Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF119321. Douglas E. Weathers, Judge.
Gregory L. Cannon, 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, Senior Assistant Attorney General, and Ronald A. Jakob, and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
A jury convicted appellant and defendant Francisco Redondo as charged in a six-count information that arose from two separate incidents. Counts 1 through 3 arose from a search of defendant’s home, which revealed a supply of marijuana. The jury convicted defendant of possession of marijuana with intent to sell (Health & Saf. Code, § 11359, count 1), offering to sell, transport or give away marijuana (§ 11360, subd. (a), count 2), and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a), count 3) (the parties stipulated that defendant was previously convicted of a felony, with regard to count 3). As to count 1, the jury also sustained an allegation that defendant was a principal armed with a firearm in the commission of the offense. (Pen. Code, § 12022, subd. (a)(1).) Counts 4 through 6 arose from defendant’s participation in a planned distribution and sale of narcotics to an undercover operative. The jury convicted defendant of conspiracy to import, sell, or transport methamphetamine (Pen. Code, §§ 182, subd. (a), 11379, count 4), importing, selling, or transporting methamphetamine (§ 11379, subd. (a), count 5), and possession of methamphetamine to sell. (§ 11378, count 6.) As to count 4, the jury found true the alleged overt act in furtherance of the conspiracy (that defendant’s co-conspirator transported approximately nine pounds of methamphetamine). The jury also found that the objects of the conspiracy were transportation of methamphetamine and offering to sell methamphetamine. As to counts 4 and 5, the jury sustained allegations that the methamphetamine was in an amount exceeding 100 liters of liquid by volume and four kilograms of solid substances. (§ 11370.4, subd. (b)(2).) The jury sustained further allegations as to counts 4 through 6 that defendant was a principal armed with a firearm in the commission of the offense. (Pen. Code, § 12022, subd. (a)(1).) In addition, the jury found that defendant had a prior strike conviction. The trial court sentenced defendant to a total of 15 years in state prison, and also ordered him to participate in substance abuse counseling while in prison.
All further statutory references will be to the Health and Safety Code, unless otherwise noted.
On appeal, defendant contends: 1) the sentences imposed on counts 4 and 6 should be stayed under Penal Code section 654; 2) the sentence on count 3 should be stayed under section 654; 3) the quantity enhancement allegation attached to count 6 must be stricken as inapplicable; 4) the court committed prejudicial error in failing to adequately instruct the jury regarding counts 4, 5, and 6; and 5) the trial court’s sentencing order that he participate in substance abuse counseling while in prison must be stricken as unauthorized. We agree that the sentences on counts 4 and 6 should be stayed under section 654, and that the court’s order that defendant participate in substance abuse counseling was unauthorized and should be stricken. Otherwise, we affirm.
FACTUAL BACKGROUND
The October 2003 Narcotics Investigation
On October 9, 2003, Drug Enforcement Administration (DEA) Agent Sean Fromson used an undercover operative named Guillermo Jordan in an attempt to locate a major distributor of methamphetamine. Jordan made contact with Martin Ramirez, who gave him a sample of methamphetamine. Jordan told Ramirez he was interested in a deal for nine pounds of methamphetamine. Ramirez placed a phone call to a person he referred to as “Don Pancho” and talked about doing a transaction at Don Pancho’s home. Subsequent investigation led Agent Fromson to conclude that “Don Pancho” was defendant. Ramirez agreed to provide Jordan with nine pounds of methamphetamine for approximately $70,000. Agent Fromson instructed Jordan to set up the meeting in a Home Depot parking lot, so that the DEA could protect him and keep the situation under its surveillance and control.
One week later, Jordan went to the Home Depot parking lot to meet Ramirez. He was equipped with a transmitter and a small recording device, and Agent Fromson was present at the parking lot. Ramirez drove into the parking lot in a green Jeep, and defendant was with him. They got out of the Jeep and went to Jordan’s car to speak with him. Defendant tried to get Jordan to go to his house to do the narcotics transaction there. Jordan eventually agreed to meet them at a Stater Bros. When Ramirez arrived at the Stater Bros., defendant was not with him. Ramirez again tried to persuade Jordan to do the transaction at another location, but when Jordan insisted that they just do the transaction where they were, Ramirez drove off in the Jeep.
The DEA agents and police tracked the movements of the Jeep and noted that it traveled to and from a nearby house where defendant lived with his wife (the residence or the house). DEA agents set up a surveillance of the house and noticed that the Jeep returned to the residence, along with a red Mustang. Defendant walked out of the house to the red Mustang, and then back to the house. A short time after that, defendant and a man later identified as Efren Solorio came out of the house again. Defendant removed a box from the trunk of the Mustang and carried it inside the house, with Solorio following him. Shortly thereafter, Solorio left the house with the box and drove away in the Mustang.
The police conducted a traffic stop on the Mustang and found the box in the trunk. The box contained five Ziploc bag packages of high quality, commercial grade methamphetamine. The cumulative weight of the methamphetamine was 4,024 grams, which was approximately nine pounds. The police also found a loaded gun in the Mustang.
At trial, Deputy James Deruyter, who assisted the DEA in this investigation, testified and opined that the methamphetamine was possessed for sale, and that it had a street value of at least $9,000 per pound.
The August 2004 Search of Defendant’s Residence
On August 25, 2004, Deputy Deruyter and a few other officers executed a search warrant at defendant’s house. When Deputy Deruyter entered the home, he noticed a strong odor of marijuana. When searching the house, he noticed a bedroom closet with a padlock on it that was locked. Deputy Deruyter asked for the key to unlock the closet door. Defendant’s wife retrieved the key from a dresser and opened the closet door. Inside the closet, Deputy Deruyter found eight duffle bags containing about 88 bricks of marijuana, compressed and wrapped in cellophane. The total weight of the marijuana was 250 pounds, and it was worth about $100,000. Deputy Deruyter asked defendant if there were any firearms in the house. Defendant’s wife retrieved a loaded .32-caliber gun from the same dresser drawer that contained the padlock key. Deputy Deruyter found $4,800 in the closet and $1,200 in a pair of defendant’s pants.
ANALYSIS
I. The Sentences on Counts 4 and 6 Should Be Stayed Under Penal Code Section 654
Defendant argues that the sentences on counts 4 and 6 must be stayed under Penal Code section 654, since those convictions were based on a single, indivisible course of conduct. The People concede.
Penal Code Section 654 “precludes multiple punishments for a single act or indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294 (Hester).) Furthermore, “a defendant may not be sentenced ‘for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes.’” (People v. Ramirez (1987) 189 Cal.App.3d 603, 615 (Ramirez).)
Here, defendant was convicted of conspiracy to import, sell, or transport methamphetamine in count 4, importing, selling, or transporting methamphetamine in count 5, and possession of methamphetamine to sell in count 6. The jury found that the objectives of the conspiracy were transportation of methamphetamine and offering to sell methamphetamine, both in violation of section 11379. The court selected count 5 as the base term, and it imposed concurrent sentences on counts 4 and 6.
Defendant was convicted of importing, transporting or selling methamphetamine, in violation of section 11379, in count 5. Thus, the sentence on count 4 for conspiracy to import, sell, or transport methamphetamine must be stayed under Penal Code section 654, since the conspiracy had no objective apart from these crimes. (Ramirez, supra, 189 Cal.App.3d at p. 615; People v. Dominguez (1995) 38 Cal.App.4th 410, 420 (Dominguez).) Furthermore, since count 5 (importing, selling, or transporting methamphetamine) and count 6 (possession of methamphetamine to sell) were based on an indivisible course of conduct, the sentence on count 6 must also be stayed under Penal Code section 654. (Hester, supra, 22 Cal.4th at p. 294; Dominguez, supra, 38 Cal.App.4th at p. 420.)
II. The Court Properly Sentenced Defendant on Counts 1 and 3
Defendant argues that the court violated Penal Code section 654 by imposing sentences on the firearm enhancement (Pen. Code, § 12022, subd. (a)(1)) attached to count 1 and for being a felon in possession of a firearm (count 3). Specifically, he contends that the jury’s true finding on the firearm enhancement “converted count one to a charge that had as one of its elements the possession of a firearm.” He reasons that, since that possession is the same fact that supports his conviction for being a felon in possession of a firearm in count 3, the punishment on the lesser offense in count 3 must be stayed. We disagree.
As defendant and the People point out, there is a split of authority as to whether Penal Code section 654 applies to enhancements in the first instance. (See People v. Coronado (1995) 12 Cal.4th 145, 157, and cases cited therein.) The issue is currently before the California Supreme Court. (See People v. Manila (review granted Sept. 20, 2006, S144885).)
Assuming Penal Code section 654 applies to sentence enhancements (see People v. Arndt (1999) 76 Cal.App.4th 387, 394-396 and People v. Reeves (2001) 91 Cal.App.4th 14, 55-56), we address the crux of defendant’s argument, which is that, because count 1 plus the firearm allegation created the “‘greater offense’” of “‘possession of marijuana for sale while armed,’” we should stay the sentence on the lesser offense of being a felon in possession of a firearm in count 3. In support of this proposition, defendant asserts that “a fact that has the potential to increase a defendant’s sentence is the functional equivalent of an element that converts a charged offense into a greater offense.” He cites Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), as well as People v. Seel (2004) 34 Cal.4th 535, 548-549 (Seel). However, these cases do not support his position. In Apprendi, the United States Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) Apprendi stated that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.” (Id. at p. 494, fn. 19.) However, Apprendi’s holding does not go beyond prescribing certain due process and jury trial guarantees, and it contains no discussion of the section 654 issue posed by defendant.
Seel concerned an allegation under Penal Code section 664, subdivision (a), that an attempted murder was willful, deliberate, and premeditated. (Seel, supra, 34 Cal.4th at p. 550.) The Seel court concluded that under Apprendi, the section 664, subdivision (a) penalty provision constituted an element of the offense because it exposed a defendant to a greater punishment than that authorized by the jury’s verdict. Seel was specific only to an allegation under section 664, subdivision (a), and explained that a section 664, subdivision (a) allegation required the trier of fact to determine whether “‘the attempted murder was willful, deliberate, and premeditated’ before imposing the term of life imprisonment with the possibility of parole.” (Seel, supra, 34 Cal.4th at p. 549.) Seel simply does not apply to the circumstances of the instant case.
Moreover, possession of marijuana for sale was a completely separate offense from the firearm enhancement, since the jury could have convicted him of that crime without finding that he was armed with a firearm. Contrary to defendant’s claim, the jury’s true finding on the firearm enhancement did not add the element of possession of a firearm to the offense in count 1.
In sum, Penal Code section 654 does not apply here and does not require that the sentence on count 3 or the sentence on the firearm enhancement attached to count 1 be stayed.
III. Any Error in the Quantity Enhancement Allegation As to Count 6 Was Harmless
Defendant argues that the jury’s finding and the court’s imposition of the sentence on the quantity enhancement attached to count 6 must be reversed since the wrong quantity enhancement was alleged. He further contends that the People are barred under double jeopardy from seeking a second trial based on the quantity of methamphetamine. The People concede that the quantity enhancement that was alleged in the information was inapplicable, but argue that any error in pleading the wrong enhancement was harmless. We agree.
The quantity enhancement alleged and sustained by the jury as to count 6 provided that any person convicted of a violation of section 11379.6, subdivision (a), would receive an additional term of five years, where the substance exceeded 10 gallons of liquid by volume or three pounds of solid substance by weight. (§ 11379.8, subd. (a)(2).) As defendant points out, this enhancement only applies to a defendant convicted of violating section 11379.6. However, he was convicted of section 11378 in count 6.
The section 11379.8, subdivision (a)(2) enhancement allegation appears to have been a pleading error, but the error was harmless because it did not prejudice defendant in any way. California law requires us to disregard error which is nonprejudicial. (Cal. Const., art. VI, § 13.) The proper quantity enhancement that should have been alleged as to count 6 was section 11370.4, subdivision (b)(2), which provides that any person convicted of a violation of section 11378, with respect to a substance containing methamphetamine, shall receive an additional five years where the substance exceeds four kilograms by weight, or 100 liters by liquid volume. The prosecution alleged, and the jury found true, this enhancement allegation with regard to counts 4 and 5. Since counts 4, 5, and 6 all arose from the methamphetamine seized in connection with the planned sale to the undercover operative, it is apparent that the prosecution meant to allege section 11370.4 with regard to count 6, as well. The prosecution inadvertently erred in alleging section 11379.8, subdivision (a)(2), since, as the People concede, that section is not even applicable to the instant case.
Moreover, the evidence was undisputed that the methamphetamine seized weighed 4,024 grams. That weight exceeds the four kilograms (or 4,000 grams) required by section 11370.4, subdivision (b)(2). Thus, had the prosecution alleged the correct quantity enhancement with respect to count 6, the jury undoubtedly would have sustained it, just as it did with regard to counts 4 and 5. Therefore, any error in the pleading was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Furthermore, the correct quantity enhancement (§ 11370.4, subdivision (b)(2)) carries the same term of imprisonment as the enhancement allegation the jury sustained. Thus, the result would have been the same.
In light of our holding, we need not address defendant’s double jeopardy argument.
IV. The Court Properly Instructed the Jury Regarding the Elements Required to Convict Defendant on Counts 4, 5, and 6
Defendant claims that the trial court’s instructions to the jury regarding counts 4, 5, and 6 omitted several key elements and “permitted, if not required, a conviction based solely on a finding that [he] possessed methamphetamine.” He thus argues that his convictions on those counts must be reversed. We disagree.
In count 4, defendant was charged with conspiracy to import, sell, or transport methamphetamine, in violation of Penal Code section 182, subdivision (a)(1) and section 11379. The court gave the jury complete instructions regarding the general principles of conspiracy and the elements necessary to prove a conspiracy. One instruction defined a conspiracy as “an agreement entered into between two or more persons with the specific intent to agree to commit the crime of Offering to Sell or Give Away or Transport Methamphetamine, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement.” That instruction further stated that “[i]n order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the information to be an overt act.” A separate instruction again stated that in order to find defendant guilty of conspiracy, the jury was required to “find beyond a reasonable doubt that the defendant conspired to commit one or more of the crimes,” and that it had to “unanimously agree as to which particular crime or crimes he conspired to commit.”
In count 5, defendant was charged with selling, transporting, furnishing, possessing for sale, and offering to sell, transport, furnish, administer, and give away methamphetamine, in violation of section 11379, subdivision (a). The court instructed the jury that every person who transported a controlled substance was guilty of a violation of section 11379, and that “[i]n order to prove this crime, each of the following elements must be proved: [¶] 1. A person transported Methamphetamine, a controlled substance; and [¶] 2. That person knew of its presence and nature as a controlled substance.” The court also instructed the jury that every person who offered to sell, furnish, or give away methamphetamine was guilty of a violation of section 11379, and that “[i]n order to prove this crime, each of the following elements must be proved: 1. A person offered to sell, furnish or give away Methamphetamine, a controlled substance; and 2. The person making the offer had the specific intent to sell, furnish or give away the controlled substance.”
In count 6, defendant was charged with possessing methamphetamine for sale, in violation of section 11378. The court instructed the jury that, in order to prove this crime, each of the following elements had to be proved: “1. A person exercised control over or the right to control, an amount of Methamphetamine, a controlled substance; [¶] 2. That person knew of its presence; [¶] 3. That person knew of its nature as a controlled substance; [¶] 4. The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and [¶] 5. That person possessed the controlled substance with the specific intent to sell the same.”
This record belies defendant’s claim that the court’s instructions as to counts 4, 5, and 6 “permitted, if not required, a conviction based solely on a finding that [he] possessed methamphetamine.” The court’s instructions clearly listed numerous elements beyond mere possession. Moreover, although defendant claims that the instructions “omitted several of the key elements” as to these counts, he fails to specify which key elements were missing.
Defendant points to the jury’s questions to the court during deliberations as some sort of evidence to support his claim. He specifically points out the following questions: “1. Regarding sale of narcotics. Does it have to be the intent of the defendant to sell or just have knowledge that it is going to be sold? [¶] 2. What is the definition of ‘intent to sell.’” Defendant fails to intelligibly explain how these inquiries from the jury indicate that the court’s instructions “required” convictions on all three counts, based solely on possession of methamphetamine.
In sum, defendant has given us no reason to reverse his convictions on counts 4, 5, or 6, based on instructional error.
V. The Court Erred in Ordering Substance Abuse Counseling
Defendant argues that the court’s order that he participate in substance abuse counseling while in prison, pursuant to Penal Code section 1203.096, must be stricken as an unauthorized order. We agree.
Penal Code Section 1203.096 provides that if a court finds that the offenses for which the defendant was convicted are drug related, the court shall “recommend in writing that the defendant participate in a counseling or education program having a substance abuse component while imprisoned.” (Pen. Code, § 1203.096, subd. (a).) Thus, this section does not authorize a court to order a defendant to participate in a substance abuse program or counseling, but does require the court to recommend that he participate in such program or counseling.
Here, after pronouncing defendant’s sentence, the court erroneously ordered defendant to participate in counseling or an education program, pursuant to Penal Code section 1203.096. The People concede the error, but assert that the abstract of judgment should be amended to reflect that the trial court’s order was merely a recommendation. However, the abstract of judgment does not actually reflect an order by the court under Penal Code section 1203.096. Furthermore, although a trial court is required to make a written recommendation for counseling when its makes the findings called for in Penal Code section 1203.096, subdivision (b), “there apparently is no corresponding requirement [that] the appropriate authorities heed the recommendation.” (People v. Peel (1993) 17 Cal.App.4th 594, 599.) Penal Code section 1203.096 appears to simply “impose an additional procedural requirement on the courts without any corresponding promise of benefit to the . . . defendants thus referred.” (People v. Peel, supra, at p. 599.) Thus, at this point, we see no need to direct the trial court in any manner with regard to Penal Code section 1203.096.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect that the sentences on counts 4 and 6 are stayed under Penal Code section 654. The court is further directed to forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GAUT, J., MILLER, J.