Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F6545
RAYE, P. J.Following a jury trial, defendant Kao Chin Saephan was convicted of possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of methylenedioxymethamphetamine (commonly known as MDMA or ecstasy) for sale (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor providing false information to an officer (Pen. Code, § 148.9, subd. (a)). The court sustained a prior prison term allegation (§ 667.5, subd. (b)) and sentenced defendant to four years eight months in prison.
Subsequent undesignated statutory references are to the Penal Code.
On appeal, defendant contends: 1) the court erred in excluding his exculpatory hearsay statement; 2) it should have taken judicial notice of codefendant’s flight after being charged; 3) evidentiary rulings deprived him of his Sixth Amendment right to present evidence; 4) he is entitled to custody credits under the amended section 4019; and 5) the prior prison term enhancement should not have been attached to either count. We shall modify the sentence and affirm the judgment as modified.
FACTS
Redding Police Officer Derrick Ross was in his patrol car on September 8, 2009, at approximately 10:00 p.m. when he saw a Honda parked on the wrong side of the street. Officer Ross lit up the car with his spotlight; he saw defendant sitting in the passenger seat, and codefendant Khamtith Kit Siphanya sitting in the driver’s seat with the door open and one leg dangling out of the car.
Officer Ross approached the car. He saw Siphanya make a motion towards the passenger area, while defendant reached towards the center console and underneath the seat. Officer Ross asked defendant for his name and birth date. Defendant said he was Steve Lo Saephan, born on January 29, 1985. Officer Ross checked the name and birth date, but found no results. He obtained consent to search defendant and found a digital scale in defendant’s front pocket. Defendant also had $447 in cash.
Asked if he had any methamphetamine, defendant replied: “I think I have a ten-sack, ” a reference to $10 worth of methamphetamine. Officer Ross did not find any methamphetamine on defendant, and had him sit in the back of the patrol car.
Officer Ross next obtained Siphanya’s consent to search the Honda. Officer Ross found a sandwich baggie containing 18 smaller baggies, which was hidden between the center console and front passenger seat. Seventeen of the baggies contained methamphetamine and the remaining baggie held a single MDMA pill. The drugs and their containers had a gross weight of 28.4 grams. Officer Ross also found defendant’s California identification card in the passenger side compartment; defendant eventually admitted that he had lied about his identity.
A search of Siphanya discovered a large baggie containing 17.97 grams of methamphetamine and $2,417 in cash. Based on his training and experience, Officer Ross concluded the drugs were possessed for sale.
DISCUSSION
I
During cross-examination of Officer Ross, defense counsel sought to question him about whether defendant said he had agreed to purchase a small quantity of methamphetamine from Siphanya just before the officer arrived. The People made a hearsay objection, and defense counsel responded it was admissible as “state of mind” evidence. The court sustained the objection.
Defendant argues the statement was admissible under Evidence Code section 356 to explain his earlier statement to Officer Ross that “I think I have a ten-sack.” He did not argue this theory of admissibility to the trial court, which forfeits the contention on appeal. (People v. Hart (1999) 20 Cal.4th 546, 606.)
His claim also fails on the merits.
Evidence Code Section 356 states in pertinent part: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party....”
According to the trial testimony, defendant made the “ten-sack” admission after Officer Ross searched him and found the electronic scale. He then obtained Siphanya’s consent to search the car and found the methamphetamine. Defendant was arrested after Officer Ross found the methamphetamine. At the preliminary hearing, Officer Ross testified that defendant was given Miranda warnings after he was arrested. After waiving his Miranda rights, defendant said he was trying to buy $20 worth of methamphetamine from Siphanya when Officer Ross showed up.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
“A court does not abuse its discretion when under Evidence Code section 356 it refuses to admit statements from a conversation or interrogation to explain statements made in a previous distinct and separate conversation. [Citations.]” (People v. Johnson (2010) 183 Cal.App.4th 253, 287.) Defendant’s two statements were separated by the search of the car, the search of Siphanya, defendant’s arrest, and the Miranda warnings. As they come from distinct conversations, the latter statement does not provide necessary context for the former. Defendant’s second statement was not admissible under Evidence Code section 356.
II
Before trial, defendant requested the court take judicial notice that Siphanya had been charged with possession for sale of methamphetamine and possession for sale of MDMA, was released from bail, and subsequently a warrant had been issued for his arrest. He claimed Siphanya’s flight was relevant as evidence of a guilty mind, which supported an inference that the drugs were possessed by Siphanya rather than defendant. The court denied the request, finding the inference was too speculative.
Defendant contends it was an abuse of discretion to deny his request for judicial notice. We disagree. While flight after the commission of a crime is evidence of a guilty mind (see People v. Garrison (1989) 47 Cal.3d 746, 773), Siphanya’s flight is only minimally relevant to the question of defendant’s guilt.
Two people can possess contraband together by jointly exercising dominion and control over the item. (People v. Williams (1971) 5 Cal.3d 211, 215.) One of the two bundles of drugs was closer to defendant than Siphanya, between defendant’s seat and the center console. This bundle was concealed, and defendant was seen reaching near this area as Officer Ross approached the car. Defendant had the only scale in the car and had a significant amount of cash on him. In light of the strong evidence of joint possession for sale, evidence of Siphanya’s guilty mind is not relevant to whether defendant was guilty of the charged offenses.
It was not an abuse of discretion for the court to decline to take judicial notice of a chain of evidentiary elements that ostensibly established defendant’s flight and, thus, his “guilty mind” and solitary possession of all the drugs.
III
Relying on Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297], and Montana v. Egelhoff (1996) 518 U.S. 37 [135 L.Ed.2d 361] (Egelhoff), defendant contends the cumulative impact of the court’s erroneous evidentiary rulings deprived him of his due process right to present evidence.
In Egelhoff, the Supreme Court found that under Chambers, a series of “erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.” (Egelhoff, supra, 518 U.S. at p. 53 [135 L.Ed.2d at p. 374].) Since the court’s evidentiary rulings were correct, there was no due process violation.
IV
The court awarded defendant 120 days’ presentence custody credit and 60 days’ conduct credit.
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 4019, subds. (b) & (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant, having served 120 days of presentence custody, is entitled to 120 days of conduct credit.
Defendant raises this claim in his brief, which is unnecessary in light of our standing order.
V
The court imposed a one-year prior prison term enhancement for count 1 (possession of methamphetamine for sale) and stayed sentence for the term on count 2 (possession of MDMA for sale). The parties agree this was in error. They are correct.
“[W]hen imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense.” (People v. Williams (2004) 34 Cal.4th 397, 400, italics omitted.)
We shall modify the judgment to strike one of the prior prison term enhancements and to impose it separately from the offenses.
DISPOSITION
The judgment is modified to strike one of the two section 667.5, subdivision (b) enhancements and to impose the remaining enhancement separate from the underlying offenses. Defendant is to be awarded 120 days’ presentence conduct credit.
As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect that a single prior prison term enhancement is imposed separately from counts 1 and 2, and that defendant is awarded 120 days’ conduct credit, and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J. BUTZ, J.