Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 08CM9119, Steven D. Barnes, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Poochigian, J.
STATEMENT OF THE CASE
On February 19, 2009, the Kings County District Attorney filed an information in the superior court charging appellant Gregorio Reyes with one count of possession of narcotics paraphernalia while incarcerated in Avenal State Prison (Pen. Code, § 4573.6) with a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior prison term (§ 667.5, subd. (b)). On February 23 and 27, 2009, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
Jury trial commenced on April 27, 2009, and the court bifurcated trial of the special allegations. On April 28, 2009, the jury returned a guilty verdict on the substantive count. That same day, appellant admitted the truth of the prior strike conviction and the court dismissed the prior prison term allegation on motion of the district attorney.
Appellant requested immediate sentencing and the court denied him probation and imposed the doubled middle term of six years, to run consecutively to the two-year eight-month lower term imposed in Superior Court, Southeast District, Los Angeles County, case No. VA-097923-01 (§ 459). The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and ordered appellant to provide samples of fingerprints and bodily fluids for DNA profiling (§ 296, subd. (a)(1)).
On the same date as sentencing, appellant filed a timely notice of appeal. We affirm.
STATEMENT OF FACTS
Correctional Officer Ronald Gatlin testified he was on duty at Avenal State Prison during the second watch (6:30 a.m. to 2:30 p.m.) of November 16, 2008. Officer Gatlin served as the floor officer in facility 1, PAS unit 110. At 10:45 a.m., Gatlin performed a security check of the housing unit. He went from dorm to dorm to check on the welfare of the inmates. In dorm 5, he saw appellant sitting on bunk number 1-29X with another inmate. Gatlin made eye contact with appellant and the latter became nervous and fidgety. Appellant attempted to conceal something toward the top of the bunk and then made a circular hand motion under the end of the mattress. Gatlin conducted a clothed body search of the two inmates and ultimately lifted up the mattress. He found a syringe with a needle under the end of the mattress.
Defense
Appellant did not present any documentary or testimonial evidence but chose to rely on the state of the prosecution evidence.
DISCUSSION
I. DID THE TRIAL COURT FAIL TO INSTRUCT SUA SPONTE ON THE LESSER INCLUDED OFFENSE OF UNAUTHORIZED POSSESSION OF DRUG PARAPHERNALIA (§ 4573.8)?
Appellant contends the trial court committed prejudicial error by failing to instruct sua sponte on unauthorized possession of drug paraphernalia (§ 4573.8) as a lesser included offense of section 4573.6, the crime charged in count 1.
Section 4573.6 states in relevant part:
Section 4573.8 states in relevant part:
In a criminal case, the jury may convict the defendant of either the charged offense or a lesser offense that is necessarily included within the charged offense. (§ 1159.) Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.)
A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on another point in People v. Barton (1995) 12 Cal.4th 186, 200-201 (Barton).) This sua sponte obligation extends to lesser included offenses if the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351.) A criminal defendant is entitled to an instruction on a lesser included offense only if there is evidence which, if accepted by the trier of fact, would absolve the defendant from guilt of the greater offense but not the lesser. (People v. Memro (1995) 11 Cal.4th 786, 871.)
The requirement that courts give sua sponte instructions on lesser included offenses is based in the defendant’s constitutional right to have the jury determine every material issue presented by the evidence. This sua sponte duty to instruct exists even if the defendant expressly objects to the instruction. (People v. Lopez (1998) 19 Cal.4th 282, 288.) To determine whether a lesser offense is necessarily included in the charged offense, one of two tests must be met. The elements test is satisfied when all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. If a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. Under the accusatory pleading test, a lesser offense is included within the greater charged offense if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed. (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)
Appellant contends the elements of the two offenses--sections 4573.6 and 4573.8--are virtually identical, with the only difference being a reference to “controlled substances” in section 4573.6 and a reference to “drugs” in 4573.8. He further contends his conduct in the instant case consisted of the brief possession of a syringe, conduct falling within the purview of both statutes. Appellant submits:
Chapman v. CaliforniaUnlike other sections of the criminal law which deal with the possession of discrete types of contraband, section 4573.6 has been interpreted to preclude multiple convictions for simultaneous possession in the same place and at the same time of various types of contraband. (See People v. Rouser (1997) 59 Cal.App.4th 1065 [defendant cannot be convicted under this statute of possession of both heroin and methamphetamine when possessed at same place and at same time; possession of more than one type of contraband at same place and time is a single offense if prosecuted under § 4573.6].) Section 4573.8 has parallel meaning with section 4573.6, although broader in scope. The rationale of People v. Rouser, supra, 59 Cal.App.4th 1065 applies by analogy. In addition, section 4573.8 is general and section 4573.6 is specific, and thus the former includes the discrete acts covered by the latter. (People v. DeLaCruz (1993) 20 Cal.App.4th 955, 958 [prosecution under a general statute is precluded when the facts of the alleged offense parallel the acts proscribed by a special statute].)
Section 4573.6 appears to be aimed at problems of prison administration. (People v. Rouser, supra, 59 Cal.App.4th at p. 1071.) Section 4573.6 is related to, and to be construed together with, section 4573 and 4573.5, which prohibit bringing or sending drugs or drug paraphernalia into a prison or jail. The ultimate evil with which the Legislature was concerned was drug use by prisoners. The Legislature approached the problem by attacking the presence of drugs and paraphernalia in prisons and jails. Section 4573.6 prohibits possession, not use. The statute is concerned with the potential of the item in question. (People v. Gutierrez (1997) 52 Cal.App.4th 380, 386-387.)
Section 4573.6 addresses the possession of “any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances....” Section 4573.8 addresses the possession of “drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs, or alcoholic beverages....” The phraseology of section 4573.8 is much broader than that of section 4573.6, which focuses on controlled substances defined in specified sections of the Health and Safety Code and devices or injecting or consuming such substances.
Respondent aptly notes that section 4573.6 makes it unlawful to possess controlled substances or paraphernalia intended to be used for consuming controlled substances in prison. In contrast, section 4573.8 makes it unlawful to possess drugs or alcoholic beverages, or paraphernalia intended to be used for consuming drugs or alcohol in prison. Since section 4573.8 is the broader, more general statute, we cannot see how it can be deemed a “lesser included offense” under either the statutory elements test or accusatory pleading test in California.
Section 4573.8 is not a lesser included offense of section 4573.6 and thus there was no sua sponte obligation by the trial court to give an instruction on the former statute.
II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY FAILING TO GRANT APPELLANT’S MOTION TO STRIKE THE PRIOR FELONY CONVICTION UNDER PEOPLE V. SUPERIOR COURT (ROMERO) (1996) 13 CAL.4TH 497?
Appellant contends the trial court’s refusal to strike his prior conviction was an abuse of discretion within the meaning of People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
He specifically argues:
A criminal defendant’s request that a court strike one or more strike convictions pursuant to section 1385 is commonly called a Romero motion. (See People v. Superior Court (Romero), supra, 13 Cal.3d 497 (Romero).) In Romero, the California Supreme Court concluded that section 1385, subdivision (a) “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” And although “[a] defendant has no right to make a motion to dismiss, and the trial court has no obligation to make a ruling, under section 1385, ” a defendant “[has] the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading....’” (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
In reviewing the denial of a Romero motion, the trial court’s decision to strike or not strike a previous serious or violent felony is reviewed under a deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 374.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Id. at p. 378.)
In People v. Williams (1998) 17 Cal.4th 148 (Williams), our Supreme Court summarized the “deferential” standard of review of a Romero ruling for abuse of discretion as “whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (Id. at p. 162.) On appeal, “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In the instant case, appellant admitted the truth of an assault with a deadly weapon allegation (§ 245, subdivision (c)) underlying the strike allegation of the information but did not admit the offense constituted a strike. In exchange, the court granted the prosecution’s motion to strike a prior prison term allegation (§ 667.5, subd. (b)). Appellant subsequently waived his right to an information or allegation report from the probation office and asked for immediate sentencing before the trial court. Appellant’s defense counsel made a Romero motion, noting “the allegation here of criminal conduct previously is significantly more serious than the current charge that he is accused of, simple possession.” Counsel further noted, “The strike allegation automatically will double the time and I don’t believe that it should be considered by the Court in aggravation, in this matter.” The court then indicated its intention to impose the doubled middle term. Defense counsel argued for the mitigated term, noting cooperation on appellant’s part, the lack of planning and sophistication, and the fact appellant merely possessed the syringe. The prosecutor argued for the doubled aggravated term, noting appellant’s prior criminal history, his opportunity to complete an eight-month drug treatment program in 2006, and his poor performance on parole.
After hearing the arguments of counsel, the court ruled in pertinent part:
sicAccording to appellant’s section 969, subdivision (b) packet, he sustained a second degree burglary conviction (§ 459) in 2006 and an assault with a firearm conviction (§ 245, subd. (c)) in 2003. In the instant case, the court considered the nature and circumstances of appellant’s present felony, his prior criminal record, and his background. The court specifically cited the seriousness of appellant’s current and prior offenses and his poor performance on probation or parole. The prosecutor observed that appellant had committed three felonies (two priors and the current one) within a period of five years and had the opportunity to complete an eight-month drug treatment program in 2006.
In light of these facts and circumstances, the trial court did not abuse its discretion in denying his motion to dismiss the prior strike conviction under Romero.
DISPOSITION
The judgment is affirmed.