Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD188023 Frederick Maguire, Judge.
BENKE, Acting P. J.
Vannil Matthews was found guilty of sale of cocaine base and possession of cocaine base. It was found true he suffered two prison priors within the meaning of Penal Code sections 667.5 and 668 and that he was twice convicted for the sale of a controlled substance within the meaning of Health and Safety Code section 11370.2, subdivision (a). Matthews was sentenced to a prison term of seven years. He appeals, arguing the trial court erred in allowing witnesses to assert their Fifth Amendment right not to testify, erred in refusing to grant those witnesses transactional immunity and erred in several respects in the manner it instructed the jury.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
A. Prosecution Case
On January 4, 2005, at approximately 5:00 p.m. San Diego Police Officer David Hall was working undercover attempting to buy drugs at various locations. At first unsuccessful, Hall was eventually contacted by Sylvia Lievanos and Hubert Barnes who offered to help him buy drugs. As the three walked down 17th Street, Barnes called out to appellant and Nathan Blake who were walking in front of them. The men stopped and waited for Hall and his companions to catch up.
Barnes told appellant and Blake they were looking for $20 worth of cocaine. Blake said they had it. Hall gave Blake a $20 bill, the serial number of which was recorded, and Blake told appellant to give Hall $20 worth of cocaine. Appellant opened a baggie, took out what was later determined to be .19 grams of cocaine and gave it to Hall. As Hall walked away, he gave the signal for other officers to arrest appellant and Blake.
After Hall walked away, another officer contacted appellant and placed him under arrest. As the officer did so, he noticed appellant was rapidly chewing what the officer suspected was cocaine. Appellant denied chewing anything and would not comply with an order to open his mouth and spit out the object. The officer forced appellant's mouth open and saw a thick white paste on his tongue. There was also an off-white, rock-like substance on appellant's teeth and tongue. The officer concluded appellant chewed and swallowed cocaine base. A search of his person revealed a pipe for smoking cocaine and the $20 bill Hall gave to Blake.
B. Defense Case
Appellant testified and denied selling or facilitating a sale of cocaine to Hall. Appellant admitted having the $20 bill Hall used to buy drugs but said he picked it up off the street before his arrest. Appellant, who was homeless, admitted possessing the cocaine pipe. He stated, however, he did so not to use it but because it was a valuable item he could sell or use as barter for other items.
DISCUSSION
A. Assertion of the Right Against Self-incrimination
Appellant argues the trial court erred when it found that defense witness Blake properly asserted his right pursuant to the United States (U.S. Const., 5th Amend.) and California (Cal. Const., art. I, § 15) Constitutions not to testify because his testimony would tend to incriminate him.
Appellant also claims the trial court erred in allowing Barnes to invoke his right against self-incrimination. Appellant apparently wished to call Barnes as a witness for the defense. However, no offer of proof was made concerning the testimony the defense expected him to give. Neither was there evidence concerning the reasons he invoked his privilege not to testify. As to Barnes, there is simply nothing to review and no basis for finding the exclusion of his testimony prejudicial.
1. Background
The prosecution's case against appellant was based on the allegation that Barnes and Lievanos arranged a sale of cocaine from appellant and Blake to an undercover officer. Blake, Barnes, Lievanos and appellant were charged in the same information with sale of cocaine base and possession of cocaine base for sale. The probation report prepared for appellant's sentencing indicates that before appellant's trial, Barnes, Blake and Lievanos pled guilty to the charges and were each granted three years' probation.
Near the end of the prosecution case, defense counsel indicated she wished to call Blake as a defense witness but anticipated he would invoke his privilege against self-incrimination and refuse to testify. At a hearing on the issue, Blake's counsel stated and Blake confirmed that after consultation Blake was asserting his right against self-incrimination and would not testify for the defense.
The trial court stated it was concerned that Blake's testimony for the defense might amount to perjury and would, thus, incriminate him. The court noted Blake's change of plea form, signed by Blake under penalty of perjury, stated: "'On January 4, 2005, I facilitated the sale of rock cocaine to [appellant]. On that date, I accepted money from an undercover officer while [appellant] handed the rock cocaine to the undercover officer. We engaged in this action in response to Hubert Barnes requesting . . . drugs.[']" The court asked appellant's counsel if Blake made a statement to her concerning the drug transaction different than that in his change of plea form.
Counsel stated Blake's statement to her was "not wholly inconsistent" with that statement. Counsel stated, however, the form was filled in by Blake's counsel. The trial court responded that Blake initialled the paragraph and signed the form under penalty of perjury. Appellant's counsel argued that people sign things all the time without reading them. She suggested Blake agreed to the statement in the change of plea form because its details were unimportant to his plea. When the trial court suggested the possibility that any lie by appellant in the change of plea form concerning appellant might not be perjury because the statement was immaterial, Blake's counsel agreed. When the court asked if counsel was requesting it compel Blake to testify, she stated she wanted the court to grant Blake immunity.
The prosecutor opposed a grant of immunity to Blake and stated he did not believe in the face of that opposition the court had the authority to grant immunity. The court disagreed, stating it did have that power.
The court asked defense counsel for an offer of proof concerning what she expected Blake's testimony to be. While somewhat rambling, defense counsel stated Blake would say he was in the business of facilitating drug sales in the area where the charged crime occurred. As such, Blake needed to know who the drug dealers were. Blake would testify that appellant was not one of the persons in the area he knew to be a dealer. Blake would testify based on his own experience concerning the details of how a facilitator helps conduct a sale. Blake would say he did not see a drug transaction between appellant and the undercover officer and that he did not hand the purchase money to appellant.
Blake's counsel stated as far as his testimony would require Blake to testify concerning his experience in and knowledge about the business of drug sales, that testimony would tend to incriminate him. Counsel stated he simply did not know what questions would be asked of Blake and that many areas of potential questioning might tend to incriminate him. The trial court added that Blake risked a charge of perjury because the statement he made under oath in his change of plea form was different than the testimony appellant's counsel expected him to give concerning whether appellant was involved in the drug sale.
The trial court concluded Blake understood the statement made in the factual basis paragraph of his change of plea form when he initialed the paragraph and signed the form under penalty of perjury. The court stated if Blake testified and contradicted the statement in the change of plea form concerning appellant's participation in the drug sale, he could be charged with perjury. The court stated in any event testimony by Blake concerning his experience and expertise in drug sales might tend to incriminate him in another case. The court stated it would not grant immunity to Blake because it was not an appropriate case to do so.
2. Law
The principle that witnesses may not be compelled to incriminate themselves has been described by our Supreme Court as a "bedrock principle" of American law embedded in the federal and state Constitutions. (People v. Seijas (2005) 36 Cal.4th 291, 304.) A witness may properly assert the privilege who has "'reasonable cause to apprehend danger from a direct answer.' [Citations.]" (Ibid.) The privilege is liberally interpreted. A witness may not avoid testifying simply by stating that to do so would be incriminating. However, "'[t]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' [Citation.]" (Ibid.) The assertion of the privilege must be allowed unless after a careful consideration of all the circumstances the answers sought "'"cannot possibly"'" have a tendency to incriminate. (Id. at pp. 304-305; see also Evid. Code, § 404.)
In deciding whether the privilege is properly invoked, a court is not permitted to consider the likelihood of an actual prosecution in which the witness's statements would be offered. The sole question is whether the answers sought might tend to incriminate the witness. (People v. Seijas, supra, 36 Cal.4th at p. 305.) It is not even necessary that the answers sought would incriminate the witness. It is enough that the witness "had reasonable cause to apprehend danger from the testimony." (Id. at p. 306.) A court may not be skeptical about a witness's apprehension that the testimony sought would be incriminating. The court "'"must . . . be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry."'" (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326-327, fn. 9.)
A further consideration in deciding whether the privilege is properly invoked is that once a witness testifies, the privilege against self-incrimination is waived with regard to relevant cross-examination. Any other rule would result in a distortion of the judicial process. Thus, while direct examination might be tailored to avoid self-incrimination, reasonable cross-examination might not be so benign. (Mitchell v. United States (1999) 526 U.S. 314, 321-322; United States v. Herrera-Medina (7th Cir. 1988) 853 F.2d 564, 567-568.)
In reviewing a trial court's ruling on a witness's assertion of the privilege against self-incrimination, we view its factual determinations deferentially but independently review the ultimate issue of whether the privilege was properly invoked. (People v. Seijas, supra, 36 Cal.4th at p. 304.)
3. Discussion
The trial court properly allowed Blake to assert his privilege against self-incrimination. Blake, whose involvement in the drug culture was much wider than his participation in the single sale in this case, had obvious multiple reasons to apprehend danger from the testimony appellant sought. First, whatever the ultimate determination on whether his statement made under oath in the change of plea form incriminating appellant was material, Blake could reasonably fear that any testimony to the contrary might subject him to a charge of perjury.
Perhaps more realistically and of greatest importance, appellant could reasonably fear the scope of the cross-examination to which he would be subjected. In questioning Blake's apparent change of position concerning appellant's involvement in the drug sale, the prosecution would reasonably explore Blake's biases and the reasons for them. The prosecutor could reasonably question Blake concerning his drug facilitating experience and his knowledge of the drug culture in which he operated. The prosecutor could ask Blake if appellant was not involved in the subject sale, who was and what was Blake's relationship to those persons. There was the possibility both in direct examination and certainly in cross-examination that Blake would make statements that would tend to incriminate him. The trial court properly allowed Blake to invoke his privilege against self-incrimination.
B. Immunity
Appellant argues that assuming Blake could properly assert his privilege against self-incrimination, the trial court erred in denying a defense request it grant Blake, over the prosecution's objection, use immunity, i.e., protection from the use against the witness of the compelled testimony and the evidence derived from it.
1. Background
During the hearing concerning whether the defense could call Blake as a witness, the trial court asked counsel what she was asking it to do. Counsel stated she wanted the court to grant Blake immunity. The prosecutor replied the trial court did not have the authority to grant Blake immunity because that power rested solely with the executive branch of government. The prosecutor stated he was not going to grant Blake immunity. The trial court disagreed with the prosecutor, stating it believed it did have that power.
The court asked for an offer of proof concerning Blake's testimony. As noted, counsel, in a difficult to follow manner, stated she expected Blake to say that he was handed a $20 bill by the undercover officer. Blake would admit he is a facilitator of drug sales and that as such it is necessary he know who the drug dealers are. He did not know appellant to be one of those dealers. It is not entirely clear whether counsel expected Blake to testify that appellant was not involved in the sale, although that appears to be the implication of counsel's comments.
The trial court refused to grant Blake immunity, stating: "I'm not going to give him immunity. It does not appear to be within the province of the appropriate cases."
2. Discussion
There is no California authority holding that a court may grant immunity to a witness when not requested to do so by the prosecution. The Courts of Appeal of this state have uniformly rejected the notion that a trial court has such power. (People v. Hunter (1989) 49 Cal.3d 957, 973.) While it has not decided the issue, our Supreme Court has repeatedly stated it is "doubtful" that a court has any inherent authority to grant a witness immunity. (People v. Samuels (2005) 36 Cal.4th 96, 127; People v. Stewart (2004) 33 Cal.4th 425, 468.) In so stating, the court has noted that with few exceptions most state and federal courts agree. (People v. Hunter, supra, 49 Cal.3d at p. 973; In re Williams (1994) 7 Cal.4th 572, 609-610.)
While repeatedly stating that it is "doubtful" a court has the inherent authority to grant witness immunity and noting a great majority of courts have held the authority does not exist, our Supreme Court has also repeatedly quoted this dicta from People v. Hunter, "it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant's right to compulsory process and a fair trial." (People v. Hunter, supra, 49 Cal.3d at p. 974.)
Based on Government of Virgin Islands v. Smith (3rd Cir. 1980) 615 F.2d 964, 972, one of the few cases to recognize an inherent judicial power to grant witness immunity, Hunter and later California Supreme Court cases have hypothesized two situations in which the authority might exist for a court to independently grant immunity to a defense witness. The first is when the testimony sought is clearly exculpatory, essential and there is no strong countervailing governmental interest in granting immunity. The second situation is when the prosecution intentionally refuses to grant immunity for the purpose of suppressing essential defense evidence. (People v. Stewart, supra, 33 Cal.4th at pp. 469-470; People v. Hunter, supra, 49 Cal.3d at pp. 974-975.)
The court in People v. Cooke (1993) 16 Cal.App.4th 1361, noted the above-cited dicta in People v. Hunter and stated: "We decline appellant's invitation to declare a doctrine of judicial use immunity for defense witnesses in criminal cases. Although [the Supreme Court in Hunter could] hypothesize cases in which judicially conferred use immunity to a third party witness might be necessary to vindicate a defendant's rights, no California Court of Appeal or Supreme Court case has ever granted such immunity to a defense witness, and we will not do so now. The relief which appellant here requests should be granted, if at all, by our state's highest court: We conclude that the trial court did not err by refusing to grant use immunity to appellant's witness." (Id. at p. 1371.)
Whether a court has the independent authority to grant immunity to a defense witness is an issue that raises a host of serious policy considerations. In light of our Supreme Court's repeated statements that it is doubtful such authority exists and the fact that a great majority of courts have so concluded, we agree with the court in Cooke that if such authority exists, it must be our Supreme Court that declares it. The trial court in this case did not err in denying Blake immunity.
C. Instruction Concerning Invocation of Privilege
Appellant argues the trial court erred when it instructed the jury in the terms of CALJIC No. 2.25 that when a witness refuses to testify to any matter relying on the privilege against self-incrimination, the jury was to draw no inference as to the believability of the witness or whether the defendant was guilty or any other matter at issue in the trial. Indeed, appellant argues the trial court had a sua sponte duty to instruct the jury that Blake and Barnes refused to testify because they feared a perjury prosecution and that the jury could draw all appropriate inferences regarding appellant's guilt from their refusal to testify.
The same concept is contained in Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 320.
1. Background
In opening statement, defense counsel told the jury that Barnes, who Officer Hall would testify arranged the sale of cocaine from appellant and Blake, would testify he did not know appellant.
As noted above, by the end of the prosecution case it was clear that both Blake and Barnes would invoke their right against self-incrimination and not testify for the defense. The trial court denied appellant's request that the two be granted immunity.
Appellant testified in his own defense. On direct examination he stated he did not know Blake and that he did not sell or facilitate the sale of drugs to Hall.
On cross-examination, appellant was asked if he saw Blake do anything wrong on the afternoon the men were arrested. Appellant stated he did not. The prosecutor then stated in the form of a question that if that were the case, Blake would have no reason to plead guilty to facilitating a crime with appellant. Appellant agreed. The prosecutor then asked: "And you know he pled guilty to facilitating a crime for you, didn't you?" Appellant stated he understood that Blake had done so. Defense counsel did not object to the prosecutor's questions. The prosecutor then asked if Lievanos had facilitated a drug sale for him. After appellant said "no," the trial court interposed its own objection−it did not state the ground−and told the prosecutor to move on.
At the completion of appellant's testimony, the prosecutor asked to introduce, pursuant to Evidence Code section 452.5, the change of plea forms for both Blake and Lievanos. No offer of proof was made but presumably the prosecutor wanted to introduce statements by the two in their change of plea forms that they had, with appellant, facilitated the sale of rock cocaine to Hall.
Evidence Code section 452.5, subdivision (b), states that a certified record of conviction is admissible under the official records exception to the hearsay rule (Evid. Code, § 1280) "to prove the commission, attempted commission, or solicitation of a criminal offense, . . . or other act, condition, or event recorded by the record."
The trial court denied the prosecutor's request. The court noted that in their change of plea forms Blake and Lievanos stated appellant was involved with them in the crimes. The court concluded those statements were "collateral" and inadmissible.
While there is nothing in the record directly so stating, it appears, based on comments made at the instructions conference, that defense counsel requested the trial court instruct pursuant to CALJIC No. 2.25 that the jury was to draw no inference concerning the defendant's guilt or any other matter based on a witness's invocation of the right against self-incrimination.
The prosecutor stated that because the jury was not told Blake and Barnes refused to testify, the instruction was irrelevant. The trial court noted, however, the instruction is appropriate when the jury has become aware that a witness invoked the right not to testify. The trial court and the parties speculated that while neither Blake nor Barnes invoked in the jury's presence, the jury might conclude, based on defense counsel mentioning in opening statement that Barnes would testify and Blake's presence in the hall outside the courtroom (the jury had seen a picture of Blake), that both had refused to testify.
The prosecutor stated that if the instruction was given, someone would have to tell the jury Blake and Barnes invoked their right against self-incrimination. The prosecutor suggested the court give CALJIC No. 2.25 and tell the jury Blake and Barnes refused to testify based on the assertion of their rights under the Fifth Amendment.
The trial court instructed the jury in the terms of CALJIC No. 2.25. The court informed the jury that both Blake and Barnes were called as witnesses but invoked their Fifth Amendment right not to testify.
During opening argument, the prosecutor noted evidence was presented concerning Lievanos, Barnes and Blake. The prosecutor stated: "[T]he judge told you two of them pled the Fifth." The prosecutor told the jury not to speculate about why those people were not on trial. He stated their guilt or innocence was irrelevant in deciding appellant's culpability. The prosecutor stated: "There may be good reasons why those people are not here today."
In her argument, defense counsel did not mention the refusal of Blake and Barnes to testify.
2. Law
Appellant's argument the trial court was required sua sponte to instruct that Blake and Barnes invoked their Fifth Amendment rights because they feared a perjury charge and that the jury could draw all reasonable and appropriate inferences from this concerning the witness's credibility and the guilt of innocence of the accused is based on People v. Garner (1989) 207 Cal.App.3d 935.
Garner dealt withextraordinary and unique facts. Garner was a murder case. The prosecution's sole evidence connecting the defendant to the crime was the preliminary hearing testimony of Alonso Phillips. Phillips refused to testify at trial because he claimed his preliminary hearing testimony implicating the defendant was a lie. Phillips feared if he testified truthfully at trial, he risked being charged with perjury. Phillips invoked his rights before the jury but did not discuss his reasons for refusing to testify. The trial court instructed the jury in the terms of CALJIC No. 2.25 that no inference as to Phillips's credibility or the guilt of the defendant was to be drawn from the witness's invocation of rights. (People v. Garner, supra, 207 Cal.App.3d at pp. 937-938.)
The court in Garner stated that the giving of CALJIC No. 2.25 was improper when the witness's very reason for remaining silent was the claimed falsity of an earlier statement now offered against the defendant. The court stated under those circumstances it was "eminently reasonable" to draw an unfavorable inference about the defendant's credibility. The court stated the reasonable inferences under the circumstances were (1) that the witness's earlier testimony was false or (2) that he was lying about his reason for not testifying at trial. (People v. Garner, supra, 207 Cal.App.3d at pp. 938-939.)
The court in Garner noted the witness's refusal to testify and the giving of CALJIC No. 2.25 placed the prosecutor in the enviable position of arguing without fear of meaningful contradiction that the witness's refusal to testify was based solely on his fear of gang retaliation. (People v. Garner, supra, 207 Cal.App.3d at p. 939.)
The court noted the indispensible nature of Phillips's testimony to the prosecution's case. It observed that at trial the defendant was totally precluded from examining him and that the giving of CALJIC No. 2.25 "effectively precluded the jury from determining when, if ever, the one witness against [the defendant] was speaking truthfully." (People v. Garner, supra, 207 Cal.App.3d at pp. 940-941.)
The court in Garner summed up its ruling in this way: "When the People wish to go forward in reliance upon the testimony of a recanting witness, fundamental fairness would require, at a minimum, that the jury (1) be advised precisely why the witness is being allowed to refuse to testify, i.e., an alleged fear of a perjury prosecution, and (2) be instructed that they should draw all reasonable and appropriate inferences therefrom concerning the witness's credibility and the guilt or innocence of the accused." (People v. Garner, supra, 207 Cal.App.3d at p. 941.)
3. Discussion
This case is not Garner. Here, the prosecution's case was based on the testimony of police officers and physical evidence pointing to appellant's guilt. In its case-in-chief, the prosecution offered no testimony from Blake in any form stating that appellant sold drugs to the undercover officer. It was only during the prosecution's cross-examination of appellant that a brief reference was made to Blake pleading guilty and implicating appellant in the sale. The defense did not object to the introduction of that evidence or ask that appellant's answer be stricken.
Given the unique facts of Garner, the prosecution, by not granting his star witness immunity and by creating the false impression that the witness refused to testify not because he feared prosecution based on his prior claimed perjurous testimony but because he feared gang retaliation, was able to distort the central feature of his case against the defendant. That did not occur in the present case. The prosecution's case here was always clearly and almost completely based on the testimony of police officers and the physical evidence presented.
Under the circumstances in this case, we conclude that the giving of a Garner instruction, i.e., that Blake and Barnes refused to testify because they feared a perjury prosecution and that the jury could draw all appropriate inferences regarding appellant's guilt from their refusal, would have itself distorted and potentially confused the jury. We think it was better in this case to simply tell the jury to draw no inferences from the invocation by Blake and Barnes of their right to silence.
D. Instruction on Third-party culpability
Appellant argues the trial court erred in denying his request to instruct concerning the concept of third-party culpability.
1. Background
Defense counsel submitted a special instruction, stating: "Third-party culpability evidence has been offered that a third party is a perpetrator of the charged offense. It's not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal it is required that such evidence raised [sic] a reasonable doubt in your mind of the defendant's guilt."
The prosecutor objected. It is difficult to follow defense counsel's explanation for why she thought the instruction necessary. She stated her theory was that the police saw three people approach two people. Counsel stated: "Maybe [the police] made a mistake. Maybe it wasn't [appellant] because by the time he [apparently a police officer] looked up it was the other third guy. And there are some other mix ups in the [police tape] that are saying the 20 given to Blake [sic]. But then another guy said that it went the opposite way. So there is an inference, and a strong inference, that someone else was there."
The trial court concluded that appellant's defense was not third-party culpability but rather misidentification. The court stated that the jury would be fully instructed concerning identification and denied the request to instruct on third-party culpability.
2. Discussion
In many instances, the defenses of misidentification and third-party culpability are very similar. In both, the defendant contends that whether the charged crime occurred or not, he did not commit it. In the defense of misidentification, the defendant argues that because of some error of perception, he was falsely identified as the perpetrator. In a defense based on third-party culpability, the defendant claims he was misidentified as the perpetrator and attempts to raise a reasonable doubt of his guilt based on evidence that a particular third-party committed the crime.
Before an instruction on third-party culpability is given, there must be substantial evidence capable of raising a reasonable doubt of the defendant's guilt. There must be evidence linking the third party to the actual perpetration of the crime. Evidence of mere motive or opportunity for a third party to commit the crime is insufficient. (People v. Prince (2007) 40 Cal.4th 1179, 1242.)
In this case, appellant's defense was misidentification. There was no substantial evidence linking a third party to the commission of the crime. The trial court properly refused the offered instruction on third-party culpability and fully instructed the jury concerning the defense of misidentification. In particular, the court instructed in the terms of CALJIC No. 2.91: "The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crimes with which he is charged. [¶] If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty."
E. Instruction on Unanimity
Appellant argues his conviction on count 2, possession of cocaine base for sale, must be reversed because the trial court failed to instruct the jury that it was required to unanimously agree on the act supporting that conviction.
Appellant notes he was charged with a single count of possession of cocaine base for sale but the evidence revealed two possible acts of such possession; the first when he provided Officer Hall .19 grams of the substance and the second when cocaine base was seen in appellant's mouth at the time of his arrest.
In a criminal case, a verdict must be unanimous. When a defendant is charged with a single crime but the evidence shows separate acts on which a convict could be based, the prosecutor must either elect the act on which the jury must agree or the jury must be instructed it must agree on a single act supporting conviction. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
Nominally, in this case the evidence revealed two acts on which conviction could be based. The act of providing the undercover officer cocaine base as part of a sale or on the act of chewing and swallowing what in an officer's opinion was cocaine. Of course, the prosecutor was relying on the act of providing the officer the cocaine during the sale and he adequately so informed the jury during argument.
At sentencing, the trial court struck both section 667.5, subdivision (b), prison priors. The minutes correctly so reflect. However, the abstract of judgment indicates that sentence on the prison priors was merely stayed. The abstract of judgment is ordered amended to delete reference to the two section 667.5, subdivision (b), priors.
At sentencing, the trial court imposed the middle term of four years on count 1. The trial court imposed a term of four years on count 2 but stayed its imposition pursuant to section 654. The abstract of judgment, however, fails to indicate that a sentence of four years was imposed as to count 2. The abstract of judgment is ordered amended to show that term.
At sentencing, the trial court imposed a term of three years on count 1 based on the 11370.2, subdivision (a), finding. While the trial court could have been more precise in its ruling, it is clear the court struck the remaining Health and Safety Code section 11370.2, subdivision (a), finding on count 1 and both 11370.5, subdivision (a), findings on count 2. The abstract of judgment, however, indicates that one of those findings as to count 2 was stayed. The abstract of judgment is amended to delete any reference to the 11370.2, subdivision (a), findings as to count 2.
DISPOSITION
The abstract of judgment is ordered amended to delete any reference to findings made pursuant to section 667.5, subdivision (a). It is ordered amended to delete any reference to the Health and Safety Code section 11370.2, subdivision (a), findings as to count 2. It is ordered amended to indicate as to count 2 that the trial court imposed a term of four years. In all other respects the judgment is affirmed.
WE CONCUR: HUFFMAN, J., RION, J.