Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct.No. INF056380David B. Downing, Judge.
Susan S. Bauguess, 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, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant appeals from convictions for possession for sale of controlled substances arising from seizures made during the execution of two separate search warrants. He challenges (1) the order granting consolidation of the two cases filed respecting the drugs seized on the occasion of each search warrant execution; (2) the sufficiency of the evidence to support one of the possession-for-sale counts; (3) the sufficiency of the evidence to support the arming enhancement (Pen. Code, § 12022, subd. (c)) as to the two possession-for-sale counts; (4) the order staying, rather than striking, the enhancements to the possession-for-sale counts relating to defendant’s prior convictions for drug violations (Health & Saf. Code, § 11370.2, subd. (c)); and (5) error in imposing a term for the on-bail enhancement with respect to a count that had been stayed. We affirm as modified.
BACKGROUND
Case No. INF056380 [Counts 1 and 2]:
On October 5, 2006, members of the Coachella Valley Narcotics Task Force executed a search warrant at the mobile home where defendant resided. Defendant and a female were found in the bedroom, and detained in the kitchen during the search. In the bedroom, on the dresser, searching deputies found an Altoid tin, containing eight tadpole-shaped plastic bindles, each containing .3 grams of methamphetamine. A jewelry jar held a bindle containing .63 grams of methamphetamine. In the kitchen of the mobile home, three operational cell phones, in addition to a residential telephone, were located on the table. Also in the kitchen, searching officers found a plastic smoking device, and a .22-caliber Springfield rifle was found in the broom closet.
Detective Weigle, who qualified as an expert, expressed the opinion that the methamphetamine was possessed for the purpose of selling because the large amount of methamphetamine was divided into eight separate bindles. Deputy Lewis expressed the opinion that the methamphetamine was possessed with the intent to sell, although she found no evidence of sales transactions, based on the number of bindles, amount of methamphetamine found, the number of cell phones, and the presence of the gun.
On March 12, 2007, defendant was charged with possession for sale of methamphetamine (Health & Saf. Code, § 11378, count 1), and possession of a firearm by a convicted felon. (Pen. Code, § 12021, subd. (a)(1).) It was further alleged with respect to count 1 that defendant had been previously convicted of an enumerated drug offense (Health & Saf. Code, § 11370.2, subd. (c)). It was further alleged defendant had been previously convicted of three felonies and served prison terms for each [prison priors]. (Pen. Code, § 667.5, subd. (b).)
Case No. INF057582 [Counts 3, 4, and 5]:
On January 11, 2007, a second search warrant was executed at defendant’s residence. Defendant was present inside the mobile home with a different female. Defendant was searched and 1.3 grams of methamphetamine was found in a bindle in his pocket. In the kitchen, searching officers found more than five but less than 10 pieces of white plastic similar to the plastic in which the methamphetamine was wrapped. A shotgun was found in the same broom closet of the kitchen where the rifle that was seized in the previous search had been found. In the bedroom, a green plastic case was examined and found to contain 18 bindles of methamphetamine. In the dresser, a notebook was found with information relating to transactions (pay/owe sheets).
Inside a black bag in the kitchen were two digital scales and two baggies of marijuana, one containing 32.19 grams, and the other containing 2.6 grams. Digital scales are usually used by sellers to weigh drugs; buyers do not normally use them at the time of purchase. The drug expert expressed the opinion the methamphetamine and marijuana were possessed for sale based on the quantities of drugs, the methamphetamine packaging, scales, and pay/owe sheets.
On June 4, 2007, an amended information was filed charging defendant with possession for sale of methamphetamine (Health & Saf. Code, § 11378, count 1), possession for sale of marijuana (Health & Saf. Code, § 11359, count 2), and possession of a firearm by a convicted felon. (Pen. Code, § 12021, subd, (a)(1), count 3.) In connection with count 1, the information alleged defendant had been previously convicted twice of drug offenses (Health & Saf. Code, § 11370.2, subd. (c)), and that he was armed with a firearm at the time of the commission of the possession for sale of methamphetamine. (Pen. Code, § 12022, subd. (c).) It was further alleged defendant was out on bail in case No. INF056380 at the time of the offenses.
The two cases were consolidated for trial. On June 6, 2007, the jury found defendant guilty on all counts and found the firearm enhancement allegation true. In a separate court trial, the prior drug conviction allegations, the prison prior allegations, and the on-bail enhancement were found true. Defendant was subsequently sentenced to an aggregate term of 17 years eight months. Defendant timely appealed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion In Consolidating the Cases.
Penal Code section 954, governing the joinder of counts in a single trial, provides that an accusatory pleading may charge two or more different offenses of the same class of crimes or offenses, under separate counts. The same statute goes on to provide that the court may, in its discretion, order that the different offenses be tried separately. Offenses “of the same class” are those offenses possessing common characteristics or attributes. (People v. Lucky (1988) 45 Cal.3d 259, 276.) We review the trial court’s ruling for abuse of discretion, but we must consider whether a gross unfairness occurred that denied the defendant a fair trial or due process. (People v. Smith (2007) 40 Cal.4th 483, 510.)
Where the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129.) Improper consolidation violates due process only if it results in a trial that is fundamentally unfair. (Park v. California (9th Cir. 2000) 202 F.3d 1146, 1149.) Error involving misjoinder affects substantial rights and requires reversal if it results in actual prejudice because it had substantial and injurious effect or influence in determining the jury’s verdict. (United States v. Lane (1986) 474 U.S. 438, 449 [106 S.Ct. 725, 88 L.Ed.2d 814].)
The burden is on the defendant to demonstrate a reasonable probability that the joinder affected the jury’s verdicts. (People v. Grant (2003) 113 Cal.App.4th 579, 588.) The factors to be considered include: (1) cross-admissibility of the evidence, (2) whether some charges are likely to unusually inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case, and (4) whether one of the charges is a capital offense or the joinder of charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161.)
In the trial court, defendant conceded the class of two substantive crimes is similar. He focuses his argument on an assertion that the first offense was weaker than the case arising from the second search such that joinder posed the possibility of a spillover effect from the aggregate evidence. We disagree. The fact there was more evidence seized in the second search does not necessarily make the charges arising from the first search “weak.”
The preference for a joint trial justified consolidation in this case. The two cases were of the same class of offenses because the drug charges and enhancements were almost identical. The evidence was cross-admissible, especially in light of the fact that several of the same witnesses were listed as witnesses for both cases prior to the order consolidating the two cases. Of significance is the fact that the pay-owe sheet (exhibit 19) seized during the January 2001 search memorialized transactions dated October 1, 2006, and October 2, 2006, prior to the execution of the first search warrant. Further, none of the charges were likely to inflame the defendant since all the charges were quite similar. Finally, as we have pointed out, the fact the later filed charges involved more evidence of sales activity does not necessarily make the first case a “weak case.” There was no abuse of discretion in consolidating the two cases.
We augmented the record to include Exhibits 18 and 19.
2. There Is Substantial Evidence to Support the Conviction for Possession For Sale of Methamphetamine in Count 1.
Defendant contends that there was insufficient evidence to support his conviction under count 1 for possession for sale of methamphetamine. Specifically, defendant relies on the lack of scales and the absence of pay-owe sheets, coupled with the testimony of the drug experts that the amount of drugs found during the first search of defendant’s residence could have been possessed for personal use.
The sufficiency of the evidence to support the conviction is reviewed under a substantial evidence standard. “When reviewing a claim of insufficiency of evidence, we must view the evidence in the light most favorable to the verdict and presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from that evidence. The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. We must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proof beyond a reasonable doubt of each essential element of the offense. Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Cervantes [(2001)] 26 Cal.4th [860,] 866; People v. Caldwell [(1984)] 36 Cal.3d [210,] 217; People v. Kainzrants [(1996)] 45 Cal.App.4th [1068,] 1076.)” (People v. Briscoe (2001) 92 Cal.App.4th 568, 584-585.)
There was substantial evidence to support the conviction for possession of methamphetamine for sale: (1) law enforcement officers executing the first search warrant found eight bindles of methamphetamine, each weighing approximately .3 grams; (2) a separate, larger bindle, contained more than .6 grams; (3) drug experts expressed the opinion that the quantity of methamphetamine found was more than a personal user would have on hand; (4) a person buying larger quantities for personal use would not separate it out into bindles; (5) drug sellers typically have multiple cell phones and defendant had multiple cell phones, that rang “a lot” during the search. In the opinion of two drug experts, the methamphetamine was possessed with the intention of selling it.
It was for the jury to accept or reject the opinion evidence (People v. Harris (2000) 83 Cal.App.4th 371, 375), and it is not our place to second guess the verdict on the ground the circumstantial evidence might also have supported the conclusion defendant was a heavy user. Where circumstantial evidence reasonably justifies the jury’s verdict or findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Whisenhunt (2008) 44 Cal.4th 174, 201.)
There was substantial evidence to support the conviction on count 1.
3. There is Sufficient Evidence to Support the Arming Enhancement Respecting the Possession-For-Sale Counts.
Defendant contends that because the guns found during the two separate searches were located in a kitchen broom closet, while the methamphetamine was located in the bedroom, the firearms were not situated so as to facilitate the underlying charges of possession of methamphetamine for sale. We disagree.
Penal Code section 12022, subdivision (c) provides for an additional and consecutive term of imprisonment of three, four, or five years in state prison when any person is personally armed with a firearm in the commission of certain drug offenses. A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. (People v. Bland (1995) 10 Cal.4th 991, 997 (Bland).) In reviewing the sufficiency of the evidence to support the arming enhancement (Pen. Code, § 12022, subd. (c)), we apply the same standard of review respecting the sufficiency of evidence to support the substantive crime. (People v. Alvarez (1996) 14 Cal.4th 155, 225.)
The crime of drug possession is a continuing offense, one that extends throughout the entire time the defendant asserts dominion and control over illegal drugs. (Bland, supra, 10 Cal.4th at p. 999.) The easier cases are those in which the firearm is kept in close proximity to the contraband, even if the defendant is not present. (See id. at p. 995.) However, because the offense of possession is not limited to a discrete event (id. at p. 999), an arming enhancement under Penal Code section 12022 can be established if, among other criteria, “at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense.” (People v. Bradford (1995) 38 Cal.App.4th 1733, 1738-1739.)
During the October 2006 search, deputies executing the search warrant found an Altoid tin containing bindles of methamphetamine, along with another container holding a large amount of methamphetamine on a dresser in the bedroom; they also found several cell phones, a pipe-like smoking device, and a BB gun on the kitchen table, and a .22-caliber rifle in the kitchen broom closet. Based on this evidence, the jury could reasonably conclude the possessory offense was not limited to the bedroom, but extended to the kitchen and that the firearm was available for immediate use.
Similarly, with respect to the subsequent search conducted in January 2007, in addition to methamphetamine found in defendant’s pocket, additional contraband was found in a cupboard in the kitchen along with plastic used for packaging, and a shotgun was located in the kitchen broom closet. Also, 18 bindles of methamphetamine were found in the bedroom.
As to both searches, the jury could reasonably conclude the offense of possession for sale of methamphetamine was not limited to the bedroom, but extended to the kitchen area where the firearms were stored. There is substantial evidence to support the true finding that the firearms were available for use either offensively or defensively in the commission of the offenses.
4. The Court Erred in Staying the Prior Drug Conviction Enhancements as to Count 3.
Counts 1 and 3 related to the substantive offenses of possession for sale of methamphetamine. Respecting count 1, the trial court imposed a two-year sentence, along with consecutive three-year terms for the two prior drug conviction enhancements pursuant to Health and Safety Code section 11370.2. Respecting count 3, the court imposed one-third the midterm for the substantive charge and stayed the two prior drug conviction enhancements. Defendant argues the enhancements as to count 3 should have been stricken, rather than stayed, and respondent agrees. We agree also.
Enhancements pursuant to prior convictions of drug related offenses (Health & Saf. Code, § 11370.2) are status enhancements which relate to the offender, not the offense. (People v. Tillotson (2007) 157 Cal.App.4th 517, 542.) As a status enhancement, it may only be imposed once. Thus, the enhancement to count 3 should have been stricken. (Ibid.)
5. The Court Erred in Imposing a Term for the On-Bail Enhancement When It Stayed the Term for the Substantive Offense.
Defendant contends the on-bail enhancement should have been stayed because the court linked it to a count for which the court stayed the imposition of sentence, count 5. We agree that the court should not have imposed an enhancement to a substantive offense for which the court stayed sentence, but we disagree that the enhancement should have been stayed.
Penal Code section 12022.1, subdivision (b), provides that any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed. Section 12022.1 punishes the defendant for his or her status as a repeat offender while on bail, and does not relate to what the defendant did when committing the current or secondary offense. (People v. Walker (2002) 29 Cal.4th 577, 589.)
The amended information in case No. INF057582 contained three counts and included an on-bail enhancement (Pen. Code, § 12022.1) alleging that defendant was released from custody on bail in case No. INF056380 when he committed the three felonies alleged. After the two cases were consolidated, the counts alleged in case No. INF 057582 became counts 3, 4, and 5 of the consolidated action, arising from the execution of the second search warrant, and thus were secondary offenses. (See People v. Tillotson, supra, 157 Cal.App.4th at p. 543.)
It is true that an enhancement must be stayed where the sentence on the count to which it is added is required to be stayed. (People v. Cole (1985) 165 Cal.App.3d 41, 53.) Authorities dealing with this issue, however, usually deal with enhancements which attach to the term of imprisonment for a specific underlying offense, as opposed to enhancements relating to the offender. In such situations, the procedure for sentencing a person convicted of more than one felony does not contemplate imposing an enhancement separately from the underlying crime. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.)
However, an on-bail enhancement goes to the nature of the offender, not the nature of the offense, so staying the term for count 5 does not necessarily require the on-bail offense to be stayed as well. We therefore direct the trial court to modify the judgment to reflect imposition of the on-bail enhancement independent of any individual count.
DISPOSITION
As modified, the judgment is affirmed.
We concur: Hollenhorst Acting P. J., Richli J.