Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF139194, RIF141561, RIF142580, Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
Susan K. Shaler, 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 Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
Defendant Trevon Jamal Poole was found to be in possession of 1.5 milliliters of PCP. After he was arrested and jailed, he was found to be in possession of 4.33 grams of cocaine. He was released on his own recognizance, but later a warrant was issued for his arrest. When rearrested, he was found to be in possession of 1.01 grams of cocaine.
As a result, defendant was found guilty of possession of PCP for sale (Health & Saf. Code, § 11378.5), possession of cocaine for sale (Health & Saf. Code, § 11351), possession of a drug in a detention facility (Pen. Code, § 4573.8), and simple possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). In connection with this last offense, an on-bail enhancement was found true. (Pen. Code, § 12022.1.) Defendant admitted a one-year prior prison term enhancement. (Pen. Code, § 667.5, subd. (b).)
Defendant was sentenced to a total of nine years four months in prison.
In this appeal, defendant contends:
1. The trial court erred by denying defendant’s Batson-Wheeler motion.
A “Batson-Wheeler motion” challenges the jury panel on the ground that the prosecution has exercised one or more peremptory challenges based on a juror’s membership in a racial or other cognizable group. (Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.)
2. There was insufficient evidence to support the on-bail enhancement.
3. Separate sentencing for both possession of cocaine for sale and possession of cocaine in a penal institution violated Penal Code section 654 (section 654).
4. The trial court erred by imposing a parole revocation restitution fine in the amount of $1,000, when it imposed a restitution fine of only $500.
We find no error affecting the conviction. The People concede the two asserted errors affecting the sentence. We will modify the judgment accordingly.
I
FACTUAL BACKGROUND
On December 13, 2007, during a consent search, a police officer found a vial containing 1.5 milliliters of PCP in defendant’s sock.
After defendant was arrested and jailed, a strip search revealed 4.33 grams of cocaine in his rectum.
Or rock cocaine - see part VI, post.
An expert witness opined that defendant was in possession of both drugs for sale, based primarily on the quantities of the drugs, together with the fact that defendant did not appear to be under the influence.
As of March 26, 2008, defendant had been released on his own recognizance. On April 3, 2008, however, he was arrested on a felony warrant issued in this case. A booking search revealed 1.01 grams of cocaine behind his scrotum.
Defendant, testifying at trial, admitted possessing the drugs, but he denied possessing them for sale.
II
BATSON-WHEELER MOTION
Defendant contends that the trial court erred by denying his Batson-Wheeler motion.
A. Additional Factual and Procedural Background.
Prospective Juror J.L., who had a Hispanic surname, was single and had never been a juror before.
The trial court asked the entire panel, “[H]ave any of you ever had an incident in which you were suspected of being in possession of drugs or narcotics?” Prospective Juror J.L. responded: “I was pulled over by CHP, they asked. I didn’t have anything. It was assumption thinking late night on the freeway, they assumed anything, but it was just judgement [sic], I think, of the cop. I wasn’t speeding or nothing.” He said this had occurred about a year and a half earlier.
The prosecutor asked him, “And do you feel you were treated fairly or unfairly?” He answered, “I wasn’t treated unfairly. The badge, I respected, but I can see why I was picked out. Young guy, by myself, I went with the flow, nothing happened. I had nothing to hide. It wasn’t a problem, but it wasn’t like I was going to cry over it. It wasn’t nothing. They were doing[] their job, and I respected what they had to do, and I had to go through it.”
When asked if it would be “hard for you to be fair and impartial in this case which involves narcotics, ” Prospective Juror J.L. said, “No. I start everything out with a clean slate. I don’t judge if it’s a murder case, drug case, anything else like that, I don’t judge anything outside.”
Prospective Juror P.R., who also had a Hispanic surname, worked for Riverside County as a substance abuse counselor. He testified that he “did defense work and work for the prison system as well[.]” He worked with the substance abuse program at Chino Prison. However, he did not feel that that would make him favor one side or the other.
Trial Juror No. 10, who was White, was married and retired from the Salvation Army. He had never been a juror before.
The trial court asked, “[A]re any of you active in any organization dealing with the suppression of drugs... ?” Trial Juror No. 10 responded, “... I ran a program dealing with people who recovered from drugs and alcohol.” He added: “[S]ometimes people are treated too kindly while they’re in the disease and in my personal opinion, I don’t think we’re doing them a favor.”
The prosecutor exercised four of her first six peremptory challenges against prospective jurors with Hispanic surnames, including Prospective Juror J.L. At that point, defense counsel made a Batson-Wheeler motion. The trial court found a prima facie case of discrimination and asked the prosecutor to state her reasons for the challenges.
Specifically, these were her first, third, fourth, and fifth peremptory challenges.
Regarding Prospective Juror J.L., the prosecutor stated: “[H]e had been pulled over by the CHP for drugs before.... He had obviously had exposure to these types of crimes. I wasn’t convinced that he would be able to put that aside in order to decide this particular case. He also is young and single.... I like to have somebody who has more life experience than that.”
The trial court ruled, “The explanations are legitimate, and the motion is denied.”
The prosecutor exercised her next (seventh) peremptory challenge against Prospective Juror P.R. Defense counsel immediately renewed her Batson-Wheeler motion. The trial court postponed ruling on it until after both sides had accepted the trial jurors and alternate jurors.
At that point, the prosecutor stated: “[G]enerally on drug cases I am somewhat nervous about drug counselors. What mostly concerned me about Mr. R[.] is he had done criminal defense work, so he had obviously seen it from a defense point of view.”
Defense counsel argued that Trial Juror No. 10 “also has drug counseling experience, he is a white male, and [the prosecutor] kept him on the jury while she kicked the Hispanic male off.”
The prosecutor responded: “[T]he thing that concerned me, again, about Mr. R[.], he had done criminal defense work.... I think that [Trial Juror No. 10] also said that programs can be too easy on drug offenders. He was a better fit in terms of he didn’t have prior experience with criminal defense, and that’s the big difference....”
The trial court found “that the reason is legitimate” and denied the motion.
B. Analysis.
Under People v. Wheeler, supra, 22 Cal.3d 258, “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (Id. at pp. 276-277.) Under Batson v. Kentucky, supra, 476 U.S. 79, the same practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson, at p. 88.)
“‘The [Wheeler/]Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]....’ [Citation.]
“‘At the third stage of the Wheeler/Batson inquiry, “the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office who employs him or her. [Citation.]’ [Citation.]
“‘Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] “... We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]” [Citation.]’ [Citation.]” (People v. Taylor (2009) 47 Cal.4th 850, 885-886.)
Here, even though the prosecution challenged a total of five Hispanic-surnamed jurors, defendant disputes the validity of only two of these challenges - to Prospective Jurors J.L. and P.R.
The prosecutor explained that she challenged Prospective Juror J.L. for two reasons - first, because he was young and lacked “life experience, ” and second, because she was not convinced that he would be able to put aside his experience of being “pulled over by the CHP for drugs before.” As defendant concedes, a prosecutor may legitimately challenge a juror based on his or her young age and limited life experience. (People v. Sims (1993) 5 Cal.4th 405, 430-431; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) Defendant argues that J.L.’s age does not appear in the record. However, J.L. described himself as a “[y]oung guy.” The trial court was entitled to rely on its personal observation of J.L.’s age. It was defense counsel’s duty to “make as complete a record of the circumstances as [wa]s feasible.” (People v. Wheeler, supra, 22 Cal.3d at p. 280.) Thus, in the absence of a record to the contrary, we must accept the trial court’s implied finding that J.L. was significantly young.
Defendant also argues that J.L. himself testified that he could be impartial, despite his encounter with the CHP. The prosecutor, however, did not have to believe him. This is precisely the sort of situation in which we must give great deference to the trial court, which was able to observe J.L. and to determine how credible his avowals really were.
The prosecutor also explained that she challenged Prospective Juror P.R. because he was a drug counselor, and he had done criminal defense work. There is substantial evidence to support both points. Defendant invokes a comparative analysis. He argues, as he did below, that both Prospective Juror P.R. and Trial Juror No. 10 were drug counselors, suggesting that the prosecutor’s real reason for challenging Prospective Juror P.R. was discriminatory. (See generally People v. Lenix (2008) 44 Cal.4th 602, 622 [“comparative juror analysis... is relevant, but not necessarily dispositive, on the issue of intentional discrimination”].) The prosecutor’s evident concern about drug counselors in general, however, was that they would tend to sympathize with people involved with drugs. Prospective Juror P.R. admittedly did criminal defense work, further suggesting that he would sympathize with defendant. Trial Juror No. 10, on the other hand, had been a drug counselor with the Salvation Army and thus inferably did not specifically do criminal defense work. Even more important, he expressed a definite lack of sympathy for people involved with drugs. Accordingly, the record supports the trial court’s implied finding that the prosecutor challenged Prospective Juror P.R. for legitimate, nondiscriminatory reasons.
We therefore conclude that the trial court properly denied defendant’s Batson-Wheeler motion.
III
THE SUFFICIENCY OF THE EVIDENCE
TO SUPPORT THE ON-BAIL ENHANCEMENT
Defendant contends that there was insufficient evidence to support the on-bail enhancement to count 4.
The on-bail enhancement required a finding that defendant was on bail or on his own recognizance (or that his release on bail or on his own recognizance had been revoked) when the crime was committed. (Pen. Code, § 12022.1, subds. (a)(1), (b).)
Defendant was arrested for possession of PCP (count 1) on December 13, 2007. Exhibit 6 was a release agreement, signed by defendant and dated December 13, 2007. Exhibit 5 was a minute order from this case dated March 26, 2008, which stated that defendant “remains released on [his] own recognizance.” (Capitalization omitted.) On April 3, 2008, defendant was arrested on a felony warrant issued in this case and was found to be in possession of cocaine (count 4).
There was substantial evidence that defendant was released on his own recognizance between the date the release agreement was filed and March 26, 2008. Indeed, he does not appear to dispute this. Penal Code section 1318 requires a defendant to sign and file a written release agreement before being released on his or her own recognizance. Exhibit 6 constituted the necessary agreement. Moreover, defendant was, in fact, released on his own recognizance, as shown by Exhibit 5. Thus, it is inferable that Exhibit 6 was filed.
The date on which the release agreement was filed was not in evidence. Outside the presence of the jury, however, the trial court and counsel noted that it was in fact filed on December 17, 2007.
Defendant argues, however, that there was insufficient evidence that he was still released on his own recognizance as of April 3, 2008. We disagree. Obviously, he was not incarcerated. Moreover, he had not yet been tried for the December 13, 2007, offenses. Thus, it is fairly inferable that he remained released on his own recognizance. (See Civ. Code, § 3547 [“[a] thing continues to exist as long as is usual with things of that nature”]; S.F. Breweries, Ltd. v. Superior Court (1926) 80 Cal.App. 433, 440 [“it is a well-known disputable presumption of law that a status once established is presumed to remain until the contrary appears”]; see, e.g., People v. Huntley (1928) 93 Cal.App. 504, 505-506 [from evidence that defendant was married in 1914, it was inferable that he was still married in 1927]; People v. Velasquez (1924) 70 Cal.App. 362, 364, 366 [from evidence that defendant was born in Mexico, it was inferable that he was still an alien at the age of 21].)
Admittedly, there was some evidence that, as of April 3, 2008, there was a warrant for defendant’s arrest in this case. Thus, an alternative inference is possible (or even more likely) - that his release on his own recognizance had been revoked. An on-bail enhancement under Penal Code section 12022.1, however, also applies under this circumstance. Accordingly, there was sufficient evidence to support the on-bail enhancement.
IV
MULTIPLE PUNISHMENT IN VIOLATION OF PENAL CODE SECTION 654
Defendant contends that imposing separate, unstayed sentences for possession of the same cocaine under both count 2 (possession of cocaine for sale) and count 3 (possession of cocaine in a penal institution) violated section 654.
The People concede that this was error. We accept their concession. (See People v. Thomas (1991) 231 Cal.App.3d 299, 306-307 [section 654 barred multiple punishment for possession and transportation of same cocaine base]; People v. Johnson (1970) 5 Cal.App.3d 844, 847 [section 654 barred multiple punishment for both possession and transportation of same amphetamine], disapproved on other grounds in People v. Rubacalba (1993) 6 Cal.4th 62, 66; but see People v. McGuire (1993) 14 Cal.App.4th 687, 699 [multiple punishment for being under the influence and for driving under the influence did not violate section 654].) We will modify the judgment accordingly.
V
THE AMOUNT OF THE PAROLE REVOCATION RESTITUTION FINE
Defendant contends that the trial court erred by imposing a parole revocation restitution fine in the amount of $1,000 (Pen. Code, § 1202.45) when it had imposed a restitution fine of only $500 (Pen. Code, § 1202.4).
At sentencing, there was this exchange:
“THE COURT:... You’re ordered to pay a restitution fine of $1,000, which will be suspended - strike that. You will pay a restitution fine of $500..., and I will impose a parole restitution fine in the sum of $1,000 which will be suspended unless parole is revoked....
“That’s the one that is used for the canteen, isn’t it, in state prison? I think it is.
“[DEFENSE COUNSEL]: I honestly don’t know.
“THE COURT: The reason I reduced it is I believe that’s the one they use for credit for canteen. That’s the reason I’m going to reduce it to $500.” (Capitalization omitted.)
The amount of the parole revocation restitution fine must be the same as the amount of the restitution fine. (Pen. Code, § 1202.45.) It appears that the trial court simply misspoke; it intended to set the amount of both fines at $500.
The People concede that, in its oral pronouncement of judgment, the trial court imposed a $1,000 fine. They argue that there was no error, however, because the relevant minute order and the abstract of judgment both indicate that the amount of the fine was only $500.
Ordinarily, the trial court’s oral pronouncement of judgment is controlling. (People v. Delgado (2008) 43 Cal.4th 1059, 1070, and cases cited.) In light of the People’s concession, and in the interest of ensuring a clear record, we hold that the correct amount of the fine was $500. However, it does not appear that the error was or could possibly be prejudicial.
VI
THE SUFFICIENCY OF THE EVIDENCE THAT
DEFENDANT POSSESSED COCAINE RATHER THAN COCAINE BASE
Finally, on our own motion, we consider whether there was sufficient evidence that defendant was in possession of cocaine - rather than cocaine base - to support his conviction of possession of cocaine for sale (count 2). We conclude, however, that there was.
Defendant was charged and convicted on this count under Health and Safety Code section 11351. The possession of cocaine for sale violates this section only if the cocaine is not in base form. The possession of cocaine base for sale does violate Health and Safety Code section 11351.5 (see Health & Saf. Code, § 11054, subd. (f)(1)), but not Health and Safety Code section 11351 (see Health & Saf. Code, § 11055, subd. (b)(6)). (People v. Howell (1990) 226 Cal.App.3d 254, 260-261; People v. Adams (1990) 220 Cal.App.3d 680, 685-688.)
“‘When reviewing a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.’ [Citation.] ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.) “We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Here, the officer who first found the 4.33 grams of cocaine described it as a single piece of a white solid substance that appeared to be “rock cocaine” - i.e., cocaine base. However, the cocaine was not photographed, and the cocaine itself was not offered into evidence. Moreover, the criminalist who analyzed the cocaine was not called to testify, and his report was not introduced. Instead, both sides entered into a written stipulation to the effect that the substance had been properly analyzed and had been “conclusively found to be cocaine.” (Italics added.)
This was substantial evidence that the substance was in fact nonbase cocaine. Of course, it is entirely possible that the substance was actually cocaine base. Indeed, as the penalty for possession of cocaine base for sale is more severe than for possession of nonbase cocaine, it is theoretically possible that defense counsel deliberately entered into a misleading stipulation. Even if so, that stipulation now precludes us from reversing defendant’s conviction for the lesser offense.
VII
DISPOSITION
Execution of the eight-month term imposed on count 3 is hereby stayed. As a result, the total sentence becomes eight years eight months. This stay will become permanent when defendant has served the remainder of his sentence.
The judgment as thus modified is affirmed. The trial court is directed to amend the sentencing minute order and the abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: RAMIREZ P.J., KING J.