Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01167
BUTZ, J.Defendants Gregorio Ortega-Mendoza, Pedro Morfin Alonso and Esteban Gaspar-Hurtado were convicted after a jury trial of one count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)--count one) and one count of possession of methamphetamine for sale (§ 11378--count two). The jury also found true an enhancement allegation that the amount of methamphetamine exceeded one kilogram (§ 11370.4, subd. (b)(1)). Defendant Gaspar-Hurtado was also convicted of a second count of possession of methamphetamine for sale (§ 11378--count three) and the jury found true an enhancement allegation as to him that the amount exceeded four kilograms (§ 11370.4, subd. (b)(2)).
Undesignated statutory references are to the Health and Safety Code.
The court sentenced defendant Gaspar-Hurtado to nine years in state prison: the upper term of four years on count one, plus a consecutive term of five years for the one-kilogram enhancement (§ 11370.4, subd. (b)(1)). Punishment for counts two and three were stayed.
Defendants Ortega-Mendoza and Alonso were each sentenced to five years in state prison: the lower term of two years on count one, plus a consecutive three-year term for the one-kilogram enhancement (Health & Saf. Code, § 11370.4, subd. (b)(1)). The court stayed imposition of punishment on count two pursuant to Penal Code section 654.
The defendants appeal from the ensuing judgments of imprisonment in the state prison. They contend the trial court erred prejudicially in admitting a stipulation of the truth of every fact necessary to impose an enhancement without giving a Boykin-Tahl admonition.
Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
Defendant Alonso also contends the trial court erred in: (1) refusing evidence of his mental instability under Evidence Code section 352; (2) denying his requested instruction on knowledge of the presence and nature of the contraband; (3) failing to strike the enhancement as to him; and (4) finding there was sufficient evidence to uphold his conviction.
Defendant Gaspar-Hurtado contends that the trial court erred in: (1) failing to instruct sua sponte on the defense of entrapment; (2) imposing the Health and Safety Code section 11370.4, subdivision (b)(2) enhancement on him; (3) failing to strike the enhancement allegations that were stayed; (4) imposing laboratory analysis (Health & Saf. Code, § 11372.5, subd. (a)) and drug program (id., § 11372.7, subd. (a)) fees on stayed counts; (5) imposing jail booking and classification fees (Gov. Code, § 29550.2, subd. (a)) without determining his ability to pay; and (6) imposing the upper term based on facts neither admitted nor determined by the jury in violation of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
Only the contentions that the trial court erred in imposing laboratory analysis and drug program fees on stayed counts and that, as to defendant Gaspar-Hurtado, the trial court erred under Cunningham have merit. We shall modify the judgments to remove the unwarranted fees and, as modified, affirm them, except as to defendant Gaspar-Hurtado’s judgment, we also shall remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2005, Detective Salvador Robles of the Sacramento County Sheriff’s Department was acting as an undercover officer in a narcotics trafficking investigation concerning defendant Gaspar-Hurtado. Robles was assigned to introduce another undercover officer, Detective Avila, to defendant Gaspar-Hurtado and do a “money flash.” In a money flash the suspected trafficker is shown cash to induce the sale of a large amount of narcotics.
Shortly after noon Detective Robles telephoned defendant Gaspar-Hurtado and arranged a meeting in a parking lot at Stockton Boulevard and Fruitridge Road. About 10 minutes later Robles and Detective Avila, in separate cars, arrived and parked five or six stalls apart. A few minutes later defendants Gaspar-Hurtado and Ortega-Mendoza arrived and parked next to Robles. Defendant Gaspar-Hurtado affirmed that he was ready to do business. Robles took him to Avila’s car and showed him approximately $65,000 in cash in a brown paper bag.
Negotiation ensued about the amount of methamphetamine that $65,000 would purchase. It was agreed that nine pounds would be the amount. Defendants and the officers left.
Defendant Gaspar-Hurtado telephoned Detective Robles later that afternoon and said he would be able to deliver the next day. They spoke on the telephone a few times during the course of the day of the sale. On that day Narcotics Investigator Marcus Gregory of the Sacramento County Sheriff’s Department was assigned to watch the driveway of the apartment complex where defendant Gaspar-Hurtado lived and also worked in maintenance of the complex. About 3:45 p.m. Gregory saw defendant Gaspar-Hurtado drive away from the complex. This information was relayed to Detective Robles who telephoned defendant Gaspar-Hurtado about 4:00 p.m.
Defendant Gaspar-Hurtado confirmed that everything was ready and told Detective Robles to go to the same place they met the day before. After Detectives Robles and Avila arrived there they were informed by other officers that defendant Gaspar-Hurtado was on the way and that the car he was in was being followed by another.
Investigator Gregory had seen defendant Gaspar-Hurtado’s car reenter the apartment complex around 4:05 p.m. A little while later Sheriff’s Detective Kevin Steed saw defendant Gaspar-Hurtado unlock the maintenance shed at the apartment complex and enter it. After a minute he came back out. He met defendant Ortega-Mendoza, who was wearing a jacket, at the entry and they walked out of view. Gregory then saw defendant Alonso standing out on the sidewalk at the entrance to the complex looking up and down the street. Thereafter, all of the defendants came to the shed. Defendant Ortega-Mendoza was now carrying his jacket. It looked kind of bulky as if he might be carrying something. They unlocked the shed and reentered.
In about 10 minutes defendant Ortega-Mendoza came out with a white five-gallon bucket. He was followed by the other defendants. Investigator Gregory saw them depart the complex. Defendants Alonso and Ortega-Mendoza were in a white Maxima (registered in the name of defendant Alonso). Defendant Gaspar-Hurtado followed in his car.
Defendant Gaspar-Hurtado arrived at the rendezvous between 4:15 and 4:20 p.m. He greeted Detective Robles and told him “the product” was coming. As they waited, defendant Gaspar-Hurtado looked around the parking lot and then began giving directions on his cell phone telling someone how to get to the location. A white vehicle arrived and defendant Gaspar-Hurtado announced: “He’s here.”
Detective Robles said he would pay the money as soon as he saw the product. Defendant Gaspar-Hurtado said he wanted Avila to wait in the car and then escorted Robles to the white car. Defendant Alonso was in the driver’s seat, defendant Ortega-Mendoza was in the front passenger seat. Defendant Alonso looked at Robles then looked away. Defendant Gaspar-Hurtado opened the back door and said it was right there. Robles saw the big paint bucket and asked him to open it. Inside Robles saw what appeared to be methamphetamine. He headed back to his car and gave the signal to other police waiting in the parking lot to arrest the defendants.
Detective Justin Elliott of the Galt Police Department processed the evidence at the scene of the arrest. He testified to the weight he determined of the nine packages containing methamphetamine found in the bucket in defendant Alonso’s car. Also found in that car was a cell phone contract made by defendant Alonso that day. The telephone number called by defendant Gaspar-Hurtado to give directions to the parking lot rendezvous site was defendant Alonso’s new phone.
After defendants were arrested, about 5:00 p.m., the maintenance shed was searched. In the shed were two plastic bags. Investigator Gregory weighed them and tested for methamphetamine. Both tested positive. He testified that each package contained approximately one pound of crystal methamphetamine. A typical dose of methamphetamine is a tenth of a gram.
DISCUSSION
I. Alleged Boykin-Tahl Error (All Defendants)
All of the defendants contend the trial court erred prejudicially in admitting a stipulation of the truth of every fact necessary to impose the section 11370.4 enhancements without a Boykin-Tahl admonition and waiver. They argue that a stipulation concerning the weight and nature of the suspected drugs seized from the car and storage shed was tantamount to a guilty plea as to the section 11370.4 enhancements. Hence they submit that under the rule in In re Yurko (1974) 10 Cal.3d 857 (Yurko), the trial court erred in failing to make a record of waiver by defendants of the right to trial of the matters admitted. (See Boykin, supra, 395 U.S. 238 [23 L.Ed.2d 274]; Tahl, supra, 1 Cal.3d 122.) The Attorney General replies that Yurko is inapposite because the stipulation concerned an enhancement that is not applicable unless defendants were convicted of the underlying offenses.
The Attorney General cites People v. Adams (1993) 6 Cal.4th 570, 575-583, for the proposition that Yurko does not pertain to an evidentiary stipulation concerning an enhancement allegation that is not applicable unless the defendant is convicted of the offense to which the allegation is attached. However, Adams teaches that “the Boykin-Tahl requirements are applicable to an evidentiary stipulation which . . . admit[s] the truth of . . . every fact necessary to imposition of the additional punishment other than conviction of the underlying offense.” (Adams, at p. 580, italics added.)
“Conviction of the underlying offense is, of course, a necessary prerequisite to imposition of any enhancement to the term for the offense. That a defendant must be convicted of the [underlying] secondary offense does not distinguish the [Penal Code] section 12022.1 enhancement from that in Yurko.” (Adams, supra, 6 Cal.4th at p. 580, fn. 6.)
Section 11370.4, subdivision (b) in pertinent part, provides:
“(b) Any person convicted of a violation of, or of conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a substance containing methamphetamine . . . shall receive an additional term as follows:
“(1) Where the substance exceeds one kilogram by weight, or 30 liters by liquid volume, the person shall receive an additional term of three years.
“(2) Where the substance exceeds four kilograms by weight, or 100 liters by liquid volume, the person shall receive an additional term of five years.”
The stipulation admitted the only fact necessary to imposition of the additional punishment other than conviction of the underlying offense: the weight of the seized substances in excess of one kilogram as to the car seizure and four kilograms in the aggregate. Thus, it would appear under Yurko and its progeny we are constrained to deem the lack of compliance with the Boykin-Tahl requirements error. Assuming that is so, we turn to the question of prejudice.
However, we note the observation that People v. Newman (1999) 21 Cal.4th 413, 422, footnote 4, in treating this as an open question following Adams, “plants a seed of doubt as to this issue.” (Newman, at p. 423 (conc. opn. of Werdegar, J., joined by Mosk, J.); Adams, supra, 6 Cal.4th 570.)
In People v. Howard (1992) 1 Cal.4th 1132, the Supreme Court decided that Yurko error is not reversible per se. “[Y]urko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (Howard, at p. 1175.) In People v. Stills (1994) 29 Cal.App.4th 1766, the Attorney General argued that Yurko error concerning a five-year enhancement for a prior serious felony conviction was harmless because “there was no reasonable probability that the defendant would have denied the prior or that the prior would not have been found to be true.” (Stills,at p. 1770.) The Stills court replied: “[W]e do not think the ‘harmless error’ rule of [People v. Guzman (1988) 45 Cal.3d 915, 968] can be extended to the total absence of any admonition, i.e., the circumstance in this case.” (Stills,at p. 1771.)
In this case there is no indication of partial Boykin/Tahl admonitions before the acceptance of the challenged stipulation. However, unlike Stills and most other cases in this area, this is not one concerning admission of a prior conviction. Prior conviction cases can present complex technical questions concerning the adequacy of the conviction and of the records offered as proof. In such a case it can be inherently difficult to ascertain the possible harm of loss of trial opportunity rights on the record presented after an admission of the prior.
Here the stipulation, as to the enhancement allegation, was used to show a simple, relatively incontrovertible physical fact as to the seized substance: its weight. Moreover, before the stipulation was accepted, police officer witnesses had already testified, without objection, impeachment, or any hint of controversy, as to the weight of the component lots of the seized substance containing methamphetamine, which they found by weighing it in the field. The purpose of the stipulation was to spare calling and examining a police chemist to give duplicative testimony.
On such a record, it makes more sense, in our view, to deem Yurko error, if any, harmless. (See Cal. Const., art. VI, § 13.) If, notwithstanding the contrary indications of the record, there is any reasonable basis to claim prejudice from a Yurko error, defendants should be relegated to the remedy of habeas corpus, rather than imposing an unnecessary, futile, and burdensome partial retrial by rote. Defendants’ contention of prejudicial Yurko error is not meritorious.
II. Defendant Alonso
A. Evidence of Mental Instability (Defendant Alonso)
Defendant Alonso contends that the trial court erred in excluding evidence that he is afflicted with mental disease or defect under Evidence Code section 352. He argues that the court abused its discretion because the evidence was highly probative on the issue of whether he was an accomplice in the drug deal or an unwitting dupe who was just along for the ride. The Attorney General replies that there was no abuse of discretion.
Evidence Code section 352 is as follows: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Defendant Alonso offered testimony of family members that he has suffered from and been treated for mental disabilities for many years, has never been able to live alone, and has attempted suicide. He also offered testimony of a psychologist that he suffered from anxiety, depression and panic disorder. The ostensible purpose of the testimony was to show he was not the sort of reliable person who would have been used as an accomplice in this kind of drug transaction.
As to the family testimony, the trial court ruled that: family members were not capable of rendering opinions on mental illness such as depression; there was no specific offer of behavior other than living as an adult with his sister; and, to the extent there was relevance to the defense theory, “the prejudicial effect in terms of evoking sympathy for [defendant Alonso], the consumption of time outweighs the probative value.”
As to the psychologist, the court said:
“The Court is going to deny the request here and I want to give an explanation.
“First is, consistent with [defense counsel’s] argument, I believe it was last Thursday, he is seeking it for the purpose that has been articulated here as opposed to, for example, going to the issue of whether or not [defendant] Alonso can form the necessary intent required for the crimes in question.
“In that regard, the Court notes that the foundation that exists at this point is limited to essentially what he has testified to, that is, the opinion with regard to the normal manner and character.
“Normal manner and character of people in these drug sales activit[ies], as elicited from these experts from the prosecution.
“There is nothing at this point beyond that with regard to the specific sequence of events that occurred on the days in question involving [defendant] Alonso.
“But more important, or at least of equal importance, is the fact that the report is not relevant for the purposes testified or offered.
“Essentially, we have a man in accordance with the report who presents himself in a general and frank and open manner.
“He doesn’t demonstrate any abhorrent [sic] behavior, his intelligence is at least average. He has no difficulty with immediate, recent or remote memory, his language functions are intact and continues on in that same vein.
“He does have a history of abuse as a child who has depressive problems and he has a psychological age which is seven according to this report.
“To the extent it has any relevance to the theory that has been articulated by [defense counsel], it’s slight[] to nonexistent, and there is substantial prejudicial and time consumption effects involved in opening up this area juxtaposed to that [s]light probative value. There [are] the times I mentioned.
“More than that, there is the invocation of sympathy for [defendant] Alonso and also confusion with regard to the issues that are really before this Court.
“Based on the state of the record at this point in time, the request is denied.”
The question is whether the trial court abused its discretion. “‘Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (People v. Woodward (2004) 116 Cal.App.4th 821, 832, citations omitted.)
It is clear the trial court examined both the offers of testimony. As the prosecutor pointed out, the theory of relevancy was derivative. It depended, inter alia, upon the other defendants having knowledge of defendant Alonso’s claimed mental or emotional defects and the likelihood that a methamphetamine dealer would avoid associating with such a person in such a transaction. Because the relevance of the prior mental health incidents was tenuous and the risk of confusing the jury palpable, the trial court did not abuse its discretion in excluding this evidence.
B. Request for Special Instruction (Defendant Alonso)
Defendant Alonso contends that the trial court erred in refusing his request for additional instruction on the element of knowledge. In the trial court he requested, with respect to the offense of transportation of methamphetamine, the court instruct that: “Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unlawful transportation or sale.” On appeal he argues that this was a pinpoint instruction required to fully apprise the jury of the element of knowledge with respect to the branch of section 11379 pertaining to offering to sell methamphetamine and as regards aiding and abetting liability. The Attorney General notes that defendant Alonso is shifting his ground for requesting the instruction on appeal and submits the instruction was properly refused as duplicative.
Defendant Alonso’s arguments pertaining to offering to sell methamphetamine and as regards aiding and abetting liability are not cognizable because he did not request such instruction. As to the offense of transportation of methamphetamine, the jury was instructed: “In order to prove this crime, each of the following elements must be proved: (1) a person transported . . . methamphetamine, a controlled substance; [and] (2) . . . the person knew of its presence and nature as a controlled substance . . . .” (See CALJIC No. 12.02.) A party cannot complain that the jury was not instructed in his or her requested terms, so long as the instructions given substantially cover the issues in the case. (See, e.g., Dufour v. Central Pacific R. R. Co. (1885) 67 Cal. 319, 324; Boyce v. California Stage Co. (1864) 25 Cal. 460, 470, overruled in part on a different ground in People v. Hutchinson (1969) 71 Cal.2d 342, 347-348.) The trial court did not err in refusing to reiterate the requirement of knowledge as to this offense.
C. Sufficiency of the Evidence (Defendant Alonso)
Defendant Alonso contends that there is no substantial evidence to support his conviction. He argues that there is no evidence that he knew there was methamphetamine in the bucket in his car. The Attorney General replies there is ample evidence to support the inference of such guilty knowledge.
“In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” (People v. Miranda (1987) 44 Cal.3d 57, 86.) We briefly relate the evidence in the requisite light.
On a Tuesday, defendants Ortega-Mendoza and Gaspar-Hurtado made arrangements to sell the next day methamphetamine worth a great deal of money to first-time buyers in Sacramento. On Tuesday, defendant Gaspar-Hurtado telephoned defendant Alonso and requested that he come from Mountain View to Sacramento on the day of the sale. On Tuesday, defendant Gaspar-Hurtado also made several calls to the Modesto area, inferably to arrange for methamphetamine to sell.
On Wednesday, defendant Alonso came to Sacramento, via Modesto. While in Modesto he contracted for a cellular phone, under an alias. He used the new phone several times that day to talk to defendant Gaspar-Hurtado. Shortly before the methamphetamine was transported from the apartment complex to the sale site, defendant Alonso was standing at the entrance, acting like a lookout. Defendant Gaspar-Hurtado telephoned defendant Alonso and he then joined the other defendants inside the shed where the methamphetamine was inferably packaged immediately preceding departure for the sale site. Defendant Gaspar-Hurtado asked defendant Alonso to give defendant Ortega-Mendoza a ride and they all left the shed. Before driving off, defendant Ortega-Mendoza carried the large bucket of packaged methamphetamine and placed it in the back of defendant Alonso’s car before getting into the passenger seat. Defendant Gaspar-Hurtado followed right behind them in his own car.
Defendant Gaspar-Hurtado arrived at the sale site first and, after checking the scene, directed the other defendants to come ahead. He did so by talking to defendant Alonso on his new cell phone. Defendant Alonso then drove to the site and parked, waiting with defendant Ortega-Mendoza until defendant Gaspar-Hurtado walked up with Detective Robles and opened the back door of his car.
In these circumstances, a rational trier of fact could find beyond a reasonable doubt that defendant Alonso was aware he was delivering the methamphetamine for the sale. That is a far more reasonable account of the facts than that drug dealers would involve an innocent bystander in a transaction involving a very expensive load of contraband. The jury was not constrained to credit his testimony that he was innocently giving defendant Ortega-Mendoza a ride to the store at the request of defendant Gaspar-Hurtado. As the Attorney General notes, it lacked verisimilitude. Inter alia, defendant Alonso failed to explain convincingly his incuriosity about the bucket riding to the store, why he was needed for transporting defendant Ortega-Mendoza when defendant Gaspar-Hurtado was going to the same store, the two-car tandem, defendant Gaspar-Hurtado leaving after and arriving before him, and for the telephoned directions from defendant Gaspar-Hurtado.
D. Weight Enhancement (Defendant Alonso)
Defendant Alonso contends that the trial court erred in failing to strike the section 11370.4 enhancement at his request. He argues that the court abused its discretion in denying the request because he only played a “minimal role” in the offense, noting his lack of prior convictions, and his mental or emotional difficulties. The Attorney General replies there was no abuse of discretion.
Section 11370.4, subdivision (e) provides: Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.” Thus, the trial court is accorded sentencing discretion in this regard.
People v. Carmony (2004) 33 Cal.4th 367 summarizes the analytic perspective on review of sentencing discretion as follows: “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he 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.”’ [Citations.] Second, 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.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
As related in our discussion of defendant Alonso’s no substantial evidence contention, there is evidence to support the conclusion he was a knowing participant in the distribution of more than three kilograms, a very large amount, of a socially pernicious and individually destructive controlled substance, methamphetamine. Notwithstanding the lack of a prior record, the greater culpability of a codefendant, and possible mental and emotional problems, a reasonable person could find that he should be subject to the enhanced punishment prescribed for distribution of more than one kilogram. As the Attorney General notes, the trial court had already granted defendant Alonso lenity in choosing the low term of two years for the underlying offense. Defendant Alonso fails to establish the trial court’s abuse of discretion in failing to strike the enhancement.
III. Defendant Gaspar-Hurtado
A. Failure to Instruct on Entrapment (Defendant Gaspar-Hurtado)
Defendant Gaspar-Hurtado contends that the trial court erred in failing to instruct sua sponte on the defense of entrapment. He argues that there is substantial evidence to support the defense because the police officer initiated the transaction with the offer to buy methamphetamine, expressed ongoing interest in consummating the sale, and offered to pay a large amount of money. The Attorney General replies there is nothing in this which could warrant an entrapment finding.
“The trial court was required to instruct the second jury on the defense of entrapment if, but only if, substantial evidence supported the defense. In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. ‘[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect--for example, a decoy program--is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.’ [¶] . . . [¶] . . . Merely providing people in general an opportunity to commit a crime is not an improper enticement or otherwise entrapment. ‘[T]he rule is clear that “ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime.”’” (People v. Watson (2000) 22 Cal.4th 220, 222-223, citations omitted.)
Initiating the transaction with the offer to buy methamphetamine is unlikely to induce a normally law-abiding person to commit the offense. An offer of exorbitant consideration can count as an unusually attractive incentive amounting to entrapment. (See People v. Barraza (1979) 23 Cal.3d 675, 690.) However, the evidence was that the amount offered here was close to or within the going-rate range. Defendant Gaspar-Hurtado argues that the value of the consideration alone suffices, if high. Offering to pay a large amount of money is neither exorbitant consideration nor an unusually attractive incentive when it is at or close to the market value for the contraband. The purpose of these criteria for the entrapment defense is to avert the creation by state actors of freakish crimes that would not ordinarily occur given the existing incentives. Where the officers hew to those existing incentives, that purpose is satisfied. Finally, expressing ongoing interest in consummating the sale is not badgering. In sum, there is no substantial evidence of entrapment and the trial court had no duty to so instruct.
B. Weight Enhancement (Defendant Gaspar-Hurtado)
Defendant Gaspar-Hurtado points out the trial court imposed a five-year consecutive term for the one-kilogram enhancement pursuant to section 11370.4, subdivision (b)(1). That particular weight enhancement permits the court to impose only an additional term of three years. As the jury returned a true finding of the four-kilogram enhancement as to defendant Gaspar-Hurtado, he surmises the trial court may have meant to refer to the four-kilogram enhancement when it imposed the five-year consecutive term. If this was the court’s intention, he contends that the trial court erred in imposing the section 11370.4, subdivision (b)(2) enhancement. He argues that imposing this enhancement to the transportation count--count one--is an unauthorized sentence because this enhancement allegation, while found true, “was tied directly to counts [two] and [three], punishment for which was stayed pursuant to Penal Code section 654.” He concedes that under People v. Estrada (1995) 39 Cal.App.4th 1235 (Estrada), section 11370.4 weight enhancements may aggregate quantities across counts; however, he submits that when a count is stayed under Penal Code section 654, all punishment on the count is stayed, and aggregation is no longer proper. The Attorney General replies that under Estrada the sentence is authorized because the enhancement is concerned with the total amount of drugs and not the varied underlying narcotics crimes in issue.
Defendant Gaspar-Hurtado was sentenced for transportation of methamphetamine under count one of the information, which is drafted so that the references to the four-kilogram enhancement follow the allegations of counts two and three. He does not argue that the enhancement allegation cannot be applied to the offense alleged in count one by reason of its placement following counts two and three. The unusual character of the section 11370.4, subdivision (b)(2) enhancement as determined in Estrada, supra, 39 Cal.App.4th 1235, presents an unusual pleading circumstance. Ordinarily, enhancements pertain to particular offenses. Thus, ordinarily, an allegation thereof is contained in and “tied directly to” one particular pertinent count of the information. However, as a section 11370.4, subdivision (b)(2) enhancement may pertain to multiple offenses, when that is the case, the allegation must span more than one count of the pleading.
Penal Code section 654 does not impel the result urged by defendant Gaspar-Hurtado. It bars multiple punishment for the same proscribed act. There is no such multiple punishment here in enhancing the punishment for the transportation offense with the additional term for the large aggregate amount of the substance involved in the entire enterprise. For reasons already given (see fn. 6, ante), the Health and Safety Code section 11370.4, subdivision (b)(2) enhancement was not restricted to counts two and three.
Penal Code section 654, subdivision (a) states as follows: “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.”
Defendant Gaspar-Hurtado points to People v. Smith (1985) 163 Cal.App.3d 908. In that case the defendant was found guilty of robbery and burglary and was found to have been armed during the burglary but not during the robbery. The burglary count was stayed under Penal Code section 654, but the Attorney General argued that the enhancement could nonetheless be applied to the robbery count. We rejected the argument because the arming enhancement did not set forth a separate offense, “but rather constitutes additional punishment for an offense for which a person is convicted and to which it applies.” (Smith, at p. 913, italics added.)
Defendant Gaspar-Hurtado also points to People v. Kramer (2002) 29 Cal.4th 720. However, that case does not address the issue of the effect of staying an offense on an enhancement. “The Court of Appeal held that the court erred in imposing the firearm-use enhancement for the assault charge because the court could not impose an enhancement on a count for which sentence was stayed. It also held that on remand, the court must impose sentence for the charge of discharging a firearm at an occupied vehicle rather than for the assault charge. The correctness of this latter ruling is before us.” (Id. at p. 722.)
Smith does not address an enhancement that applies to multiple counts. As explained, the enhancement here in issue was applicable to all the counts. Smith would not have reached the same result in a case where the defendant was found to have been armed during both the robbery and the burglary.
C. Striking the One-Kilogram Enhancements (Defendant Gaspar-Hurtado)
Defendant Gaspar-Hurtado contends that the trial court erred in failing to strike, rather than merely staying the one-kilogram enhancement allegations on counts one and two. He argues this result is compelled by Estrada, supra, 39 Cal.App.4th at page 1240. The Attorney General concedes the point. We do not accept the concession.
It is true that the Estrada opinion asserts that the enhancement there in issue “must be stricken.” (Estrada, supra, 39 Cal.App.4th at p. 1240.) However, the assertion is unsupported by reasoning about or explanation of whether staying the enhancement would suffice. A case is not authority for a proposition it does not address. (People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7; In re Tartar (1959) 52 Cal.2d 250, 258.)
The purpose of Penal Code section 654 is to prevent multiple punishment. The approved procedure for achieving that purpose is to stay execution pending appeal and service of the overlapping sentence. (See, e.g., In re Wright (1967) 65 Cal.2d 650, 655-656, fn. 4.) A conviction stayed under this procedure cannot be used for any punitive purpose. (E.g., People v. Pearson (1986) 42 Cal.3d 351, 361.) Thus, no purpose of the statute requires striking rather than staying an enhancement.
D. Laboratory Analysis and Drug Program Fees (Defendant Gaspar-Hurtado)
Defendant Gaspar-Hurtado contends that the trial court erred in imposing laboratory analysis (§ 11372.5, subd. (a)) and drug program (§ 11372.7, subd. (a)) fees on the stayed counts (counts two and three). He argues these fees are fines and, as such, punishment that cannot be imposed as to the counts stayed under Penal Code section 654. The Attorney General concedes the point. We accept the concession. Thus, a single laboratory analysis fee of $50 and a single drug program fee of $150 may be imposed only on count one.
E. Main Jail Booking and Classification Fees (Defendant Gaspar-Hurtado)
Defendant Gaspar-Hurtado contends that the trial court erred in imposing jail booking and classification fees (Gov. Code, § 29550.2, subd. (a)) without determining his ability to pay. He acknowledges that this court held a contention challenging such a fee is waived if not raised at the time of sentencing in People v. Hodges (1999) 70 Cal.App.4th 1348, 1357. However, he submits that under People v. Butler (2003) 31 Cal.4th 1119, 1127-1129, because he frames the issue as one of sufficiency of the evidence, he has evaded this bar. The Attorney General replies that Hodges is correct, noting that the Butler opinion expressly excepts from its ambit the rule “that absent timely objection sentencing determinations are not reviewable on appeal.” (Butler, at p. 1128, fn. 5.)
People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 explains there are varieties of sufficiency of the evidence claims, some of which are subject to waiver and others not. It explains why the kind of claim here is subject to waiver. Given the caveat in Butler, we conclude, for the reasons given in Gibson, that Hodges is still good law.
F. Cunningham Error (Defendant Gaspar-Hurtado)
Defendant Gaspar-Hurtado contends that the trial court erred under Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856] in imposing the upper term based on facts neither admitted nor determined by the jury. We agree.
Here, the sole aggravating factor noted by the trial court was that “the crime was carried out with planning, sophistication and professionalism, led by [defendant] Gaspar-Hurtado.” This circumstance does not come within the exceptions to the right to jury trial set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. (See People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).) Accordingly, defendant’s Sixth Amendment rights were violated by the imposition of an upper term sentence. (Sandoval, at p. 835.) We shall remand for resentencing as to defendant Gaspar-Hurtado in accordance with the Sandoval opinion.
DISPOSITION
As to each defendant, the judgment is modified to reduce the laboratory analysis fee (§ 11372.5, subd. (a)) to $50 and the drug program fee (§ 11372.7, subd. (a)) to $150. As modified, the judgments are affirmed, with the exception that the judgment as to defendant Gaspar-Hurtado is remanded for resentencing in accordance with the opinion in Sandoval, supra, 41 Cal.4th 825.
We concur: SIMS , Acting P. J., CANTIL-SAKAUYE , J.
Footnote 4 in Newman states as follows: “Because defendant stipulated to one but not all of the evidentiary facts necessary to his conviction, we need not and do not determine what rule should apply where the stipulation admits every element necessary to sustain conviction of an offense or imposition of punishment on a charged enhancement.” (Newman, supra, 21 Cal.4th at p. 422, fn. 4.)
It might be argued that in such a case the information should be drafted to include a section 11370.4, subdivision (b)(2) enhancement allegation in the statement of every count to which it might pertain, or perhaps as a stand-alone allegation outside of the counts which overtly declares that it is intended to apply across various counts. However, modern criminal pleading doctrine is simplified. (See 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 178, pp. 383-385.) The key is notice. Liberal construction is indulged, so long as there are “any words sufficient to give the accused notice of the offense of which he is accused.” (Pen. Code, § 952.) In this case, defendant Gaspar-Hurtado was plainly notified that the prosecution sought application of the four-kilogram enhancement based on the substance containing methamphetamine taken from both the car and the shed. Assuming that the information should have been drafted in some more perspicuous fashion, we would deem the error nonprejudicial. (See 4 Witkin, supra, §§ 189-191, pp. 396-399.)