Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA086886, Mike Camacho, Judge.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Gilbert Fernando Hernandez, appeals the judgment entered following his conviction, by jury trial, for transportation of cocaine base, possession of cocaine base, transportation of methamphetamine and possession of methamphetamine, with prior prison term and prior serious felony conviction findings (Health & Saf. Code, §§ 11352, 11350, 11379, 11377; Pen. Code, §§ 667.5, subd. (b), 667, subd. (b)-(i)). He was sentenced to state prison for a term of 10 years.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified, and the matter is remanded for resentencing.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
On the afternoon of May 14, 2009, Los Angeles County Sheriff’s Deputy Gilbert Ramirez noticed defendant Hernandez’s car traveling on the freeway without a rear bumper. Upon checking the license plate, Ramirez discovered there was an outstanding arrest warrant for the car’s owner. Ramirez made a traffic stop, determined the warrant was for Hernandez, and arrested him. Because there was no passenger to take possession of the car for Hernandez, Ramirez called an impound tow truck.
Ramirez searched the car before it got towed. Underneath the center console area, in between the driver and passenger seats, Ramirez found bags containing what he suspected to be cocaine base and methamphetamine. In other places inside the car, Ramirez found four empty plastic sandwich bags and two cell phones. However, Hernandez did not have any money on him, and Ramirez did not find pay/owe sheets, scales, police scanners or any other drug trafficking paraphernalia in the car. When Ramirez asked him about the drugs, Hernandez first denied they belonged to him, but then admitted they were his. He claimed the drugs were for his personal use only. Ramirez testified Hernandez did not appear to be under the influence of either rock cocaine or methamphetamine.
At the time of the preliminary hearing, at defense counsel’s request, Ramirez searched Hernandez’s car again, specifically the area around the rear seat. Underneath the rear seat, Ramirez found the kind of pipe used for smoking drugs. There appeared to be some burnt residue on the pipe’s bowl. Ramirez testified it was possible he had missed the pipe during his road-side search.
William Soliman, a senior criminalist with the Los Angeles County Sheriff’s Department, analyzed the substances found in Hernandez’s car, which turned out to consist of 7.65 grams of cocaine base and 1.34 grams of methamphetamine. The cocaine base was contained in five separate baggies, whose individual gram weights were: 5.20, 1.01, 0.24, 1.0 and 0.20. The methamphetamine was contained in two baggies, one weighing 1.29 grams and the other.05 grams.
Ramirez testified he believed Hernandez possessed these drugs for the purpose of sales. He reached this conclusion for a number of reasons. The street value of the drugs was $800, which Ramirez believed was too large an amount for personal use because heavy drug users “don’t want to get caught with a lot of narcotics. Number one, they don’t typically have the money to buy that much at one time, and they’re usually good with just one or two doses.” In addition, “[s]everal of the baggies... appeared to be equal amounts which is common when someone’s selling drugs. They’ll put equal amounts into separate baggies to prepare for sales....” “Also, [Hernandez] had two cell phones in his possession, which is common for drug dealers to have. They’ll use one phone as personal use, for family, friends, what have you. The other one is strictly used just for transactions.” Ramirez testified it was “not uncommon for someone that uses narcotics to, also, sell narcotics. What they’ll do is they’ll buy maybe a large amount... and save a little bit for themselves for personal use, and then sell the rest.” Ramirez opined the type of pipe he found under the rear seat would not have been used to smoke methamphetamine or cocaine base because too much of the drug would be wasted during the smoking process.
On cross-examination, Ramirez conceded that, particularly as to the methamphetamine, Hernandez could have possessed the drugs either for his personal use or for sale:
“Q.... Is it your testimony that you believe Mr. Hernandez is a user and a seller, or just a seller?
“A. It’s possible he can be either one or both.
“Q. But, specifically, as it references the methamphetamine, is it your testimony that that particular methamphetamine was possessed for personal use, or for sale; or you don’t know, it could be either?
“A. My opinion either one.”
Ramirez also conceded the four empty baggies he found in the car could have been from drugs Hernandez had already purchased and consumed.
On redirect, Ramirez testified:
“Q. By [the prosecutor]: So is it your opinion that this meth that was found on the defendant was possessed for sales or for his personal use, one or the other? Which one in your expert opinion was it possessed for?
“A. In my opinion, it was possessed for the purposes of sale.
“Q. Then why did... you tell [defense] counsel that in your opinion the meth found in this case was possessed for either use or sales?
“A. I think she asked me if it was possible that it can be either/or. I believe I said it could be. Anything’s possible. It can be either/or, but my opinion stands based off [sic] the totality of circumstances that he possessed it for sales.”
2. Defense evidence.
Hernandez’s father testified that after Hernandez lost his job, five or six months before his arrest, he took over Hernandez’s car payments and several times gave Hernandez $340 to $400 for rent and $40 to $50 for gas. Hernandez’s mother testified she was paying for his car insurance and she put him on her cell phone plan. She also gave him $400 to $600 on a monthly basis so he could pay his rent. She was unaware Hernandez had also been receiving rent money from his father. (Hernandez’s parents had been divorced for a long time.) There was also evidence Hernandez had not been using the cash he was receiving from his parents to pay his rent.
One of Hernandez’s brothers testified he had seen Hernandez using drugs at various times. Mostly he had seen Hernandez smoking marijuana, although once he saw a white residue on Hernandez’s drug pipe, and once he saw Hernandez dip a marijuana cigarette into some other drug and smoke it.
3. Stipulations.
The pipe found under the rear seat of Hernandez’s car was forensically analyzed. The parties stipulated that DNA from saliva on the pipe belonged to Hernandez, and that residue on the pipe tested positive for cocaine.
4. The verdicts.
The jury convicted Hernandez for transporting cocaine base (count 1) and methamphetamine (count 3). The jury acquitted him of possessing cocaine base and methamphetamine for sale (counts 2 and 4), convicting him instead on the lesser included offenses of simple drug possession on those counts (Health & Saf. Code, §§ 11350, 11377). The trial court sentenced Hernandez to eight years on count 1 (a four-year base term doubled under the “Three Strikes” law) and a consecutive term of two years on count 3. The court imposed and stayed prison terms on the count 2 and count 4 convictions, as well as on the prior prison term enhancements.
CONTENTIONS
1. The consecutive term imposed on count 3 violated section 654’s prohibition on multiple punishment.
2. The trial court erred by imposing criminal laboratory analysis and drug program fees on counts for which the sentences had been stayed.
3. The trial court erred by staying the prior prison term enhancements.
4. The abstract of judgment contains errors.
DISCUSSION
1. Sentence on count 3 should have been stayed under section 654 .
Hernandez contends the trial court erred by imposing a consecutive two-year prison term on count 3 (transporting methamphetamine) because this sentence violated the multiple punishment prohibition set out in section 654. This claim has merit.
a. Legal principles.
“Section 654, subdivision (a), provides in pertinent part, ‘[a]n 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.’ Section 654 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ [Citations.] However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.] [¶] Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143.)
b. Discussion.
By imposing a consecutive sentence on count 3, the trial court impliedly found Hernandez entertained separate criminal intents and objectives when he simultaneously transported both cocaine base and methamphetamine. Hernandez argues this implied finding was erroneous: “Under the facts of this case, there was not substantial evidence that appellant entertained any more than the single criminal intent of delivering the substances to his residence, or to another single individual, while he was simultaneously transporting the two drugs in his vehicle. Thus the court should have stayed the imposition of appellant’s sentence in count 3.”
(1) The Adams case.
Hernandez relies on In re Adams (1975) 14 Cal.3d 629. In Adams, police saw the defendant deliver various drugs (benzedrine, seconal, marijuana, heroin and opium) in a car to his accomplice Gregory, who was subsequently arrested in possession of those drugs during a sting operation. The defendant was convicted on five transportation counts, and given a combination of concurrent and consecutive sentences. In a habeas petition, he claimed the sentencing violated section 654 because his “act of transportation constituted a single course of conduct accompanied by a single intent and objective.” (In re Adams, supra, at p. 633.) Our Supreme Court agreed, reasoning:
He was also convicted on one count of selling benzedrine.
“[T]he evidence discloses that petitioner simultaneously transported a variety of illegal drugs with the single intent and objective of delivering them to codefendant Gregory. Our analysis leads us to the conclusion that it would be unreasonable to fragment that single objective into five separate objectives, namely, to transport benzedrine, to transport heroin, to transport seconal, etc. Instead, the entire transaction should reasonably be viewed as constituting an indivisible course of conduct analogous to the theft of several articles of personal property which... results in the commission of a single punishable offense.
“The People rely upon a line of cases which have held that the simultaneous possession of different types of drugs properly may be multiply punished. [Citations.] The foregoing rule appears to be based upon the rationale that ‘[t]he act of possession cannot be conceptualized as a single “act” covering possession of two kinds of illicit drugs.’ [Citation.] This rule does not apply if the drugs possessed are ‘all of one kind, ’ such as various derivatives of the drug opium. [Citation.]
“By analogy to the foregoing cases, the People suggest that the ‘act’ of transportation of multiple types of drugs should not be deemed a single act. Yet... if the defendant’s course of conduct is motivated by a single intent and objective, the proscription against multiple punishment applies. In each of the drug possession cases, the defendant’s possession may or may not have been motivated by a single intent and objective, for one may possess drugs for a variety of reasons. In the instant case, however, petitioner’s simultaneous transportation of the various drugs in his possession was clearly motivated by the single objective of delivering them to Gregory. Thus, although we do not disapprove the multiple punishment rule invoked in the drug possession cases relied upon by the People, the rule has no application to situations in which the defendant possesses the drugs for the purpose of accomplishing only a single criminal objective.” (In re Adams, supra, 14 Cal.3d at p. 635.)
Hence, Adams concluded “that where... different kinds of drugs are simultaneously transported in one, indivisible transaction, with the single intent and objective of delivering them to another person, only one act of illegal transportation occurs.” (In re Adams, supra, 14 Cal.3d at p. 632.)
(2) The Blake decision.
The defendant in People v. Blake (1998) 68 Cal.App.4th 509, had been convicted of transporting both methamphetamine and marijuana. On appeal, he claimed multiple punishment was barred under the reasoning of Adams because he had been transporting both drugs in his car simultaneously. But Blake disagreed: “[T]he evidence supports a reasonable inference that defendant had separate objectives in transporting the methamphetamine and marijuana in that he intended to sell them to different customers.” (People v. Blake, supra, at p. 511.) “In contrast [to Adams], nothing in this case indicates defendant transported the methamphetamine and marijuana with the intent to deliver them to one person. To the contrary, the record supports an inference that defendant intended multiple sales to different customers: (1) the marijuana and methamphetamine were stored in separate containers in different concealed compartments of the car; (2) the marijuana was packaged in a manner consistent with multiple, individual sales; (3) the amounts of marijuana and methamphetamine were consistent with delivery to more than one individual; (4) the difference between the drugs suggests they were ‘directed at different buyers’ [citation]; and (5) the presence of a ‘pay-owe’ sheet with multiple entries, a police scanner, baby wipes, and a scale indicates defendant was engaged in an elaborate drug trafficking operation involving multiple sales to different individuals, rather than one single delivery.” (People v. Blake, supra, at p. 512.)
(3) Application to the present case.
Hernandez argues his case is more like Adams than Blake because: the cocaine base and the methamphetamine shared the same hiding place in his car; the drugs were not packaged in a manner particularly suitable for sale to multiple customers; and, no other drug trafficking paraphernalia was found.
Because of the difference in burdens of proof (beyond a reasonable doubt for conviction, but only preponderance of the evidence for sentencing factors), the trial court was not precluded from finding Hernandez had been selling drugs even though the jury acquitted him on the possession for sale charges. (See People v. Towne (2008) 44 Cal.4th 63, 83-84 [sentencing court’s reliance on facts underlying charges on which defendant was acquitted does not violate defendant’s statutory or constitutional rights].)
The Attorney General argues Hernandez’s reliance on Adams is misplaced because Adams did not change the rule that “[t]he simultaneous possession of different drugs may be separately punished without violating Penal Code section 654.” But Hernandez was not being punished for the simultaneous possession of different drugs; he was being punished for the simultaneous transportation of different drugs. The Attorney General’s argument entirely blinks this distinction and conflates the two categories without explaining why.
We agree with Hernandez the facts of this case are more like Adams than Blake. The defense evidence tended to show Hernandez was a drug user who, despite having lost his job, had access to the kind of cash Ramirez testified would have been needed to purchase those drugs on the street. There was a palpable absence of any significant drug trafficking paraphernalia, such as pay/owe sheets, scales or police scanners.
Although Officer Ramirez noted “several” of the baggies contained “equal amounts” of cocaine base, over all the drug packaging did not indicate intended sales to multiple buyers. As discussed, ante, the cocaine base was contained in baggies with gram weights of 5.20, 1.01, 0.24, 1.0 and 0.20, and the methamphetamine was contained in baggies weighing 1.29 grams and 0.05 grams. The evidence of the four empty baggies was inconsequential given Ramirez’s acknowledgment these could have been the remains of drugs Hernandez had already personally consumed.
Moreover, even the prosecution evidence tended to show Hernandez only had a single intent and objective. Officer Ramirez testified the lack of significant drug trafficking paraphernalia in Hernandez’s car did not undermine his conclusion Hernandez was selling drugs because simply driving a shipment of drugs from point A to point B was a typical trafficking job: “I’ve had on-hand experience of people possessing that amount and transporting it from... a stash house or one place to another place with the sole purpose of getting to that second place, dropping off the narcotics and receiving the money. That’s common for drug dealers. Not all drug dealers... depending on what part of the organization they’re in, would necessarily have scales or baggies or pay/owe sheets.... [¶] Sometimes you have people that just... transport it from point A to point B and sell it, that amount, to whatever person they’ve already talked about selling it to.” But this testimony still makes Hernandez’s case more like Adams than Blake.
We conclude there was no substantial evidence Hernandez’s transportation of the drugs had been motivated by more than the single intent and objective of delivering the drugs, either to his own home or to another person. Therefore, the punishment imposed on count 3 must be stayed under section 654.
2. The fines imposed in connection with counts 2 and 4 must be stayed.
Hernandez contends, and the Attorney General properly concedes, the trial court erred by imposing criminal laboratory analysis and drug program fees on the two drug possession convictions (counts 2 and 4) because the trial court stayed the sentences imposed on those counts.
Health and Safety Code section 11372.5, subdivision (a), provides: “Every person who is convicted of a violation of Section 11350, ... 11377, ... of this code... shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment.”
Health and Safety Code section 11372.7, subdivision (a), provides: “Except as otherwise provided in subdivision (b) or (e), each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law.”
We agree with Hernandez that section 654 barred the trial court from imposing these fees because the sentences on counts 2 and 4 had been stayed. (See People v. Pearson (1986) 42 Cal.3d 351, 363 [because “the defendant is penalized if he suffers enhancements based on stayed convictions” it would violate section 654 “to enhance a defendant’s sentence because of a stayed conviction”].) The laboratory analysis and drug program fees prescribed by Health and Safety Code sections 11372.5 and 11372.7 are amounts to be added to the total fine imposed on a defendant and, therefore, constitute “penalties” or “punishment” within the meaning of section 654. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [because laboratory analysis fee is a fine, it is subject to penalty assessments]; People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1695 [drug program fee is fine or penalty].)
The criminal laboratory analysis and drug program fees must be stayed.
3. Incorrect sentencing on prior prison term findings.
Hernandez contends the trial court impermissibly imposed and stayed three one-year sentences on the prior prison term enhancement findings (§ 667.5, subd. (b)). The Attorney General properly concedes the error. We will remand for resentencing.
Trial courts must either impose sentence enhancements or strike them, but cannot simply stay them. “The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64 Cal.App.4th 386, 391 [regarding prior prison term enhancement]; accord People v. Flores (2005) 129 Cal.App.4th 174, 187-188 [§ 186.22, subd. (b)(1), gang enhancement must be either stricken or imposed; it cannot simply be stayed].)
Therefore, this matter must be remanded so the trial court can resentence Hernandez, and either strike or impose the section 667.5 enhancements. In addition, because we have stricken the consecutive term on count 3, on remand the trial court may wish to consider restructuring Hernandez’s sentence. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 [“the trial judge’s original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased”]; People v. Castaneda (1999) 75 Cal.App.4th 611, 614 [remand for resentencing proper where original sentence contained unauthorized enhancement]; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458 [remand for resentencing proper where original sentence violated “double-the-base-term” rule].)
4. Correct abstract of judgment.
Hernandez contends, and the Attorney General agrees, there are several errors in the abstract of judgment. We will order these errors corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [it is proper and important to correct errors and omissions in abstracts of judgment].)
The abstract misdescribes the convictions on count 2 (Health & Saf. Code, § 11350 [possession of cocaine base]) and count 4 (Health & Saf. Code, § 11377 [possession of methamphetamine]) as being possession for sale offenses, rather than simple possession offenses. The abstract describes the conviction on count 1 as the “sale/transportation/offer to sale [sic] controlled substance, ” and the conviction on count 3 as the “sale of controlled substance.” These descriptions should be amended to reflect convictions for transporting controlled substances.
DISPOSITION
The judgment is modified by staying the sentence imposed on count 3, and staying the criminal laboratory analysis and the drug program fees imposed on counts 2 and 4. As modified, the judgment is affirmed. The matter is remanded for resentencing in accordance with this opinion. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
We concur: KITCHING, J., ALDRICH, J.