does not dispute that she sold eight white bindles for $20 each on eight different occasions. Law enforcement officers testified that in at least four of the transactions, Nataran was specifically asked for a "20." Officer Anguiano explained that "[a] 20" is a common term used on the street to describe "$20 worth of a controlled substance." The jury was able to view each of the transactions, which were secretly videotaped by the undercover officers. The jury could reasonably have concluded from this evidence that Nataran knew that the white bindles contained methamphetamine.
2. There is sufficient evidence to support Nataran's conviction on count 10
Nataran challenges her conviction on count 10 for transporting methamphetamine. This conviction was based on the 101 bindles of methamphetamine found hidden in the yellow pickup in which she was a passenger.
Nataran contends that the evidence is insufficient because she was simply a passenger in the truck, she did not own the vehicle, and the vehicle contained no items with her name on them. According to Nataran, these facts suggest "that she did not have custody or control of the vehicle or the contents thereof." She also asserts that these facts mean that "it is unlikely that she knew of the secret compartments or hiding places within the vehicle, and especially behind her seat, where she was not facing and could not easily view." Nataran also contends that there was no evidence that she was acting suspiciously, and that this suggests that she was unaware of the presence of drugs in the vehicle. As further evidence of her innocence, Nataran notes that the bindles were hidden behind the passenger seat of the truck, and states that it would have been difficult for her to place the bindles there, because she would have had to "twist her arm to lift the seat and compartment cover." Nataran also contends that the evidence that she knew there were drugs in the truck was insufficient because there was testimony that drug dealers commonly hide drugs from other users. Nataran suggests that this testimony indicates that Alfonso may have hidden the drugs from her. Nataran also notes that when she was seen selling methamphetamine, she always took the drug bindles from inside a small Altoids tin, which, she claims, "was much smaller than a softball." She observes that this is how the package of 101 bindles was described, and argues that "there were many more bindles found than would have fit into her Altoids tin."
"Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) "The crime[] can be established by circumstantial evidence and any reasonable inferences drawn from that evidence. [Citations.]" (Ibid.)
"[O]ne having the requisite knowledge may be found guilty of illegal transportation if he also has joint or exclusive possession of the drug in a moving vehicle. [Citations.]" (People v. Rogers (1971) 5 Cal.3d 129, 133-134.) "Possession may be either actual or constructive; the latter is established by showing that defendant maintained some control or right to control over contraband in the physical possession of another. [Citations.]" (Id. at p. 134.)
There was a great deal of circumstantial evidence from which the jury could have reasonably determined that Nataran was guilty of transporting methamphetamine. Nataran was a passenger in a truck that arrived at a house out of which Nataran had been selling drugs for months. There were only two remaining bindles in the house and a large stash of cash when the truck arrived, suggesting that the previous supply had been sold and that the truck's occupants were bringing in a new supply of drugs to sell. The drugs were located directly behind Nataran's seat, in an area within her control. Not surprisingly, the 101 bindles found behind Nataran's seat were packaged in the same manner as the eight bindles Nataran had previously sold to officers. In light of all of this evidence, a reasonable jury could have determined that Nataran was guilty of illegally transporting methamphetamine in the truck that day.
3. There is sufficient evidence to support Nataran's conviction on count 12
Nataran contends that her conviction for maintaining a place to sell or use methamphetamine must be reversed because there was insufficient evidence that she had the specific intent to sell, give away, or use methamphetamine on a repetitive or continuing basis. According to Nataran, there was no evidence that she lived at 2029 Patterson, yet there was a great deal of evidence "showing that other methamphetamine users and sellers did" live there. After reciting the evidence that indicates that others lived at 2029 Patterson, Nataran states, "The only evidence that connected appellant with 2029 Patterson were the six dates at which the police found appellant at the property." She further argues, "Clearly, the property was opened and maintained without appellant, since the dealing of drugs continued even when she was not present." None of this evidence establishes that there was insufficient evidence of her guilt as to this offense.
"The elements of the opening-or-maintaining offense are that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance. [Citations.]" (Hawkins, supra, 124 Cal.App.4th at p. 680.) Nataran has pointed to no authority, and we have found none that would suggest that a person who opens or maintains a place for the purpose of selling drugs must live at or have an ownership interest in that place. Rather, "[t]o 'open' means 'to make available for entry' or 'to make accessible for a particular purpose' [citation], and to 'maintain' means 'to continue or persevere in' [citation]. When added to the word 'place,' the opening or maintaining of a place indicates the provision of such locality to others." (People v. Vera (1999) 69 Cal.App.4th 1100, 1103.) It is clear that Nataran made 2029 Patterson accessible for the purpose of methamphetamine sales, since officers purchased drugs from Nataran at 2029 Patterson on multiple occasions over a period of weeks. Nataran gave officers bindles of methamphetamine when they asked for "a 20" ─ street slang for $20 worth of methamphetamine. There was also evidence that large numbers of individuals visited the residence for short periods of time at different hours of the day and night, and that Nataran was riding in a truck that was delivering a large quantity of methamphetamine to the house. Based on all of the evidence, the jury could have reasonably concluded that Nataran opened or maintained the residence at 2029 Patterson with the purpose of repeatedly selling a controlled substance.
IV.
DISPOSITION
The judgment of the trial court is affirmed as to both Hernandez and Nataran.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.
"When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
"(1) After a judgment imposing a punishment other than imprisonment in the state prison.
"(2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor.
"(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.
"(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.
"(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint."