Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2006019607 of Ventura Charles R. McGrath, Judge
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, A.P.J.
Eloisa Ramirez Pacheco appeals from the judgment entered after her conviction by a jury of selling cocaine as alleged in count 1 (Health & Saf. Code, § 11352, subd. (a)) and conspiracy to sell heroin as alleged in count 3. (Pen. Code, § 182, subd. (a)(1).) The jury acquitted her of selling cocaine as alleged in count 2. The jury found true an allegation that appellant had possessed for sale 14.25 grams or more of heroin. (§ 11352.5, subd. (1); Pen. Code, § 1203.07, subd. (a)(1).) The trial court found true allegations that, in 1991, she had suffered three prior drug-related felony convictions within the meaning of section 11370.2, subdivision (a).
All statutory references are to the Health and Safety Code unless otherwise stated.
On count 1, the trial court sentenced appellant to the middle term of four years. On count 3, she was sentenced to the middle term of four years, to be served concurrently with the sentence on count 1. (CT 206) For the three prior convictions, the trial court sentenced appellant to three years consecutive on count 1 and three years concurrent on count 3. Accordingly, appellant's aggregate prison term is seven years.
Appellant contends: (1) as to count 1, the trial court erroneously failed to instruct sua sponte on aiding and abetting; (2) the evidence is insufficient to support the guilty verdict on count 3 and the true finding on the allegation that she possessed for sale 14.25 grams or more of heroin; (3) the trial court abused its discretion by refusing to strike her prior convictions; and (4) the trial court erroneously imposed fees and penalty assessments.
Respondent concedes that the trial court erroneously imposed fees and penalty assessments. Respondent contends that the trial court's sentence is also unauthorized to the extent that it imposed only one consecutive three-year term for all three prior convictions. We agree with respondent that, in the absence of an order striking the priors pursuant to Penal Code section 1385, the trial court was required to impose a consecutive three-year term for each prior conviction. We reverse the sentence and remand the matter to the trial court for resentencing. In all other respects, we affirm.
After briefing was completed appellant, through counsel, filed a "Notice of Abandonment of Appeal." Abandonment is inappropriate where, as here, we have determined that an unauthorized sentence is at hand. Appellant has no right to abandon an appeal in these circumstances. A request to abandon is addressed to the sound discretion of the reviewing court. (Cal. Rules of Court, rule 8.244, subd. (c).) The request to abandon the appeal is denied.
Facts
Lina Araujo was a police informant. On April 29, 2005, the police asked Araujo to dial telephone number 483-9285 and arrange to purchase drugs from the person who answered the telephone. The telephone number was for a residence located at 4400 South J Street in the City of Oxnard (hereafter the residence). The police had received information "that there was drug dealing going on from the residence, via a delivery service."
Araujo testified that appellant had been living at the residence. Araujo had known appellant for nine or ten years. Over a period of "years," Araujo had purchased drugs "[a] lot" of times from appellant.
Araujo dialed the telephone number and spoke to appellant's daughter. Araujo asked for rock cocaine and powder cocaine. The daughter said that she would meet Araujo in the parking lot of the Centerpoint Mall in Oxnard.
Later that same day, appellant drove a vehicle from the residence to the Centerpoint Mall and picked up Araujo. A man occupied the passenger seat next to appellant. Inside the vehicle, Araujo purchased cocaine from appellant. This transaction was the basis for count 1 of the information.
On May 13, 2005, Araujo dialed the same telephone number that she had dialed on April 29, 2005. Araujo testified that she thought she had spoken to appellant's daughter. However, immediately after the telephone conversation, she told a police officer that she had spoken to appellant.
During the telephone conversation on May 13, Araujo arranged to purchase cocaine at the Centerpoint Mall. A few minutes later, Araujo and Jorge Guzman, another police informant, met appellant's son and niece at the Centerpoint Mall. Guzman purchased cocaine from the niece. This transaction was the basis for count 2, of which appellant was acquitted.
Guzman made additional controlled buys on June 15, 16, and 24, 2005. On each occasion, the person selling drugs was either Maria Ramirez Pacheco (hereafter Maria), or Juan Ramirez. Appellant acknowledges that Maria is her daughter and Ramirez is her son. Maria and Ramirez lived at the residence.
On June 15, Guzman purchased cocaine and heroin from Maria. After the purchase, Guzman asked Maria if she had a form of heroin referred to as "black." Maria responded, "[C]all my mom." Guzman telephoned a woman, who told him how much it would cost to purchase the heroin he wanted.
On June 16, Guzman purchased black tar heroin from Maria. Maria drove from the residence to make the sale.
On June 24, Guzman telephoned Maria and arranged to purchase heroin. (2RT 308) The sale, however, was made by Juan Ramirez.
On July 28, 2005, the police searched the residence pursuant to a search warrant. Maria and Juan Ramirez were present during the search, but appellant was absent. The police found approximately 128 grams of cocaine. A stuffed animal was found "on some boxes at the foot of the bed in the southeast bedroom." The stuffed animal contained about 54 grams of heroin. In the southeast bedroom, the police also found mail in appellant's name with the address of 147 North Roosevelt Avenue. In addition, they found pay and owe sheets for drug transactions. In the northeast bedroom, the police found Western Union receipts in appellant's name with the Roosevelt Avenue address and the telephone number 483-9285: the same number that Araujo had dialed to arrange the cocaine sales.
Aiding and Abetting Instruction
Appellant contends that, as to the sale of cocaine on April 29, 2005, the trial court erred by failing to instruct sua sponte on aiding and abetting. She argues that this instruction was required because "[t]he evidence was insufficient to show appellant (as opposed to her male passenger) specifically controlled or handed over any drugs to Ms. Araujo on April 29, 2005. Nor was the evidence sufficient to show that appellant specifically received any money from Ms. Araujo that day."
We disagree. Araujo testified that she had bought drugs from appellant and that appellant "had delivered the drugs." Based on this testimony, appellant was a perpetrator, not an aider and abettor, so that an instruction on aiding and abetting would have been misleading. "[O]ne who engages in conduct that is an element of the charged crime is a perpetrator, not an aider and abettor, of the completed crime. . . . If the defendant performed an element of the offense, the jury need not be instructed on aiding and abetting, even if an accomplice performed other acts that completed the crime." (People v. Cook (1998) 61 Cal.App.4th 1364, 1371.)
Sufficiency of the Evidence
Appellant contends that the evidence is insufficient to support the guilty verdict on the charge of conspiracy to sell heroin and the true finding on the allegation that she possessed for sale 14.25 grams or more of heroin.
"[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction] .' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[A]ll conflicts in the evidence must be resolved in favor of the judgment and all reasonable inferences must be drawn in its favor. [Citations.]" (People v. Kelso (1976) 64 Cal.App.3d 538, 542.)
A. Conspiracy
"The necessary elements of a criminal conspiracy are: (1) an agreement between two or more persons; (2) with the specific intent to agree to commit a public offense; (3) with the further specific intent to commit that offense; and (4) an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement or conspiracy. [Citations.]" (People v. Liu (1996) 46 Cal.App.4th 1119, 1128.)
Appellant maintains that "there was no sufficient evidence proving that [she] was a participant in this conspiracy, i.e., that she entered into any agreement with anyone to sell heroin . . . ." But there is ample evidence from which a reasonable trier of fact could infer the existence of such an agreement between appellant and members of her family. As to the April 29, 2005, transaction, appellant's daughter answered the telephone and negotiated the sale of cocaine, but appellant was the one who made the actual delivery. As to the May 13, 2005, transaction, Araujo told a police officer that she had negotiated the sale with appellant over the telephone, but the delivery on that date was made by appellant's son and niece. On June 15, 2005, after Guzman had purchased cocaine and heroin from Maria, she told him to call appellant in response to his request for black tar heroin. The following day, Maria drove from the residence to make the sale of black tar heroin to Guzman.
Viewed in the light most favorable to the judgment, this evidence was sufficient to show that appellant and family members had "positively or tacitly come to a mutual understanding to accomplish the act and unlawful design" of selling drugs, including heroin. (People v. Calhoun (1958) 50 Cal.2d 137, 144.) No greater showing was necessary. (Ibid.) "It need not be shown that the parties met and actually agreed to jointly undertake criminal action. [Citation.] The agreement may be inferred from the conduct of the defendants in mutually carrying out a common purpose in violation of a penal statute. [Citation.]" (People v. Cockrell (1966) 63 Cal.2d 659, 667.)
B. Possession for Sale of 14.25 Grams or More of Heroin
Possession may be either actual or constructive. "Actual possession requires direct physical control, whereas constructive possession can exist when a person without immediate physical control has the right to control the property, either directly or through another person. [Citation.]" (People v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112.)
A reasonable trier of fact could infer that appellant was in constructive possession of the approximately 54 grams of heroin found inside the stuffed animal at the residence. Araujo testified that appellant lived at the residence. (1RT 109) Araujo's testimony was corroborated by documentation in appellant's name found at the residence. It was also corroborated by the following facts: (1) on April 29, 2005, appellant drove from the residence to the Centerpoint Mall to make the sale of cocaine to Araujo; (2) Araujo told the police that, on May 13, 2005, she had dialed the number for the residence and that appellant had answered the telephone; and (3) in the northeast bedroom of the residence, the police found a Western Union receipt in appellant's name with the telephone number for the residence. Moreover, the stuffed animal was found in the southeast bedroom, which also contained mail in appellant's name. The presence of this mail showed that appellant had access to the southeast bedroom.
In addition, appellant's right to control the heroin is reasonably inferable from Maria's statement to Guzman on June 15, 2005. Guzman asked Maria if she had a form of heroin referred to as "black." Maria responded, "[C]all my mom." (RT 295)
In any event, even if appellant did not have constructive possession of the 54 grams of heroin, one of her co-conspirators surely did. In these circumstances, appellant would be deemed to have possessed the heroin "by means of the established rule of law, that the acts of one co-conspirator are chargeable against all. [Citations.]" (People v. Means (1960) 179 Cal.App.2d 72, 82.)
Refusal to Strike Prior Convictions
Appellant contends that the trial court abused its discretion by refusing to strike the prior 1991 convictions. She argues that these convictions are "remote in time" because " 'for about 15 years [she] has been free of any type of involvement with drugs or anything else.' "
The trial court did not abuse its discretion. Appellant's prior 1991 convictions are not remote in time because since 1991 she has not led a " 'legally blameless life' " (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Araujo testified that she had known appellant for nine or ten years and that, over a period of "years," she had purchased drugs "[a] lot" of times from appellant. Based on Araujo's testimony, appellant has a long history of drug dealing.
Moreover, appellant's prospects of rehabilitation are bleak because she has refused to recognize her involvement in drug dealing. When interviewed by the probation officer following her conviction, she said that the "entire case against her is a 'lie, a make believe story' " and that the prosecutor had " 'made up a good story' to convict her."
Fees and Penalty Assessments
Pursuant to section 11372.5, the trial court imposed a criminal laboratory analysis fee of $165 plus penalty assessments of $165 for the offense of selling cocaine (count 1). Respondent concedes that the laboratory fee for this offense is $50.00. We accept the concession. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1519; see also People v. Vega (2005) 130 Cal.App.4th 183, 193-195.) Based on the $50 laboratory fee, the state penalty assessment is $50 (Pen.Code, § 1464, subd. (a)), and the county penalty assessment is $35 (Gov.Code, § 76000, subd. (a)). (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, fn. 2.) Thus, the laboratory fee plus penalty assessments total $135.
Pursuant to section 11372.7, the trial court imposed a drug program fee of $495 plus penalty assessments of $495 for the offense of selling cocaine (count 1). As respondent concedes, the maximum drug program fee for this offense is $150. (§ 11372.7, subd. (a).) Based on a $150 drug program fee, the state penalty assessment is $150 (Pen.Code, § 1464, subd. (a)), and the county penalty assessment is $105 (Gov.Code, § 76000, subd. (a)). Thus the drug program fee plus penalty assessments total $405.
The trial court failed to impose a court security fee. Such a fee in the amount of $20 must "be imposed on every conviction for a criminal offense." (Pen. Code, § 1465.8, subd. (a)(1).) Respondent argues that, since appellant suffered two convictions, the total fee is $40. We agree. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)
The abstract of judgment must be modified to separately show the correct amount of each fee and each penalty assessment. (See People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)
Imposition of Enhancements
The trial court found true allegations of three prior convictions within the meaning of section 11370.2, subdivision (a). The statute required the trial court to impose "a full, separate, and consecutive three-year term for each" of the prior convictions. (Ibid.) Instead, without striking any of the prior convictions, the trial court imposed one consecutive three-year term on count 1 and one concurrent three-year term on count 3.
This sentence was unauthorized for two reasons. First, because prior conviction enhancements are attributable to the defendant's status as a repeat offender rather than the nature of the underlying offense, such enhancements are not imposed on particular counts. "[E]nhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence." (People v. Tassell (1984) 36 Cal.3d 77, 90, fn. omitted, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 401; see also People v. Gokey (1998) 62 Cal.App.4th 932, 936 [section 11370.2 "impose[s] additional punishment for the status of the offender, and not the acts or omissions underlying the current offense"].)
Second, when prior convictions are found true pursuant to section 11370.2, subdivision (a), "the trial court shall either impose the enhancements or strike them in accordance with the dictates of Penal Code section 1385." (People v. McCray (2006)144 Cal.App.4th 258, 267.) Since the trial court did not strike the prior convictions, it was required to impose three consecutive three-year terms for the three priors. The imposition of only one consecutive three-year term was in excess of its jurisdiction. (Ibid.)
The trial court may have been misled because of erroneous allegations in the probation report. The probation report states that the trial court found true one prior conviction on count 1 and one prior conviction on count 3. In fact, the trial court found true three prior convictions, none of which attached to a particular count. At the time of sentencing, the probation report may have misled both appellant's counsel and the trial court into believing that only one prior conviction was involved. Counsel's oral motion to strike referred to only one prior conviction and one three-year enhancement: "I would ask that the Court strike the three-year prior. The probation officer correctly indicated that [appellant] has a 1991 conviction for the distribution of other drugs. Because that is so old I would ask the court to strike it or withhold imposition of that three years." When the trial court sentenced appellant on count 1, it ordered her "to serve the midterm, which is four years, plus three years for the prior conviction."
"It is well established that the prosecution may raise for the first time on appeal . . . the question of whether a sentence was unauthorized by law. [Citations.] The [California] Supreme Court has held that when a trial court pronounces an unauthorized sentence that such a judgment 'is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.' [Citations.] [¶] Even where the prosecution has not appealed, appellate courts have ordered correction of sentences under varying circumstances." (People v. Irvin (1991) 230 Cal.App.3d 180, 190.)
Accordingly, we must reverse the sentence and remand the matter to the trial court for resentencing with directions to impose a consecutive three-year prison term for each prior conviction not stricken pursuant to Penal Code section 1385. (See People v. McCray, supra, 144 Cal.App.4th at p. 267-268; People v. Irvin, supra, 230 Cal.App.3d at pp. 192-193.) We express no opinion on whether the trial court should, acting within its discretion, strike one or more prior convictions on resentencing. We do not consider this issue because it is not before us. If the trial court strikes a prior conviction, it must carefully set forth its reasons "in an order entered upon the minutes." (Pen. Code, § 1385, subd. (a).)
Disposition
The sentence is reversed, and the matter is remanded for resentencing consistent with the views expressed in this opinion. The trial court is directed to impose a consecutive three-year prison term for each prior conviction not struck pursuant to Penal Code section 1385. Pursuant to section 11372.5, a criminal laboratory analysis fee of $50 shall be imposed for the offense of selling cocaine (count 1), plus a state penalty assessment of $50 (Pen.Code, § 1464, subd. (a)), and a county penalty assessment of $35 (Gov.Code, § 76000, subd. (a)). Pursuant to section 11372.7, subdivision (a), a drug program fee of $150 shall be imposed for the offense of selling cocaine (count 1), plus a state penalty assessment of $150, and a county penalty assessment of $105. Pursuant to Penal Code section 1465.8, subdivision (a)(1), a court security fee of $20 shall be imposed for each of appellant's two convictions. Thus, the total court security fee shall be $40.
After resentencing, the clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The amended abstract must separately show the amount of each fee and each penalty assessment. The request to abandon the appeal is denied.
In all other respects, the judgment is affirmed.
We concur: COFFEE,.J., PERREN, J.