Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael A. Cowell, Judge. (Los Angeles County Super. Ct. Nos. VA095559 and VA096413)
Jolene Larimore, 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, Lance E. Winters, Supervising Deputy Attorney General, Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
This consolidated appeal involves two cases against defendant and appellant Guadalupe Medina Parra (defendant). In Los Angeles Superior Court Case Number VA095559 (the Assault Case), a jury convicted defendant of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) (firearm assault) (counts 1 and 2), one count of exhibiting a firearm against a person in a motor vehicle (§ 417.3) (count 3) and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 4). In Los Angeles Superior Court Case Number VA096413 (the Drug Case), a jury convicted defendant of one count of possession for sale of a controlled substance (Health & Saf. Code § 11351).
All statutory references are to the Penal Code unless stated otherwise.
On appeal, defendant contends with respect to the Assault Case that (1) the evidence was insufficient to sustain his convictions for firearm assault on count 2 and exhibiting a firearm against a person in a motor vehicle on count 3; and (2) defendant’s sentence for the firearm-use enhancement under section 12022.5, subdivision (b) violates the constitutional proscription against cruel and unusual punishment and defendant’s right to due process. With respect to the Drug Case, defendant contends that (1) there was insufficient evidence to sustain his conviction; (2) the trial court erred by improperly questioning defendant’s expert witness; and (3) the trial court erred by imposing the sentence for defendant’s prior drug conviction enhancement consecutive to defendant’s sentence in the Assault Case. Only the last of these contentions has merit. We therefore affirm defendant’s convictions, but reverse his sentence in the Drug Case and remand for resentencing in that case only.
BACKGROUND
A. The Assault Case
1. Maxamina Valenzuela
Maxamina Valenzuela cohabited with defendant for eleven years, until 2001. She dated defendant for another two years, until 2003. They have one son together who was fifteen years old at the time of trial. Ms. Valenzuela did not maintain contact with defendant after they stopped dating, and did not see defendant again until sometime in 2005 when their son invited defendant to a party. She did not speak to defendant at the party. Defendant, however, began leaving messages on Ms. Valenzuela’s telephone asking what she was doing and telling her that “he would do something to [her].”
In the early morning hours of May 14, 2006, Ms. Valenzuela was driving to her Huntington Park home with her brother and his girlfriend, Bianca Alvarez. As Ms. Valenzuela approached, she saw defendant sitting in his car outside her home. She was afraid. She drove past and turned down an alley; defendant followed her in his car. Ms. Valenzuela made another turn; defendant continued to follow her. Ms. Valenzuela stopped in front of her house; defendant pulled up next to her car. Defendant gestured toward his wristwatch. Ms. Valenzuela was unable to hear what defendant was saying, so she lowered her window “a little bit” to see what defendant wanted. Defendant then took a gun from his pants or beneath his shirt. Ms. Valenzuela testified that she was sure defendant had a gun. Defendant raised the gun and pointed it toward Ms. Valenzuela’s car. He then pulled something back on top of the gun “as if pulling back a slide on a semi-automatic handgun,” and again pointed it at Ms. Valenzuela’s car. Defendant then lowered the gun. Defendant’s gun looked similar to one shown to Ms. Valenzuela by a police detective. Defendant appeared angry.
When defendant lowered his gun, Ms. Valenzuela drove directly to the police station. Defendant followed her part of the way.
At approximately 8:00 a.m. the morning of July 22, 2006, defendant began pounding on the door to Ms. Valenzuela’s home. She called police, who arrested defendant.
2. Officer David Lopez
Huntington Park Police Officer David Lopez testified that, at approximately 3:00 a.m. on the morning of May 14, 2006, he was called to the station to take a report from Ms. Valenzuela. Ms. Valenzuela was upset and nervous. Officer Lopez escorted Ms. Valenzula home. He checked the area for defendant, but was unable to find him.
3. Sergeant Ronald Davis
Huntington Park Police Sergeant Ronald Davis testified that, on the morning of July 22, 2006, he responded to a call at Ms. Valenzuela’s home. He saw defendant standing at the door of a bungalow apartment. Defendant matched the description of the suspect that Sergeant Davis had received. When defendant saw Sergeant Davis drive up in his marked police car, defendant immediately walked away. Sergeant Davis followed defendant through a breezeway and into an alley. Police found defendant hiding beneath a van. Police took defendant into custody on an outstanding warrant.
4. Officer Jesus Verdielo
Huntington Park Senior Police Officer Jesus Verdielo testified that he responded to a domestic dispute call at Ms. Valenzuela’s home the morning of July 22, 2006. He saw Sergeant Davis at the scene, and saw defendant lying beneath a van in the alley behind Ms. Valenzuela’s home. Ms. Valenzuela showed Officer Verdielo a protective order (presumably a restraining order) with respect to defendant that was no longer valid. Defendant was subsequently arrested on a warrant.
5. Detective Gabriel Alpizar
Huntington Park Police Detective Gabriel Alpizar was assigned to investigate the May 14, 2006 incident reported by Ms. Valenzuela. Ms. Valenzuela informed him that defendant had family residing in Los Angeles and provided him with a telephone number, but Detective Alpizar was unable to locate defendant. Detective Alpizar obtained a warrant for defendant’s arrest.
6. Bianca Alvarez Quintero
Bianca Alvarez Quintero testified that she knew defendant from a graduation party she had attended for Ms. Valenzuela’s son. Ms. Alvarez was with Ms. Valenzuela on May 14, 2006, and was sitting in the front passenger seat of Ms. Valenzuela’s car. Ms. Alvarez saw defendant following Ms. Valenzuela’s car down an alley. When they parked, defendant pulled up beside them. She saw defendant pointing at his watch, then he pulled something from his waistband. She believed it was a dark-colored weapon. At a prior proceeding, Ms. Alvarez testified it was a gun, but that she saw only the handle. She did not see where defendant was pointing the weapon. Ms. Alvarez was afraid of defendant because she had heard some of the messages defendant had left for Ms. Valenzuela, which were “very aggressive.”
7. Alfredo Valenzuela
On May 14, 2006, Alfredo Velenzuela was in the car with his sister, Maxamina Valenzuela, and girlfriend, Bianca Alvarez. He saw defendant parked on the street near his sister’s house. Defendant followed them when they went through the alley and pulled up in front of Maxamina’s house. Defendant stopped right next to them. He saw defendant talking but could not hear him; defendant then pulled a semi-automatic gun from his waistband and pointed the gun through the window at Maxamina. He slid something on top of the gun as if to load it, and pointed it again at his sister. Maxamina accelerated and drove to the police department. Defendant offered no evidence.
8. Procedural History
The jury convicted defendant on all four counts in the information and found true special allegations with respect to counts 1 and 2 that appellant personally used a firearm (§ 12022.5) (the firearm-use enhancement). The parties stipulated that defendant had one prior felony conviction, and defendant waived a jury trial on all prior conviction allegations. The trial court found true the allegations that defendant had one prior serious felony (§ 667, subd. (a)(1)), one prior strike conviction (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)) and two prior prison terms (§ 667.5, subd. (b)). On count 1, the trial court sentenced defendant to the mid-term of three years in state prison, doubled to six years due to defendant’s prior strike, plus consecutive terms of four years for the firearm-use enhancement and five years for the prior serious felony enhancement. On count 2, the trial court sentenced defendant to a consecutive term of one year (one-third the mid term), doubled to two years due to defendant’s prior strike conviction, plus an additional 16 months (one-third the mid term) for the firearm-use enhancement. The sentences as to counts 3 and 4 were stayed pursuant to section 654. The trial court struck the prior prison term enhancements. Defendant thus received a total of 18 years and four months in state prison on the Assault Case. The trial court imposed a $4,000 restitution fine; a $4,000 parole revocation restitution fine, stayed; a $100 laboratory fee; and a $20 court security fee. Defendant was given presentence credit of 233 days, consisting of 203 days of actual custody and 30 days of conduct credit.
B. The Drug Case
1. The Prosecution Case
a. Officer Juan Porras
Huntington Park Police Officer Juan Porras testified that, on July 22, 2006, he was assigned as a uniformed patrol officer. Shortly after 8:00 a.m., he received a domestic disturbance call and responded to Maxamina Valenzuela’s home. Sergeant Davis and Officer Verdielo were already at the scene, looking under a full-sized van in an alley behind the house. Defendant came out from underneath the van; Officer Porras assisted in detaining him and placed him under arrest. At the police station, Officer Porras searched defendant and discovered two sandwich bags tucked between defendant’s waistband and belt. Each sandwich bag contained several bindles, each of which contained a white powdery substance. One baggie contained nine bindles, weighing a total of 6.7 grams. The other baggie contained seven bindles, weighing a total of 8.7 grams. Defendant did not exhibit any symptoms of being under the influence of narcotics and did not possess any drug paraphernalia.
The trial transcript of the Drug Case spells Officer Verdielo’s name “Verdiell.” We retain the spelling reflected in the trial transcript of the Assault Case.
b. Michelle Lapisto
Michelle Lapisto testified that she was a Senior Criminalist assigned to the narcotics section of the Los Angeles Sherriff’s Department crime laboratory. Ms. Lapisto analyzed the baggies taken from defendant and their contents. All of the bindles contained an off-white powder. Ms. Lapisto tested samples from two of the bindles in each baggie. All proved to be cocaine powder. The two bindles tested from the baggie with seven bindles contained 0.386 and 0.530 grams of cocaine, respectively. The two bindles tested from the baggie with nine bindles contained 1.371 grams and 0.939 grams of cocaine, respectively. In total, the sixteen bindles in the two baggies contained approximately 11 grams of powder. Based on the results of her tests, Ms. Lapisto opined that all sixteen bindles contained cocaine powder.
c. Officer Verdielo
Officer Verdielo testified that, on the morning of July 22, 2006, he responded to Ms. Valenzuela’s home. Ms. Valenzuela told police that her former male partner was bothering her. Sergeant Davis had seen someone leaving the area when he arrived; he and Officer Verdielo went into the alley behind the house. There, Officer Verdielo saw defendant lying on his stomach beneath a van. Defendant was detained and Officer Porras transported him to the station. When Officer Verdielo returned to the station, Officer Porras showed Officer Verdielo the two baggies of cocaine recovered from defendant.
Based on his training and experience, Officer Verdielo opined that defendant possessed the bindles of cocaine for sale. Officer Verdielo explained that a typical user will purchase enough cocaine to “get his fix.” Sometimes a user might have an extra baggie as “a spare,” but never as many as defendant possessed. Amounts ranging from approximately 0.3 grams to just over 0.5 grams, as found in one of the baggies, were usable amounts of cocaine.
2. The Defense Case
Dr. Ronald Markman, a psychiatrist, testified for defendant as an expert on narcotics use and treatment. He testified that, because the crime lab had not tested the purity of the cocaine, one could not determine how many “uses” of cocaine were in the bindles recovered from defendant. Assuming average purity and an average user, Dr. Markman estimated that the cocaine recovered from defendant would provide 10 to 12 individual uses. He testified that a cocaine user would usually buy as much as he or she could afford, and that “the more they buy, the cheaper it is.” Accordingly, Dr. Markman testified, the amount of cocaine recovered from defendant arguably could be for individual possession or sale. Dr. Markman admitted on cross-examination that he did not know whether defendant used cocaine or whether defendant was a light, average or heavy user.
3. The Rebuttal Case
Huntington Park Police Detective Rick Curiel testified that he was assigned on loan to the federal Drug Enforcement Agency Major Narcotics Task Force and was the investigating officer on defendant’s Drug Case. Based on a hypothetical similar to the facts of this case, Detective Curiel opined that defendant possessed the cocaine for the purpose of sale. Detective Curiel testified that cocaine addicts typically purchase what they need for that day or, sometimes, two days; they do not purchase multiple individually wrapped doses. Doses of approximately 0.5 grams—such as those found in one of the baggies—are referred to on the street as a “half-dove” and sell for $10 to $12. Doses of approximately one gram—such as those found in the other baggie—are referred to as “doves” and are sold for $20 each. Defendant thus possessed cocaine with a street value of approximately $230, which would be atypical of a street-level user.
4. Procedural History
The jury convicted defendant of possession of a controlled substance for sale. Defendant admitted that he had one prior drug conviction. (Health & Saf. Code § 11370.2, subd. (a).) The trial court struck the allegation that defendant had one prior strike conviction. The trial court sentenced defendant to the mid term of three years on the possession charge, to run concurrently with defendant’s sentence in the Assault Case. The trial court imposed an additional term of three years for defendant’s prior drug-conviction enhancement, and ordered that term to run consecutively to defendant’s sentence in the Assault Case. Defendant’s total prison sentence for both cases was thus 21 years and four months.
DISCUSSION
A. The Assault Case
1. Sufficient Evidence Supports Defendant’s Conviction for Firearm Assault on Count 2
Count 1 in the Assault Case charged defendant with firearm assault against Maxamina Valenzuela. Count 2 charged defendant with firearm assault against Bianca Alvarez. Defendant challenges the sufficiency of the evidence as to count 2.
“In reviewing a criminal conviction challenged as lacking evidentiary support, ‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Hillhouse (2002) 27 Cal.4th 469, 496, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) We “presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.” (Id. at pp. 1053-1054.)
Section 245, subdivision (a)(2) provides in relevant part, “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison . . . .” Assault is defined in section 240 as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” “An assault occurs whenever ‘“[t]he next movement would, at least to all appearance, complete the battery.”’ [Citation.]” (People v. Williams (2001) 26 Cal.4th 779, 786, italics omitted.) Furthermore, “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams, supra, 26 Cal.4th at p. 790.) Accordingly, an assault occurs when a perpetrator menaces his victim with a firearm, even if he does not point the firearm directly at the victim. (See, e.g., People v. McMakin (1857) 8 Cal. 547, 548-549; People v. Raviart (2001) 93 Cal.App.4th 258, 263-264 [citing cases].) Moreover, pointing a firearm toward a group of people may perpetrate an assault against each member of the group, even if the perpetrator subjectively intended to target only a single victim. (People v. Bland (2002) 28 Cal.4th 313, 329; People v. Riva (2003) 112 Cal.App.4th 981, 999; see also People v. Raviart, supra, 93 Cal.App.4th at pp. 266-267.)
Defendant concedes that defendant “knew he was pointing the gun at Maxamina” and that he “intended to scare her.” His argument is premised on the assertion that “there is no evidence that [defendant] knew that [Ms. Alvarez] was in the car.” We disagree. There was substantial evidence from which a reasonable jury could infer that defendant knew Ms. Alvarez was in his line of fire when he pointed his gun toward Ms. Valenzuela.
Ms. Alvarez testified that she was sitting in the front passenger seat of the car, next to Ms. Valenzuela. Ms. Alvarez and Alfredo Valenzuela both testified that defendant pulled up “right next” to Ms. Valenzuela’s car; Ms. Valenzuela estimated that defendant was less than five feet from her when he aimed the gun toward her. Although it was night, Ms. Alvarez was able to see defendant clearly enough to identify him, to see that he was gesturing at his wristwatch, and to see him pull a dark-colored weapon from his waistband. There is no evidence that defendant could not see Ms. Alvarez equally well. A reasonable jury could thus infer that defendant could and did see that someone was sitting in the passenger seat of the car next to Ms. Valenzuela. Substantial evidence supports defendant’s conviction on count 2.
2. Sufficient Evidence Supports Defendant’s Conviction on Count 3 for Exhibiting a Firearm Against an Occupant of a Motor Vehicle
Defendant was charged in count 3 with exhibiting a firearm against a person in a motor vehicle in violation of section 417.3. Section 417.3 provides in relevant part, “Every person who, except in self-defense, in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm, whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a felony . . . .” (Italics added.) Defendant argues that the evidence is insufficient to prove that Ms. Valenzuela’s car was “proceeding on a public street or highway” because Ms. Valenzuela was stopped by the side of the road when defendant exhibited his firearm.
Defendant relies on People v. Howard (2002) 100 Cal.App.4th 94 (Howard). In that case, a motorist was driving with a passenger when his car stalled and came to a rest on the center median of a street. The defendant and several companions approached the motorist and asked in a threatening manner what he was doing in their neighborhood. The defendant stood near the driver’s side door and pointed a handgun at the car and in the general direction of the motorist. The defendant was subsequently convicted of violating section 417.3. (Id. at p. 96.) The Court of Appeal reversed, holding that “the Legislature did not intend the phrase ‘motor vehicle proceeding on a public street or highway’ to cover a stalled and inoperative motor vehicle merely because it is in the vicinity of a street or highway.” (Howard, supra, 100 Cal.App.4th at p. 97.) The court reasoned that the statute was unambiguous. The word “‘proceeding’” in this context means “‘in movement’”; accordingly, the phrase “proceeding on a public street or highway” means “moving on a street or highway with its engine running and propelling the vehicle.” (Ibid.) This interpretation, the court reasoned, is consistent with the purpose of section 417.3 “to deter and punish ‘threats to persons inside vehicles, which threats may well result in erratic driving endangering the safety of the innocent driving and pedestrian public.’” (Id. at p. 99.) Because the motorist’s vehicle was “inoperable” and “could not be driven, erratically or otherwise,” it was not “proceeding.” (Ibid.)
Howard, supra, 100 Cal.App.4th 94, is distinguishable. Unlike Howard, there was evidence in this case that, contrary to defendant’s assumption, defendant continued to exhibit his firearm against the occupants of Ms. Valenzuela’s car after Ms. Valenzuela put her car into motion to drive to the police station—that is, while the car was “proceeding on a public street or highway.” Ms. Valenzuela testified that, after defendant pointed the gun toward her and operated the slide, she “immediately started the car, and . . . went directly to the police station.” Alfredo Valenzuela testified in response to several questions that Ms. Valenzuela put the car in motion while defendant was still exhibiting the gun. Defense counsel elicited the clearest testimony on this point on re-cross examination:
“Q . . . You insist that he [defendant] pointed the gun at your sister [Ms. Valenzuela] twice?
“A Yes.
“Q Okay. When did your sister drive away, at what point?
“A At the time that he pointed the second time.
“Q Did you ever see him put the gun down?
“A Well, I remained watching him when my sister pulled out.
“Q Okay. And then?
“A That’s when he lower it but by then we had already left.
“[¶] . . . [¶]
“Q . . . Now, when you saw the defendant put the gun down, was that before or after your sister started the car moving?
“A Moments after.
“Q Moments after your sister started moving the car?
“A Yes.”
Alfredo Valenzuela thus testified that defendant was pointing his gun at Ms. Valenzuela when she put the car into motion and “proceed[ed]” to the police station. Substantial evidence supported defendant’s conviction on count 3.
3. Imposition of the Firearm-Use Enhancements Did Not Violate Defendant’s Constitutional Rights
Defendant argues that his sentences on counts 1 and 2 violate the constitutional proscription against cruel and unusual punishment (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17) and his right to due process (U.S. Const., 5th and 14th Amends.; Cal. Const., art. I, § 7). Defendant contends that the use of a firearm is an essential element of firearm assault, so that adding the firearm-use enhancement to his sentence for firearm assault “doubly punishes” his use of a firearm.
Defendant does not argue that imposition of the firearm-use enhancements violated double jeopardy or section 654. (See People v. Scott (2001) 91 Cal.App.4th 1197, 1212.)
Defendant did not raise this issue below. He therefore forfeited any claim of error. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) “Nevertheless, in order to ‘forestall a subsequent claim of ineffectiveness of counsel’ [citation], we will consider the issue.” (Ibid.; People v. Norman (2003) 109 Cal.App.4th 221, 230; see People v. Demirdjian (2006) 144 Cal.App.4th 10, 14.)
Section 12022.5, subdivision (a) provides in relevant part, “[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” Subdivision (d) limits the final clause of subdivision (a), stating, “Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used . . . .” Section 12022.5, subdivision (d) thus mandates imposition of the firearm-use enhancement if a defendant personally uses a firearm in the course of committing firearm assault. (People v. Ledesma (1997) 16 Cal.4th 90, 92-93; People v. Scott, supra, 91 Cal.App.4th at p. 1212.)
Contrary to defendant’s assertion, the firearm-use enhancement is not a double punishment, but an additional punishment. “The plain language of section 12022.5 makes it part of the underlying substantive offense. ‘In the case of the firearm-use enhancement, . . . it is clear that the Legislature intended to impose additional punishment even though the firearm use is an element of the underlying offense of assault as defined by section 245.’ [Citation.]” (People v. Scott, supra, 91 Cal.App.4th at p. 1212, quoting In re Tameka C. (2000) 22 Cal.4th 190, 199, fn. 5.) In effect, section 12022.5, subdivision (d) increases the punishment prescribed by statute for a firearm assault committed by a defendant who personally uses a firearm. As the California Supreme Court explained in People v. Ledesma, supra, 16 Cal.4th 90, “crimes committed with firearms [a]re perceived as more serious than other offenses.” (Id. at p. 100.) Yet the penalty prescribed for felony firearm assault in section 245, subdivision (a)(2) is the same as the penalty set forth in section 245, subdivision (a)(1) for assaults with a deadly weapon in which the weapon is not a firearm. As a result, “[o]nly mandatory imposition of the firearm use enhancement could ensure a sentence proportionately more severe” for perpetrators who personally use a firearm. (Ibid.; see also People v. Hill (1989) 207 Cal.App.3d 1574, 1578-1579 [section 12022.5, subdivision (d) was enacted to address the Legislature’s concern that the 1982 amendment to section 245 defining firearm assault as a separate category of assault “might interfere with the preexisting practice of allowing firearm use enhancements to be imposed for any section 245 violation in which the defendant personally used a firearm”].) The Legislature might have set forth a more severe penalty for using a firearm during an assault by amending section 245, subdivision (a)(2) to impose longer prison terms. It did not. Instead, the Legislature chose to impose a more severe penalty by applying the firearm-use enhancement. That the Legislature chose to impose an enhancement rather than increase the base prison terms for the offense does not implicate defendant’s constitutional rights.
Implicit in defendant’s argument is the assumption that only a defendant who personally uses a firearm, and is therefore subject to the firearm-use enhancement, may be convicted of firearm assault. This is not necessarily correct. For example, a defendant convicted of firearm assault on an accomplice theory, but who did not personally use a firearm during the assault, would not be subject to the firearm-use enhancement. (See People v. Cole (1982) 31 Cal.3d 568, 574-576; People v. Walker (1976) 18 Cal.3d 232, 241-243.)
Defendant’s argument that his right to due process was violated because “[p]unishment for assault with a firearm is sufficient to remedy the evil the Legislature intended to prevent” and therefore “[a]n additional penalty for use of the firearm is not necessary” is thus without merit.
Defendant nonetheless argues that his sentence is disproportionate to his crime. A sentence violates the ban on cruel and unusual punishment when “‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 478.) “‘Only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances, do the courts denounce it as unusual.’ [Citation.]” (People v. Lewis (1993) 21 Cal.App.4th 243, 251.) “An examination of the nature of the offense and of the offender, ‘“with particular regard to the degree of danger both present to society”’ is particularly relevant in determining this issue.” (People v. Felix (2003) 108 Cal.App.4th 994, 1000.) “Because choosing the appropriate penalty is a legislative weighing function involving the seriousness of the crime and policy factors, the courts should not intervene unless the prescribed punishment is out of proportion to the crime. [Citation.]” (Id. at pp. 999-1000.)
Defendant’s longest combined sentence for firearm assault and the firearm-use enhancement is seven years, imposed on count 1. Defendant concedes that this sentence “would not shock the conscience,” and he cites no authority holding that a sentence of seven years constitutes cruel and unusual punishment. We do not believe defendant’s sentence is out of proportion to his crime, particularly as the sentence was imposed for a violent felony on an adult offender with a prior felony record. (See Harmelin v. Michigan (1991) 501 U.S. 957, 994-995 [life without possibility of parole not disproportionate to crime of possession of 1.5 pounds of cocaine]; People v. Felix, supra, 108 Cal.App.4th at pp. 1000-1001 [10-year enhancement for personal use of firearm in carjacking pursuant to section 12022.53, subd. (b) not grossly disproportionate when imposed on offender with no prior criminal history].) Defendant’s sentence for the firearm-use enhancement does not violate his constitutional rights.
Defendant does not challenge the enhancements to his sentence resulting from his prior strike and prior serious felony convictions.
B. The Drug Case
1. Sufficient Evidence Supports Defendant’s Conviction for Possession for Sale
Health and Safety Code, section 11351 provides in relevant part, “[E]very person who possesses for sale or purchases for purposes of sale (1) any [specified] controlled substance . . . or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison.” Defendant contends that there was insufficient evidence that defendant possessed the cocaine for sale rather than for defendant’s personal use. As explained above, we will affirm if the record contains substantial evidence to support defendant’s conviction. (People v. Hillhouse, supra, 27 Cal.4th at p. 496.)
The crime of possession for sale requires proof of defendant’s specific intent that the controlled substance will be sold, either by the defendant or someone else. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175; People v. Parra (1999) 70 Cal.App.4th 222, 227; 2 Witkin and Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 82, p. 592.) Intent to sell may be established by circumstantial evidence. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) “It is well settled that ‘. . . experienced [police] officers may give their opinion[s] that the narcotics are held for purposes of sale based upon such matters as quantity, packaging, and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.’ [Citations.]” (People v. Parra, supra, 70 Cal.App.4th at p. 227; see People v. Hunt (1971) 4 Cal.3d 231, 237.)
In this case, both Officer Verdielo and Detective Curiel opined that defendant possessed the cocaine for sale. Officer Verdielo testified that a street-level user would typically purchase sufficient cocaine for a single fix, and might purchase a “spare” if he or she had enough money, but he had never known a street-level user to possess 16 bindles of cocaine as defendant did. Detective Curiel testified that a cocaine addict will typically purchase enough for a day, or perhaps two days; in his experience, they do not purchase approximately $230 worth of cocaine, packaged in multiple individually wrapped doses. Defendant possessed one baggie containing nine bindles, each of which contained approximately 0.5 grams of cocaine; such doses are referred to as “half-doves” and are sold on the street for $10 to $12 each. Defendant possessed another baggie containing seven bindles, each of which contained approximately one gram of cocaine; such doses are referred to as “doves” and are sold on the street for $20 each. Detective Curiel also testified that, because the drugs found on defendant were already individually packaged in salable amounts, there was no need for defendant to carry additional packaging materials or scales on his person. When he was arrested, defendant did not appear to be under the influence of cocaine and he was not in possession of paraphernalia indicative of personal cocaine use. The testimony of Officer Verdielo and Detective Curiel constituted substantial evidence that defendant possessed the cocaine for sale.
Defendant argues that, unlike other cases in which an officer’s expert opinion provided substantial evidence of intent to sell, the officers’ opinions in this case were based solely on the amount of cocaine defendant possessed and the manner in which it was packaged. In other cases, defendant contends, the officers’ opinions were supported by the defendants’ possession of additional indicia of intent to sell, such as scales, additional packaging materials, large amounts of cash or large amounts of narcotics. (See People v. Newman (1971) 5 Cal.3d 48 [methedrine packaged in eight bindles totaling 32 doses], overruled on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862; People v. Peck (1996) 52 Cal.App.4th 351 [40 pounds of marijuana and over $2,300 in cash]; People v. Aguilar (1965) 232 Cal.App.2d 173, 178 [additional packaging materials and uncut narcotics], disapproved on another ground in Lorenzana v. Superior Court (1973) 9 Cal.3d 626.)
Defendant cites no authority that such additional indicia of intent to sell is required. To the contrary, an officer’s expert opinion that a defendant possessed narcotics for sale may be admissible when based solely on the amount of narcotics possessed, without any additional evidence of intent to sell. (People v. Carter (1997) 55 Cal.App.4th 1376, 1377 [27.4 grams of rock cocaine]; see also People v. Parra, supra, 70 Cal.App.4th at p. 227 [substantial evidence provided by officer testimony based on “quantity of the controlled substance seized and lack of drug paraphernalia in [defendants’] car”].) In this case, the officers’ opinions were supported not only by the amount of cocaine, but also the manner in which the cocaine was packaged, the large number of bindles possessed by defendant, and the lack of evidence that defendant was personally using cocaine when arrested. Defendant does not challenge on appeal the competence or admissibility of the officers’ opinion testimony.
Moreover, the jury was instructed on the lesser offense of simple possession, and counsel for defendant argued extensively to the jury that the officers’ opinion testimony should be given little weight for the same reasons defendant asserts on appeal. The jury rejected that argument. We will not reweigh the evidence on appeal. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1545-1546.)
2. The Trial Court Did Not Err By Questioning the Defense Expert
a. Additional Background
Dr. Markman testified that cocaine is a habituating, tolerant-forming substance, so that the more one uses cocaine, the more cocaine one will have to ingest to get the same effect. In addition, the amount of cocaine powder a user will have to ingest will depend upon the concentration of cocaine in the powder. The lab receipts offered by the prosecution did not report the concentration of cocaine in the powder seized from defendant. Assuming the powder contained an “average” concentration of cocaine and that defendant was an “average” cocaine user, Dr. Markman estimated that the cocaine seized from defendant would provide 10 to 12 individual doses. Furthermore, Dr. Markman testified, a cocaine user will try to purchase as much cocaine as they can because “the more they buy, the cheaper it is. So they do it based on how much money they have.” At this point, the following colloquy occurred:
“[DEFENSE COUNSEL]: So based on the reading of the reports, based on the quantity found, what would your opinion be as far as the possession of this cocaine?”
“THE COURT: Sir, are you in a position to make that—sounds like a little bit of guesswork to me—
“[DR. MARKMAN]: Well, it’s, it’s—
“THE COURT: —in that last question. You tell us.
“[DR. MARKMAN]: It’s not a question of guesswork more than to say that it is the amount of cocaine that is potentially here, arguably, could be for individual possession or arguably could be for sale.”
“THE COURT: Well, that’s what I am getting at. [¶] You can’t tell, one way or another?
“[DR. MARKMAN]: That’s correct.
“THE COURT: So quantity, quantity, does it matter?
“[DR. MARKMAN]: No. It would be—as I said, there was a crucial number missing here and that’s the concentration or the purity of the cocaine. [¶] If this is very weak cocaine, then it, it would be difficult to sell this or to consider it for sale.
“THE COURT: Well, then you can’t tell us, one way or another, whether it was for use or for sale. You can’t tell?
“[DR. MARKMAN]: I don’t think anyone could.
“THE COURT: Well, at least you can’t. That’s all we are dealing with at the moment.
“[DEFENSE COUNSEL]: But it’s fair to say that the amount that was in his possession was basically two to three days worth on the average, assuming an average quality of the cocaine and average user; correct?
“[DR. MARKMAN]: Yes.
“[DEFENSE COUNSEL]: I have nothing further.”
b. Discussion
Defendant contends that the trial court’s questioning of Dr. Markman violated defendant’s rights to a fair trial and due process. Defendant argues that the trial court improperly “attack[ed] the credibility of Dr. Markman” and thereby “communicated to the jury that the People’s case was strong, while the defense case was questionable and weak.” We disagree.
Defendant failed to object at trial or seek an admonition to cure any prejudice that might have been caused by the trial court’s examination of Dr. Markman. Defendant thus forfeited any claim of error. (People v. Harris (2005) 37 Cal.4th 310, 350; People v. Corrigan (1957) 48 Cal.2d 551, 556.)
In any event, defendant’s argument fails on the merits. “Evidence Code section 775 ‘“‘confers upon the trial judge the power, discretion and affirmative duty . . . [to] participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.’” [Citation.] [¶] The constraints on the trial judge’s questioning of witnesses in the presence of a jury are akin to the limitations on the court’s role as commentator. The trial judge’s interrogation “must be . . . temperate, nonargumentative, and scrupulously fair. The trial court may not . . . withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power.” [Citation.]’ [Citation.]” (People v. Harris, supra, 37 Cal.4th at p. 350.)
In this case, the trial court acted within its discretion in clarifying the scope of and foundation for Dr. Markman’s opinion. When Dr. Markman’s examination commenced, defense counsel asked Dr. Markman “to render an opinion whether or not the possession of the drugs were for sale or for personal use.” Dr. Markman did not answer that question because Dr. Markman had not testified to a proper foundation. After Dr. Markman testified to the foundational facts described above, defense counsel again asked Dr. Markman “what would your opinion be as far as the possession of this cocaine”—that is, whether defendant possessed the cocaine for sale or for personal use. Dr. Markman, however, still had not testified to a factual basis permitting him to render an opinion that this defendant possessed this cocaine for personal use—at most, Dr. Markman properly could opine that an average cocaine user possessing a similar quantity of cocaine powder with an average concentration might have possessed the cocaine for personal use. Dr. Markman made no attempt to establish either that defendant was an “average” user or that the cocaine seized from his person had an “average” concentration. Accordingly, when defense counsel asked Dr. Markman to state his opinion “as far as [defendant’s] possession of this cocaine,” the trial court properly intervened to clarify Dr. Markman’s opinion and to ensure that Dr. Markman did not mislead the jury by stating an opinion that was not supported by the evidence. We see nothing in the colloquy between Dr. Markman and the trial court that impugned Dr. Markman’s credibility or was otherwise improper
3. The Trial Court Erred By Imposing Sentence for the Prior Drug-Conviction Enhancement Consecutive to Defendant’s Sentence in the Assault Case
The trial court ordered defendant to serve his sentence for possession of a controlled substance for sale concurrently with defendant’s sentence in the Assault Case. The trial court, however, imposed the three year term for defendant’s prior drug-conviction enhancement (Health & Saf. Code, § 11370.2, subd. (a) (section 11370.2)) consecutive to defendant’s sentence in the Assault Case. Defendant’s sentence was, in this respect, unauthorized.
Section 11370.2, subdivision (a) mandates that a defendant convicted of specified drug crimes, including possession for sale, “shall receive, in addition to any other punishment authorized by law, . . . a full, separate, and consecutive three-year term for each prior felony conviction of . . . Section 11351 . . . .” Defendant in this case was convicted of possession for sale, and he admitted one prior felony drug conviction. His sentence for that conviction should have been the three year mid term imposed by the trial court, plus a full and consecutive three year term for the prior drug-conviction enhancement, for a total prison term of six years. Pursuant to section 669, the trial court was required to determine whether to impose that six year term concurrent with or consecutive to defendant’s sentence in the Assault Case. (The trial court had imposed the three-year sentence for possession for sale concurrently with the sentence for defendant’s convictions in the Assault Case.) Nothing in section 669 or section 11370.2, subdivision (a) permits a trial court to dissociate a prior drug-conviction enhancement from the defendant’s sentence on the underlying drug conviction and to use it, in effect, to enhance a sentence imposed on the defendant for a different non-drug crime in a different case. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.) Accordingly, we reverse defendant’s sentence in the Drug Case and remand the matter for resentencing on that case only.
DISPOSITION
The judgments of conviction are affirmed. Defendant’s sentence in Case Number VA096413 is reversed, and the matter is remanded to the trial court for resentencing in that case only.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.