Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVA700877 Dwight W. Moore, Judge.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton, Melissa Mandel, and Marrissa Bejarano Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) (count 1) and possession for sale of a controlled substance (Health & Saf. Code, § 11378) (count 2). The trial court thereafter found true that defendant had previously been convicted of two drug-related offenses within the meaning of Health and Safety Code section 11370.2, subdivision (c). Defendant was sentenced to a total term of six years in state prison. On appeal, defendant contends (1) the new jury instructions, Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 223 and 302, violate the due process clause of the Fourteenth Amendment by shifting the burden of proof to the defendant; (2) the trial court erred in sentencing her to six years in state prison; and (3) the matter must be remanded for the court to pronounce judgment on count 2. Because the trial court failed to impose sentence on count 2, the matter must be remanded for resentencing. We reject defendant’s remaining contentions.
I
FACTUAL BACKGROUND
On April 15, 2007, Fontana Police Officer Keith Zagorin was on patrol in a marked police vehicle when he conducted a traffic stop on a car driven by defendant because the car’s brake lights were out. During the course of the traffic stop, the officer discovered defendant did not have a valid driver’s license and asked defendant to step out of the car. The officer then began questioning defendant and eventually asked if he could search her. Defendant consented to be searched. The officer found a glass methamphetamine pipe in defendant’s jacket pocket, a plastic bindle with methamphetamine in it in her front pants pocket, and three more bindles of methamphetamine in her left front pants pocket. The total weight including the packaging of the methamphetamine was 5.2 grams.
Officer Zagorin opined defendant possessed the methamphetamine with the intent to sell, based on the amount of substance, the packaging, defendant’s statement that she intended to sell the methamphetamine, defendant’s lack of employment, and defendant’s distance from her home address. The officer explained that sometimes sellers of drugs will use the drugs they are selling and that defendant did not display symptoms of a person under the influence of drugs. A laboratory test later revealed that two of the four packages of methamphetamine tested weighed 3.03 grams, excluding the packaging.
II
DISCUSSION
A. CALCRIM Nos. 223 and 302
Defendant contends the new jury instructions, specifically CALCRIM Nos. 223 (direct and circumstantial evidence) and 302 (evaluating conflicting evidence), violate her federal constitutional right to due process by shifting the burden of proof to defendant. We review defendant’s constitutional challenges pursuant to Penal Code sections 1259 and 1469. Defendant’s arguments have been soundly rejected by our colleagues in both the Third and Fifth Districts in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra). We adopt the reasoning in those opinions and affirm.
Accordingly, we reject the People’s argument that defendant forfeited or waived her instructional challenges by choosing to have the trial court instruct the jury with the challenged CALCRIM jury instructions.
1. CALCRIM No. 223
CALCRIM No. 223 defines direct and circumstantial evidence, which a party could present, and explains the difference between the two. The portion of CALCRIM No. 223 that defendant challenges was read by the trial court as follows: “Both direct and circumstantial evidence are acceptable types of the evidence to prove or disprove the elements of the charge, including the specific intent and mental state and acts necessary to [support] a conviction. But neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide . . . whether a fact in issue has been proved based on all the evidence.” (Italics added.)
Defendant advances essentially the same arguments rejected in Anderson, supra, 152 Cal.App.4th at pages 929 through 934 and Ibarra, supra, 156 Cal.App.4th at pages 1186 through 1187. We adopt the reasoning of those two decisions and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
2. CALCRIM No. 302
CALCRIM No. 302 provides guidance regarding the evaluation of conflicting evidence. As given by the trial court here, CALCRIM No. 302 read: “If you determine that there’s a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point, and accept the testimony of the greater number of witnesses. [¶] On the other hand, do not disregard the testimony of the greater number of witnesses or any witness without a reason or because of prejudice or desire to favor one side of [sic] the other. [¶] What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify regarding a point.”
Again, defendant’s arguments have been rejected in Anderson and Ibarra. (Anderson, supra, 152 Cal.App.4th at pp. 938-940; Ibarra, supra, 156 Cal.App.4th at pp. 1190-1191; see also People v. Reyes (2007) 151 Cal.App.4th 1491, 1497.) We adopt the reasoning of Anderson and Ibarra and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
B. Sentencing Issue
Defendant contends her sentence should be vacated and the matter remanded for a new sentencing hearing because the trial court relied on a misstatement in the probation report indicating she was on a grant of probation at the time she committed the current offenses. We disagree.
Initially, we note that the issue has been waived. The failure to lodge an objection to a trial court’s sentencing choices at the time of sentencing concerning its use of mitigating and aggravating factors generally constitutes a waiver of the issue on appeal. (People v. Gonzales (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 353-355.) “In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Scott, at p. 354.)
In any event, defendant’s claim is unmeritorious. “Although not all the procedural safeguards required at trial also apply in a sentencing or probation hearing, such a hearing violates due process if it is fundamentally unfair. [Citation.] ‘Reliability of the information considered by the court is the key issue in determining fundamental fairness’ in this context. [Citation.] A court’s reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process.” (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080; see also People v. Lamb (1999) 76 Cal.App.4th 664, 683.)
“A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person’s life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754.) “In the sentencing process the court may consider prior arrests which did not result in conviction, defendant’s criminal history [citation] and raw arrest data [citation], so long as the information is accurate and reliable [citation] and the judge is not misled into believing an arrest to be a conviction. [Citation.]” (People v. Rhines (1982) 131 Cal.App.3d 498, 509.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (People v. Otto (2001) 26 Cal.4th 200, 212.) “The mere presence of erroneous sentencing information in the record does not require reversal; such information becomes constitutionally significant only if the sentencing court relies upon it.” (People v. Tang (1997) 54 Cal.App.4th 669, 678; see also People v. Ruiz (1975) 14 Cal.3d 163, 168.)
For example, in People v. Eckley, supra, 123 Cal.App.4th 1072, the appellate court vacated a sentence that was based on erroneous information. (Id. at pp. 1081.) The defendant in Eckley was denied probation and sentenced to prison. The trial court relied on sentencing documents that contained material factual misstatements which “exaggerated defendant’s callousness.” (Id. at p. 1081.) “In announcing its probation and sentencing decisions, the [trial] court emphasized defendant’s callousness.” (Ibid.) The appellate court held that the defendant’s sentence must be vacated because the trial court’s reliance on the inaccuracies had denied him due process of law. (Ibid.)
Here, by contrast, there is no evidence in the record to suggest that the trial court relied on material inaccuracies in denying defendant probation and sentencing her to the mitigated term. Prior to imposing sentencing, the trial court recognized the error and acknowledged that defendant had successfully completed probation in her two prior cases. Defendant stated, “Your Honor? I tried – I tried – I tried to stay clean after I did drug court, and then when my mom passed away two years ago, and that’s when I started using. . . .” The court responded, “Giving credit where it’s due, further reviewing the two prior files from the drug court priors, her probation in each of those cases was terminated successfully.” However, the court noted, “Although, it was quite clearly a long and rough road to get to that point in those cases. She received a considerable break by receiving no prison time at that point in both of those cases.” The court thereafter denied probation, finding that defendant had a “significant prior record of felony criminal conduct, specifically two felony convictions for commercial drug transactions.” The court also noted, “I am choosing the midterm of three years in state prison. There was a not [an] insignificant quantity of drugs involved in this case, and I’m also choosing the midterm because there is a three-year enhancement under [Health and Safety Code section] 11370.2 which would be a full three-year enhancement . . . .” The court struck one of the two prior drug conviction (Health & Saf. Code, § 11370.2) in the interest of justice and sentenced defendant to a total term of six years in state prison (three years for count 1 plus three years for one of the prior drug conviction enhancements).
The record is clear that although the trial court was initially under the misrepresentation that defendant was on a grant of probation at the time she committed the instant offenses, that mistake was resolved prior to the court imposing sentence. The trial court did not cite that fact as a reason for denying probation, but instead relied on defendant’s prior criminal record and the amount of drugs found on defendant.
In her reply brief, defendant apparently contends the court failed to take into consideration the mitigating factors listed in the probation report and the “recency and frequency” of the prior crimes. Again, we find these issues waived. (People v. Scott, supra, 9 Cal.4th 331, 353-355.) Even if not waived, we find defendant’s contentions unpersuasive. There is nothing contained in this record that affirmatively shows the court did not consider defendant’s personal situation, the circumstances in mitigation, or the age of the priors. Moreover, a single valid factor in aggravation is sufficient to justify a sentencing choice. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.) Defendant does not claim the court’s reliance on the amount of drugs involved in this case was erroneous.
Criteria affecting the decision to grant or deny probation include facts relating to the defendant, including: “(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct[.]” (Cal. Rules of Court, rule 4.414(b)(1).) Defendant had a prior drug-related conviction in 1995 and a second one in 2000. The current offenses occurred in 2007. Defendant argues the court did not consider her prior criminal record because that record did not indicate a the recency and frequency and “pattern of regular or increasingly serious criminal conduct[.]” (Ibid.) We disagree with defendant’s interpretation of the record. Also, rule 4.414(b)(1) does not prohibit consideration of a defendant’s prior record of criminal conduct when that prior record of criminal conduct is not indicative of a pattern of regular or increasingly serious criminal conduct. Under the plain wording of rule 4.414(b)(1), the defendant’s prior record of criminal conduct may be considered whenever such a record exists.
C. Failure to Pronounce Sentence on Count 2
Defendant asserts, and the People correctly concede, that the matter must be remanded for the trial court to pronounce judgment on count 2. The record discloses that the trial court imposed a three-year midterm sentence on count 1 and added a three-year consecutive term for the prior drug conviction enhancement pursuant to section 11370.2. However, the court did not address count 2. The matter therefore must be remanded for the court to pronounce its sentence on count 2.
The court did not specify to which count it was referring when it imposed sentence, but it did state it was imposing the midterm of three years. Three years is the midterm for count 1, a violation of Health and Safety Code section 11379, subdivision (a), whereas count 2, a violation of Health and Safety Code section 11378, carries a midterm of two years. As such, it appears the court intended the sentence to apply to count 1.
While the minute order indicates that the court sentenced defendant to two years on count 2, to be served concurrently, the reporter’s transcript records no such sentence. “Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.” (People v. Mesa (1975) 14 Cal.3d 466, 471.) The court’s oral pronouncement of judgment therefore controls over its minute order and the abstract of judgment. (Ibid.)
III
DISPOSITION
The matter is remanded to the trial court for the court for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.