Opinion
D041445.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. KENNETH DEWAYNE SIMMONS, Defendant and Appellant.
A jury convicted Kenneth Dewayne Simmons of selling cocaine base (Health & Saf. Code, § 11352) (count 1) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5) (count 2). In a bifurcated proceeding, Simmons admitted he had a prior drug conviction (Health & Saf. Code, § 1370.2, subd. (a)), a prior drug conviction making him ineligible for probation (Pen. Code, § 1203.07, subds. (a)(11), (b)(6)) and a prior prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced Simmons to prison for the middle term of four years on count 1, with a consecutive three-year term for the drug enhancement. The court also imposed a concurrent sentence of four years with a three-year enhancement on count 2, and struck Simmonss prison prior.
Simmons appeals, contending: (1) the court abused its discretion by denying his request to be evaluated for commitment to the California Rehabilitation Center (CRC); (2) he could not be convicted of both possessing cocaine base for sale and selling cocaine base; and (3) the court failed to properly admonish him and obtain the requisite waivers before he admitted the prior convictions. We conclude Simmons was improperly sentenced on both counts 1 and 2 under Penal Code section 654, and accordingly modify the judgment to stay his sentence on count 2 and its related enhancement. In all other respects, we affirm the judgment.
FACTS
On June 6, 2002, undercover police officers were conducting a drug buy in downtown San Diego. Detective ODonnell approached a man, later identified as Darryl Smith, and said he was looking for $20 worth of rock cocaine. Smith took the $20 from ODonnell and brought him to two men, one of whom was later identified as Simmons. Smith gave the $20 to Simmons, who handed him a piece of rock cocaine. Smith was immediately arrested but Simmons fled. Following a chase, Simmons was caught by other officers and identified by ODonnell as the person involved in the cocaine base sale. The officers searched Simmons and found $238 in cash.
DISCUSSION
I
Simmons contends the court abused its discretion by denying his request for CRC evaluation under Welfare and Institutions Code section 3051 and by not stating reasons for its denial.
Under Welfare and Institutions Code section 3051, the court must determine whether the defendant may be addicted or is in imminent danger of becoming addicted to narcotics and whether, in the courts opinion, the defendants record indicates such a pattern of criminality that he does not constitute a fit subject for commitment. The statute explicitly vests discretion in the trial court to determine whether evaluation for commitment to a drug rehabilitation facility is appropriate. We review the courts decision for abuse of discretion. (People v. McGinnis (2001) 87 Cal.App.4th 592, 595; People v. Cruz (1990) 217 Cal.App.3d 413, 421.)
Preliminarily, we note Simmons waived the issue by not requesting the court state reasons for denying his request for CRC evaluation or otherwise objecting to the courts silence on the applicability of Welfare and Institutions Code section 3051. (People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about manner in which trial court exercises sentencing discretion and articulates supporting reasons cannot be raised for first time on appeal]; see also People v. Planavsky (1995) 40 Cal.App.4th 1300, 1311, 1312 [defendant, who did not request CRC evaluation, waived error of courts failure to have him evaluated].) If Simmons was concerned that the court did not make an assessment regarding his fitness for CRC evaluation, he could have brought it to the courts attention and had it resolved.
In any event, the court properly declined to refer Simmons for CRC evaluation. Simmons was not eligible for CRC referral because he received an aggregate sentence of seven years. (Welf. & Inst. Code, § 3052 [evaluation for commitment to CRC does not apply to persons sentenced to more than six years in prison].) Further, Simmons did not qualify for CRC referral because of his pattern of criminality, including his poor performance on probation. In denying a request for CRC referral, the court may rely on information in the probation report and "`. . . may consider, in addition to a defendants prior convictions, such matters as his prior performance on probation or parole, and the nature and seriousness of the current offense. [Citation.]" (People v. Masters (2002) 96 Cal.App.4th 700, 704; see also People v. Flower (1976) 62 Cal.App.3d 904, 912.) The court here considered and specifically referred to the probation report that chronicled Simmonss criminal history, including juvenile adjudications for robbery, battery and receiving stolen property and adult convictions for selling cocaine base and grand theft. Simmons violated the terms of his probation, served a prison term and was on parole at the time he committed the present offenses. The record shows Simmonss unwillingness to comply with the law and his inability to change his pattern of criminal behavior despite being given numerous opportunities to do so. (People v. Masters, supra, 96 Cal.App.4th at p. 705.) Thus, the court properly exercised its discretion by denying a CRC referral.
II
Simmons contends his conviction for possessing cocaine base with intent to sell must be reversed as a lesser included offense of selling cocaine base. Alternatively, he contends he could not be sentenced for both crimes.
Multiple convictions cannot be based on necessarily included offenses. (People v. Pearson (1986) 42 Cal.3d 351, 355.) An offense is necessarily included in another if reference to its elements shows it is necessarily committed when the greater offense is committed. (Ibid.) Thus, the test is whether, without regard to the facts of a particular case, the greater offense can be committed without the lesser offense also being committed. (People v. Thomas (1996) 42 Cal.App.4th 798, 804.) Because it is possible to sell narcotics without possessing them, the crime of possessing narcotics with intent to sell is not a lesser included offense of selling narcotics. (Ibid.; People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524; People v. Watterson (1991) 234 Cal.App.3d 942, 947.) Simmons was properly convicted of both possessing cocaine with intent to sell and selling cocaine.
The People concede Simmons was improperly sentenced on both counts and we agree. Although Penal Code section 654 permits multiple convictions, it prohibits multiple punishment. (In re Adams (1975) 14 Cal.3d 629, 636; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) The statutes proscription applies to both concurrent and consecutive sentences because even concurrent sentences may be disadvantageous to a defendant when fixing his term and parole date. (In re Adams, supra, 14 Cal.3d at p. 636.)
Here, the court improperly sentenced Simmons to the same four-year term with a consecutive three-year enhancement on counts 1 and 2. Both counts derived from Simmons selling cocaine base to an undercover officer. Because Simmons could not be punished for both possessing and selling cocaine base, his concurrent four-year sentence and three-year enhancement on count 2 must be stayed under Penal Code section 654, subdivision (a).
III
Simmons contends the court failed to properly admonish him and obtain the requisite waivers before he admitted the prior conviction allegations. He asserts his admissions were not voluntary and intelligent because the court did not advise him of his right to a jury trial or the penal consequences of admitting the allegations.
For an admission of prior convictions to be voluntary and intelligent, the defendant must first be told of the constitutional rights waived and the sentencing and parole consequences of the admission. (In re Yurko (1974) 10 Cal.3d 857, 863-864.) In taking a proper waiver, the court need not specifically articulate every right waived. Instead, "[t]he record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1178.)
Here, Simmons, after conferring with counsel, decided to waive his right to a jury trial on his prior convictions. The court advised Simmons he would be waiving his right to a trial by jury, his right to present evidence, his right to testify, his right to a speedy and public trial, his right to call witnesses and his right to counsel. Simmons said he understood his rights and waived them. He also said he had no questions regarding the waiver, even though the court informed him the prior convictions would result in greater punishment. Simmons waived his right to a jury trial.
The next day, following the verdict, Simmons indicated he wanted to admit the prior convictions. Before accepting the admission, the court confirmed Simmons had had an opportunity to discuss the matter with his attorney. In response to the courts questions, Simmons stated counsel had answered all his questions and he had no questions for the court. Simmons admitted each of the two prior convictions. The prosecutor then clarified the specific consequences of each admission and the court confirmed Simmons understood the penal consequences and had no questions.
Although the court did not reiterate each of the rights Simmons waived when he admitted the prior convictions, the record affirmatively shows Simmons was aware of those rights after he heard them recited a day earlier. Simmons and his counsel had ample opportunity to discuss and clarify the rights being waived and Simmons consistently stated he had no questions. Simmons also stated he understood the consequences of his admissions, specifically an increased sentence, after hearing the prosecutor recite the enhancements attached to them. Regardless of whether the court gave an explicit admonition, Simmons clearly understood his rights and the consequences of his waiver and admission, and expressed his intention to admit the prior convictions. (See People v. Moore (1992) 8 Cal.App.4th 411, 422; compare People v. Johnson (1993) 15 Cal.App.4th 169, 177 [court recited prior convictions with no advisements whatsoever and accepted admission despite defendants obvious confusion].) Under the totality of the circumstances, Simmons voluntarily and intelligently waived his constitutional rights and unequivocally admitted the prior convictions. (People v. Howard, supra, 1 Cal.4th at p. 1180.)
DISPOSITION
The judgment is modified to stay execution of sentence on count 2 and its related enhancement. In all other respects the judgment is affirmed. The superior court is directed to amend the abstract of judgment and forward a copy to the Department of Corrections.
WE CONCUR: HUFFMAN, J. and McINTYRE, J.