Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB726312
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Maurice Shawn Hodge pleaded no contest to possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 2) and transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 3) and was convicted by jury of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 1). The trial court found true the allegations that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)) that also qualified as a strike (§§ 667, subds. (b)-(i), 1170.12), and that he had served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to 16 years in prison.
There are documents in the record referring to defendant as “MAURICE DESHAWN HODGE.” Because the abstract of judgment refers to him as “Maurice Shawn Hodge, ” we use that name in this opinion.
All further statutory references are to the Penal Code unless otherwise indicated.
The prosecution’s theory at trial regarding the robbery charge was that defendant aided and abetted the robbery by driving the getaway car. On appeal, defendant contends that the trial court erred when it instructed the jury with CALCRIM No. 1603, which provides that the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of “temporary safety.” Defendant contends the definition of “temporary safety” in the instruction is incorrect and that it lowered the prosecution’s burden of proof. Defendant also argues that the trial court erred by instructing the jury with CALCRIM No. 376, which pertains to possession of stolen property as evidence of a crime, because it lowered the prosecutor’s burden of proof. Defendant asserts that each instructional error violated his federal constitutional rights and that the cumulative errors resulted in a fundamentally unfair trial that requires reversal. Defendant also raises an equal protection challenge to his sentence for possession for sale of cocaine base, based on the disparity in sentences between that offense and possession for sale of methamphetamine.
For reasons that we will explain, we conclude that the trial court did not err when it instructed the jury with CALCRIM Nos. 1603 and 376. We further conclude that defendant has forfeited his equal protection claim. Therefore, after correcting clerical errors, we will affirm the judgment as modified.
Although defendant was convicted by plea with respect to the drug related offenses in counts 2 and 3, the abstract of judgment indicates that defendant was “convicted by” the “jury” (capitalization omitted). We will order the abstract corrected to reflect defendant’s no contest pleas.
Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with the appeal. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 2008, defendant was charged by information with second degree robbery (§§ 211, 212.5, subd. (c); count 1) with the allegation that he personally used a firearm in the commission of the offense (§§12022.5, subd. (a), 12022.53, subd. (b)). Defendant was also charged with possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 2) and transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 3). The information further alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)), and that the conviction underlying one of those terms was a prior serious felony and qualified as a strike (§§ 667, subds. (a) & (b)-(i), 1170.12).
Codefendant Darnell Damar Snowden was charged by the same information with similar robbery and firearm allegations.
Snowden is not a party to this appeal.
On March 9, 2009, the trial court denied defendant’s motion to sever the robbery count from the drug counts for trial and also denied defendant’s motion to sever his trial from that of his codefendant. The court granted defendant’s request to bifurcate trial on the prior allegations, and defendant waived his right to a jury trial on those allegations.
On March 10, 2009, defendant pleaded no contest to possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 2) and transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 3), with the understanding that, without considering the priors, he would receive a maximum of five years for the two counts. Upon the prosecutor’s motion, the trial court struck the two arming allegations (§§12022.5, subd. (a), 12022.53, subd. (b)) with respect to the remaining count for robbery (count 1) against defendant. The case proceeded to jury trial on the robbery charge against defendant and his codefendant, Snowden.
Based on defendant’s plea, no evidence was presented at trial regarding counts 2 and 3. According to the probation officer’s report, after defendant was arrested in connection with the robbery and transported to booking for processing, police officers searched the rear seat of the vehicle used to transport defendant and “located a bag containing 27 individually packaged rocks of ‘crack’ cocaine, with a total weight of 11.2 grams.”
The Prosecution’s Case
On the night of March 31, 2007, an employee at a Mountain View liquor store was working by himself. About 9:15 p.m., a “regular customer” rode his bicycle to the store and observed two males “kind of loitering” nearby. The customer entered the store and went to the soft drink area. The two males who were outside the store then ran in wearing masks and holding semiautomatic guns. One of the males pointed a gun at the customer and ordered him “to the ground.” The other male approached the employee, pointed a gun at him, forced him to open the cash register, and took money that was in the register and on a shelf below the register. The male who had ordered the customer to the ground took a bottle of gin. The robbers were in the store for a total of 30 seconds to two minutes before exiting. The store employee ran out of the store and saw the two robbers jump into a slowly moving car. The employee was able to write down the last three digits of the license plate number. The vehicle was last seen on Moffett Boulevard heading towards Highway 101.
The employee called the police, and about 9:26 p.m., Mountain View police officers on patrol received a dispatch about the robbery. Mountain View police went to interview the employee and the customer. The employee knew that approximately $1,105 had been taken, as well as the denominations of many of the bills, because he had counted most of the cash shortly before the robbery.
Mountain View police broadcast a “be-on-the-lookout” notice to surrounding law enforcement agencies regarding the robbery suspects and their vehicle. About 9:50 p.m., an agent with the Palo Alto Police Department saw a vehicle that matched the description with three occupants. The agent gave chase in his patrol car, as did East Palo Alto police officers in another patrol car. Initially, the robbers’ vehicle “accelerated at a high rate of speed, ” traveling approximately 70 miles per hour in a 35 mile-per-hour zone. Eventually the robbers’ vehicle “came to an abrupt stop” in the middle of a parking lot at an apartment complex in East Palo Alto. Defendant, who was the driver of the vehicle, was held at gunpoint by the police and eventually arrested. Snowden, who fled the vehicle, was chased and arrested. The third occupant also fled but was never located. Snowden had $1,093 in cash. Defendant had $852.03. No handguns were found.
The police took the liquor store employee and the customer who was present during the robbery to the apartment complex in East Palo Alto to possibly identify the suspects. The employee recognized Snowden as one of the robbers. Regarding defendant, the employee stated, “ ‘No, not this guy’ ” and indicated that the robber was “ ‘thinner.’ ” The customer identified Snowden as the person who had pointed the gun at him and believed that defendant was the other robber who had entered the store that evening.
Although the customer identified defendant as the other robber who had entered the store, the prosecutor argued to the jury that defendant was the driver of the getaway car.
The employee recognized the vehicle that had been stopped by the police as the one in which the robbers had driven away. The last three numbers on the license plate of the vehicle matched the numbers that the employee had written down regarding the robbers’ car. The employee saw inside the car a bright blue mask and a pair of white tennis shoes with orange stripes that he believed had been worn during the robbery. He also saw a bottle of gin that was the same brand that had been taken from the store.
Snowden was “included as a possible contributor” of the DNA on the blue ski mask. In addition, his DNA was on a black knit cap and he was “included as a possible contributor” of the DNA on a black mouth and nose mask found in the robbers’ vehicle. Defendant was “excluded” as a possible contributor with respect to these items, meaning that “not enough or any of his DNA [was] present....”
The Defense Case
Ederana K. Cooper was called as a witness for defendant. Cooper and defendant “grew up together” and she has known him for more than ten years. Cooper testified that defendant came by her house in Menlo Park to visit their daughter about 8:00 p.m. on March 31, 2007. Cooper had not expected him that evening. Cooper testified that defendant visited with their daughter and then she put their daughter in bed at 9:00 p.m. She and defendant subsequently went outside within 15 or 20 minutes, about 9:20 p.m. According to Cooper, they talked outside for about 20 or 30 minutes before defendant’s “ride came back and got him.” There were already two people in the car. Cooper saw the driver get in the back seat and defendant got in the driver’s seat and “took off driving the car.” Defendant does not “have a vehicle” to Cooper’s knowledge. Cooper has been convicted of possession for sale of drugs, second degree burglary, and petty theft with a prior conviction.
Samuel Manuel Arellano was called as a witness for codefendant Snowden. Arellano has known Snowden for many years and described his relationship with Snowden in 2007 as “[p]retty much like family.” Arellano testified that on March 31, 2007, he and Snowden were at a house in East Palo Alto. According to Arellano, Snowden left the house about 9:00 p.m. Arellano has two prior convictions for second degree burglary and a prior misdemeanor conviction for battery on a girlfriend or close friend.
Jury Verdicts, Findings on the Priors, and Sentencing
On March 18, 2009, the jury found defendant guilty of second degree robbery (§§ 211, 212.5, subd. (c)). Regarding codefendant Snowden, the jury found him guilty of second degree robbery and found true the allegation that he personally used a firearm in the commission of the robbery.
On March 20, 2009, a court trial was held on the prior allegations against defendant. The court found true the allegations that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)) that also qualified as a strike (§§ 667, subds. (b)-(i), 1170.12), and that he had served two prior prison terms (§ 667.5, subd. (b)).
On June 26, 2009, the trial court denied defendant’s Romero motion to dismiss his strike prior and sentenced him to 16 years in prison. The sentence consisted of eight years, double the midterm, for count 2 (possession for sale of cocaine base), a consecutive term of two years, or one-third the midterm, doubled, for count 1 (second degree robbery), plus five years pursuant to section 667, subdivision (a), and one year for one of defendant’s two prison priors. The court imposed and stayed the sentence on count 3 (transportation of cocaine base) and imposed and stayed the punishment for defendant’s other prison prior. The court awarded a total of 941 days of custody credit, ordered defendant to pay various fines and fees, and made a general restitution order.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant filed a notice of appeal on June 26, 2009.
III. DISCUSSION
Jury Instruction Regarding “Temporary Safety”
At trial, the jury was instructed pursuant to CALCRIM No. 1603 as follows: “To be guilty of robbery in the second degree as an aider and abettor, the defendant, Maurice Hodge, must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety. [¶] A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.”
On appeal, defendant contends that the definition of “temporary safety” in CALCRIM No. 1603 is incorrect because it “stresse[s] the permanence” of temporary safety. In particular, defendant points to the requirement in CALCRIM No. 1603 that the perpetrator “is no longer being pursued” and states that this element “does not make sense in this modern age where police departments communicate nearly instantaneously and ‘Be on the Lookout’ bulletins are relayed to officers in other cities, as happened in this case. As one officer goes off duty, another takes his place and continues looking for the suspects described in the bulletin, presumably for days on end.” Defendant questions when the “no longer being pursued” element would “ever be met.” Defendant theorizes that “[u]nder the current definition of ‘temporary safety’, the robbers in this case may have driven all night long and picked [him] up the next day only to be apprehended shortly thereafter and [he] still could have been convicted of aiding and abetting the robbery.” Citing People v. Boss (1930) 210 Cal. 245, defendant asserts that the jury should have been instructed that temporary safety “may be reached ‘even momentarily.’”
Defendant contends that if the jury had been “properly instructed” regarding temporary safety, and if the jury believed Cooper’s testimony that defendant “did not join the robbers until after they escaped with the goods and drove to her house to pick [him] up, ” then defendant “should have been acquitted.” Defendant asserts that the incorrect instruction violated his federal due process and jury trial rights because “it lessened the prosecution’s burden to establish the intent element of aiding and abetting the robbery beyond a reasonable doubt, ” and this instructional error was not harmless beyond a reasonable doubt.
Although defendant did not raise an objection to the instruction in the trial court, he maintains that he has not forfeited the objection. He also relies on section 1259, which provides that “[t]he appellate court may... review any instruction given... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
The Attorney General contends that defendant has forfeited his claim of instructional error by not raising it in the trial court and that the appellate court should decline to exercise its discretion to consider the claim on appeal. On the merits, the Attorney General maintains that it is not reasonably likely that jurors understood the instructions as allowing them to convict defendant of robbery even if they believed Cooper’s testimony that defendant did not get into the vehicle until about 9:40 or 9:50 p.m. Even if the instruction on temporary safety was erroneous, the Attorney General asserts that reversal is not warranted because it is not reasonably possible nor reasonably probable that the jury believed Cooper.
Assuming defendant’s claim has not been forfeited, we find unpersuasive his argument that the instruction lessened the prosecutor’s burden of proof.
“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) “ ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ [Citations.] ” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 (Musselwhite); People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061 (Carrasco).)
The California Supreme Court has explained that “the commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased. The asportation, the final element of the offense of robbery, continues so long as the stolen property is being carried away to a place of temporary safety. Accordingly, in order to be held liable as an aider and abettor, the requisite intent to aid and abet must be formed before or during such carrying away of the loot to a place of temporary safety.” (People v. Cooper (1991) 53 Cal.3d 1158, 1161, italics omitted (Cooper).)
Regarding the definition of temporary safety, the jury in this case was instructed pursuant to CALCRIM No. 1603 that “a perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.” On appeal, defendant contends that “[t]his instruction stressed the permanence of ‘temporary safety’ and thus was incorrect.” Citing People v. Boss, supra, 210 Cal. 245, defendant contends that the jury should have been instructed that “[r]eaching ‘temporary safety’ may be a ‘momentary’ event.” We disagree.
First, we do not believe that CALCRIM No. 1603 can reasonably be understood as suggesting that “permanence” is an aspect of temporary safety. CALCRIM No. 1603 sets forth the factors to consider in determining whether the perpetrator has reached a place of safety. This place of safety is referred to as “temporary” in the instruction. The jury in this case was instructed pursuant to CALCRIM No. 200 that “[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.” The word temporary is commonly understood. It means “lasting for a time only, ” “existing or continuing for a limited time, ” and “impermanent, transitory.” (Webster’s 3d New Internat. Dict. (1993) p. 2353, capitalization omitted.) Thus, with the adjective “temporary” in CALCRIM No. 1603, it is not reasonably likely that the jury would have understood the instruction as “stress[ing] the permanence” of the place of safety that is reached by the perpetrator.
Second, we believe that it is unnecessary for the trial court to further instruct the jury that reaching temporary safety may be a “momentary event, ” as defendant now argues on appeal. Momentary is an adjective meaning “continuing only a moment, ” “lasting a very short time, ” and “transitory.” (Webster’s 3d New Internat. Dict., supra, p. 1456, capitalization omitted.) Given that CALCRIM No. 1603 already uses the adjective “temporary” in describing the place of safety that is reached, and in view of the definition of temporary, we believe that the instruction is complete and defendant’s proposed clarification is unnecessary.
We also observe that the case cited by defendant, People v. Boss, supra, 210 Cal. 245, does not stand for the proposition that “momentary” must be included in a jury instruction concerning temporary safety. In that case, the California Supreme Court discussed the escape rule in connection with the felony-murder doctrine. The court stated: “It is a sound principle of law which inheres in common reason that where two or more persons engage in a conspiracy to commit robbery and an officer or citizen is murdered while in immediate pursuit of one of their number who is fleeing from the scene of the crime with the fruits thereof in his possession, or in the possession of a co-conspirator, the crime is not complete in the purview of the law, inasmuch as said conspirators have not won their way even momentarily to a place of temporary safety and the possession of the plunder is nothing more than a scrambling possession. In such a case the continuation of the use of arms which was necessary to aid the felon in reducing the property to possession is necessary to protect him in its possession and in making good his escape. Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property. Without revolvers to terrify, or, if occasion requires, to kill any person who attempts to apprehend them at the time of or immediately upon gaining possession of said property, their plan would be childlike. The defense of felonious possession which is challenged immediately upon the forcible taking is a part of the plan of robbery, or as the books express it, it is res gestae of the crime.” (Id. at pp. 250-251, italics added and omitted.) The California Supreme Court’s use of the word “momentarily” serves to emphasize a point and does not suggest that some form of the word should be used in a jury instruction regarding temporary safety.
Third, the jury in defendant’s case was instructed that the People must prove their case beyond a reasonable doubt, including that defendant had the requisite intent as an aider and abetter at the relevant time. For example, in addition to CALCRIM No. 1603, the jury was instructed with CALCRIM No. 401 as follows: “To prove that the defendant Maurice Hodge is guilty of a crime based on aiding and abetting that crime, the People must prove that, one, the perpetrators committed the crime; two, defendant Hodge knew that the perpetrators intended to commit the crime; three, before or during the commission of the crime, defendant Hodge intended to aid and abet the perpetrators in committing the crime; and four, defendant Hodge’s words or conduct did, in fact, aid and abet the perpetrators’ commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” The trial court also instructed the jury, pursuant to CALCRIM No. 220, that “[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” The jury was cautioned that “[u]nless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal, and [the jury] must find them not guilty.”
In summary, the trial court was not required to instruct the jury that temporary safety, as described in CALCRIM No. 1603, may be a “momentary event” or may be reached “even momentarily.” Further, in considering the instructions as a whole (Musselwhite, supra, 17 Cal.4th at p. 1248; Carrasco, supra, 137 Cal.App.4th at p. 1061), we do not believe it is reasonably likely that the jury understood CALCRIM No. 1603 and the concept of temporary safety in a manner that violated defendant’s federal due process and jury trial rights.
CALCRIM No. 376
The trial court instructed the jury with CALCRIM No. 376 as follows: “If you conclude that a defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of robbery in the second degree based on those facts alone. However, if you find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery in the second degree. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery in the second degree. [¶] Remember that you may not convict the defendants of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” (Italics added.)
In his opening brief on appeal, defendant contends that the reference to “slight” evidence “tells the jury that guilt may be inferred on the basis of evidence which does not rise to the standard of proof beyond a reasonable doubt.” Defendant argues that because the burden of proof was “reduced, ” his rights under the Fifth, Sixth, and Fourteenth Amendments to the federal constitution were violated and reversal is required.
In a supplemental opening brief, defendant acknowledges that the California Supreme Court concluded in People v. Parson (2008) 44 Cal.4th 332 (Parson), that CALJIC No. 2.15, the earlier comparable instruction to CALCRIM No. 376, does not lessen the prosecution’s burden of proof to establish guilt beyond a reasonable doubt. In Parson, the trial court “gave the following instruction tracking the language of CALJIC No. 2.15 (1989 rev.): ‘If you find that the Defendant was in conscious possession of recently stolen property, the fact of such possession is not by itself sufficient to permit an inference that the Defendant is guilty of the crime of robbery or burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove the Defendant’s guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider the attributes of possession: Time, place and manner; that the Defendant had an opportunity to commit the crime charged; the Defendant’s conduct; any other evidence which tends to connect the Defendant with the crime charged.’ ” (Parson, supra, 44 Cal.4th at p. 355.) The Parson court explained that “[t]he instruction does not create a mandatory presumption that operates to shift the People’s burden of proof to the defense, for the instruction merely permits, but clearly does not require, the jury to draw the inference described therein. [Citation.] Perhaps more to the point, there is nothing in the instruction that directly or indirectly addresses the burden of proof, and nothing in it relieves the prosecution of its burden to establish guilt beyond a reasonable doubt. [Citation.] In any event, given the court’s other instructions regarding the proper consideration and weighing of evidence and the burden of proof, there simply ‘is “no possibility” CALJIC No. 2.15 reduced the prosecution’s burden of proof in this case.’ [Citation.]” (Parson, supra, 44 Cal.4th at p. 356.) The California Supreme Court further reasoned “the instruction did not create a permissive presumption that violated due process, because ‘ “reason and common sense” ’ justified the suggested conclusion that defendant’s conscious possession and use of recently stolen property tended to show his guilt of robbery and burglary. [Citations.]” (Ibid.)
Although nothing in CALJIC No. 2.15 “directly or indirectly addresses the burden of proof” (Parson, supra, 44 Cal.4th at p. 356), the jury in defendant’s case was cautioned pursuant to CALCRIM No. 376 as follows: “Remember that you may not convict the defendants of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
As defendant in this case acknowledges in his supplemental opening brief, we are bound to follow Parson. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude that CALCRIM No. 376 did not reduce the prosecutor’s burden of proof.
Cumulative Error
Defendant contends that the cumulative errors at trial with respect to the jury instructions resulted in a fundamentally unfair trial that requires reversal. Our Supreme Court has explained that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) In view of our conclusion that there were no errors in the jury instructions, defendant’s claim of cumulative error is without merit.
Sentence for Possession for Sale of Cocaine Base
Defendant pleaded no contest to possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 2). This crime is punishable by imprisonment for a period of three, four, or five years. (Health & Saf. Code, § 11351.5.) Defendant was sentenced to the midterm of four years, doubled, for this offense.
On appeal, defendant contends that a “similarly situated defendant convicted of possessing methamphetamine for sale would only incur a prison term of 16 months, 2 years, or 3 years” (Health & Saf. Code, § 11378; § 18) and that this “disparity” violates his right to equal protection under the federal and state constitutions. Defendant argues that there is no rational reason to punish a person possessing cocaine base for sale more harshly than a person possessing methamphetamine for sale because methamphetamine is “just as dangerous and harmful to society.” Defendant asserts that methamphetamine can “increase dopamine levels more than three times the level of cocaine”; “the euphoric high produced by methamphetamines lasts up to twenty-four hours, ‘much longer than the relatively brief high induced by crack cocaine’ ”; “it alters the chemistry of the brain” and thus “repeated use of methamphetamines makes ‘it difficult, and then impossible for the user to experience pleasure from anything in life but meth’ ”; it “can be purchased for a very low price”; it can be made “from common household items in a regular kitchen”; those who make it “ ‘create toxic waste sites in their kitchens, garages, and cars’ ”; “[m]anufacturing methamphetamine is very hazardous and can cause fires and explosions”; and “ ‘[t]he social and economic costs of the meth epidemic are staggering.’ ” Defendant requests that this court “judicially amend” Healthy and Safety Code section 11351.5 “to provide that the maximum penalty for possession of cocaine base is 16 months or 2 years or 3 years in accordance with the now-prescribed punishment for possession of methamphetamine for sale” and that his sentence be reduced accordingly.
The People argue that defendant has forfeited his equal protection claim because he did not raise it when the trial court sentenced him. The People also contend that the claim nevertheless “fails on the merits.” The People explain that cocaine base and methamphetamine are different drugs, with the former classified as a Schedule I narcotic and the latter classified as a Schedule II narcotic. The People assert that “Schedule I drugs have a high potential for abuse, no currently accepted medical use in treatment in the United States, and no accepted safety for use under medical supervision, ” while Schedule II drugs “have a high potential for abuse, but have a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.” The People thus maintain that “methamphetamine has some legitimate uses, [but] cocaine base does not.” The People also argue that notwithstanding the characteristics of methamphetamine as described by defendant in his opening appellate brief, “it doesn’t necessarily follow from those facts that it is irrational for the Legislature to conclude that crack cocaine still presents a larger problem in our society than does methamphetamine.”
In general, an equal protection claim may not be raised for the first time on appeal. (People v. Carpenter (1997) 15 Cal.4th 312, 362, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106; People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.) “Nonetheless, appellate courts have discretion to address constitutional issues raised on appeal [citation], particularly where the issue presented is ‘a pure question of law’ turning on undisputed facts [citation] or when ‘ “important issues of public policy are at issue...” ’ [citation].” (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.)
In this case, we determine that defendant has forfeited the equal protection claim by failing to raise it below. We also decline to consider this new claim on appeal. Defendant’s claim requires extensive factfinding and may entail the need for additional evidence, and the People should have the opportunity to respond. As such, it should have been raised for the first time in the trial court rather than on appeal.
IV. DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered modified to conform to the judgment by stating that defendant was convicted by plea, rather than by the jury, with respect to counts 2 and 3. The clerk of the superior court shall prepare a copy of the amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., Duffy, J.