Opinion
A151123
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. SHARI MARIE STEVENS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. FCR313261, FCR298939)
Defendant Shari Marie Stevens appeals a judgment convicting her of possession of methamphetamine for sale and sentencing her to 13 years in prison. She contends the court violated her right to a fair trial and improperly burdened her right to testify when it ruled that the circumstances of her prior drug-related convictions would be admitted to show her intent to sell if she testified she was possessing the drugs for personal use only. She also argues that the recent amendment of Health and Safety Code section 11370.2 requires that sentence enhancements imposed under that statute be stricken. We find no error with regard to defendant's conviction, but agree that defendant's sentence must be vacated and the matter remanded for resentencing.
All statutory references are to the Health and Safety Code unless otherwise noted.
Factual and Procedural History
Defendant was charged in an amended information with one count of possession of a methamphetamine for sale (§ 11378). The amended information alleged three prior convictions under section 11370.2, subdivision (c), and three prior prison terms under Penal Code section 667.5, subdivision (b).
The following evidence was presented at trial:
On March 10, 2015, a Fairfield police officer stopped defendant's car. During a search of her car, an officer found in defendant's purse nine baggies of methamphetamine and $736. The methamphetamine was stored in eight small Ziploc baggies and in a piece of plastic from a grocery bag or garbage bag. The individual weights of the baggies varied from 0.2 to 3.5 grams, and the aggregate weight was 10.4 grams.
A Vacaville police officer testified about a prior incident in March 2013 in which defendant was suspected of possessing methamphetamine for sale. On that occasion, officers found in defendant's purse a "hide-a-can" with two small Ziploc baggies of methamphetamine in quantities of 1.78 and 2.77 grams and $359. The officers also found another bindle of methamphetamine weighing 1.39 grams, 11 fresh small Ziploc baggies of various kinds, a straw, a spoon, and a digital scale.
An expert opined that in both instances defendant possessed the methamphetamine for sale.
The jury found defendant guilty as charged. Thereafter, the court found the enhancement allegations true. Defendant was sentenced to the midterm of two years for the substantive offense, plus three years each on the section 11370.2, subdivision (c) priors and one year each on two of the prior prison terms under Penal Code section 667.5, subdivision (b). The court also sentenced defendant to a consecutive term of eight months in separate case number FCR298939, a 2013 case in which defendant pled to possession for sale and was placed on probation with imposition of sentence suspended. The court ordered defendant to serve four years of the sentence in county jail or in a drug treatment program and the remainder of the sentence on mandatory supervision.
Although the court found true the three prior prison term allegations as alleged in the amended information, the minute order reflects true findings with respect to only two prior prison terms and, as discussed post, sentence enhancements were imposed for only two priors.
Defendant timely filed a notice of appeal.
Discussion
1. The trial court did not violate defendant's rights to a fair trial.
Before trial, the parties filed competing motions regarding the admissibility of defendant's prior drug-related convictions. Defendant moved to exclude all evidence of her prior convictions, while the prosecutor moved to allow evidence of the facts surrounding defendant's 2013 conviction for possession of methamphetamine for sale to prove intent. At a hearing on the motions, the prosecutor indicated she intended to introduce only the circumstances of the 2013 prior in her case-in-chief, but that if defendant testified, she would consider introducing evidence of defendant's additional convictions for the same offense as impeachment. Ultimately, the court found, and defendant does not challenge, that evidence of the 2013 prior offense was admissible to prove defendant's intent.
The court noted, however, that while the prosecutor would use only the 2013 prior in her case-in-chief, the court would have allowed her to introduce evidence of all three prior convictions because all were probative of intent. The court found that the priors each involved "very, very similar behavior" or "extremely similar conduct" to that at issue in the present case. The court acknowledged that evidence of the other convictions was subject to restriction for undue prejudice under Evidence Code section 352 if offered in the prosecution's case-in-chief, but that if defendant chose to testify, the court would allow the prosecution "to ask questions about the prior sales activity because it shows intent and motive in this case." The court clarified, "if she gets up there and says, 'This has only been possessed for . . . personal use,' they get to examine her on it."
Defendant did not testify. She now contends that in ruling that the details of her prior offenses would be admissible if she testified that she possessed the drugs for personal use, the court violated her right to a fair trial and improperly burdened her right to testify. Defendant does not dispute that the fact of her prior convictions would have been admissible for impeachment had she chosen to testify. She argues, however, that the court erred in ruling that testimony concerning the factual circumstances of her prior offenses would be admitted if she testified because such evidence was not otherwise admissible under Evidence Code section 1101, subdivision (b). Defendant concludes, "Thus, although the 1101(b) evidence could not properly have been admitted in the state's case in chief, the court's ruling effectively permitted the state to 'back door' this evidence without meeting any procedural requirements at all."
The People argue that defendant forfeited this argument by choosing not to testify at trial. (See People v. Ledesma (2006) 39 Cal.4th 641, 731 ["It is well established that the denial of a motion to exclude impeachment evidence is not reviewable on appeal if the defendant subsequently declines to testify."].) Defendant disputes that the forfeiture rule is applicable in this instance. We need not address this issue because, as discussed in text, defendant's underlying argument lacks merit. Nonetheless, we observe that the reasons for which defendant's merits argument fails illuminates the reasons supporting forfeiture. --------
Defendant's argument rests on the unsupported assertion that the evidence was not admissible under Evidence Code sections 1101, subdivision (b) and 352. Defendant suggests that the prosecutor conceded in pre-trial discussions that the circumstances of defendant's additional methamphetamine priors were inadmissible under Evidence Code section 352 because they would be cumulative of the 2013 offense. The relevance of evidence and its significance relative to its potential prejudice can change as the trial progresses. If the defendant does not testify, it may well be prejudicially cumulative to present facts regarding other prior offenses to establish defendant's intent to sell. However, had defendant testified that the drugs were for her personal use, the relevance of the additional evidence would have increased and the court could reasonably conclude that its significance outweighed any potential prejudice.
Contrary to defendant's arguments, the trial court did not inexplicably "reverse[] course" and rule that defendant could be impeached with not just the fact of conviction but the underlying conduct as well. In its tentative ruling the court stated, "I think the fact she has suffered a prior sales conviction is admissible evidence to show intent . . . But the manner and method in which that happens could be a 352 issue. . . . [¶] Quite frankly, if you had evidence of three prior pleas to drug sale[s], I [don't] know that you need to present how she did it every single time in order to get your message across to the jury." When the matter next came up, the court again acknowledged that "[d]epending on the ruling about the priors coming in, you might be in a position to sanitize them. But I think if she chooses to testify, they are on the table." The court indicated, in a somewhat confusing way, that it would be open to sanitizing the evidence if it were admitted for the purpose of impeachment. Shortly thereafter, however, the prosecutor clarified that the prior offenses would be sanitized only if defendant did not testify regarding her intent and that "if she's going to take the stand, the door is open to asking . . . about her prior conduct." The prosecutor asked, "So I just want to make sure that I am not not complying with the court because when I talked to [defense counsel] just out in the hallway, she believed that you sanitized it, that I would not be able to ask her if she took the stand. That is not my understanding." The court clearly and unequivocally clarified that the prosecutor's understanding was correct: "No.·Especially not if she is going to get up. Her credibility is absolutely at issue. And the issue in this case is sales, so I know she would have to — she is going to end up acknowledging she — she has been busted for prior sales; right? [¶] . . . [¶] . . . I am assuming their theory it is possession for personal use. . . . But if she is going to testify, she gets to get questioned about all the prior sales and activities." Defendant cannot complain that she was caught off-guard by the court's ruling.
Finally, the court did not improperly "conflate" the standards for admitting evidence under Evidence Code section 1101 and impeachment evidence. Before the trial court, defense counsel argued, "So seems like what is happening is 1101(b) [is] being conflated with impeachment, and they are separate — they are separate things.· 1101(b) comes in to their case in chief, it could trickle into cross-examination as well, but in terms of those 2004, 2009 convictions, they are not introducing as 1101(b) in their case in chief, doesn't get to come up in cross-examination." The court responded, "Depends on what your client testifies to. If she gets up there and testifies that her address is 222 Smith Street and then she sits down and rests, yeah, it's probably not going to come in. But if she gets up there and says, 'This has only been possessed for sales — not sales, for personal use,' they get to examine her on it." The court also directly addressed defendant's argument that it was allowing the prosecutor to do something on cross-examination that she would not have been able to do in her case-in-chief: "I already said the People can do it in their case in chief. It is not inappropriate or impermissible to do it in cross-examination of a defendant who is going to testify . . . [b]ecause you [are] not limited to impeaching their veracity. You can test them under the underlying facts." There was no error in the court's ruling nor violation of her right to testify and to a fair trial.
2. Defendant's sentence must be vacated and the matter remanded for resentencing.
Defendant received three-sentence enhancements of three years each under section 11370.2 based on her prior violations of section 11378. Under Senate Bill No. 180, which went into effect on January 1, 2018, defendant's prior convictions no longer qualify for section 11370.2 enhancement. (Stats. 2017, ch. 677, § 1.) Under In re Estrada (1965) 63 Cal.2d 740, the amendment to section 11370.2 applies to non-final judgments. Accordingly, the parties agree defendant's three three-year enhancements must be stricken.
Noting the discrepancy in the record regarding the prior prison term enhancements (see fn. 2, ante), the Attorney General argues the matter should be remanded to the trial court for resentencing. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1253 [on remand following reversal of a felony count for which a subordinate term had been imposed, trial court can reconsider its prior sentencing choices, including imposing a higher term for the principal term, so long as the total prison term for all affirmed counts does not exceed original aggregate sentence].) Defendant does not challenge the substance of the People's argument, noting only that this court has the authority to strike the enhancements without remand. (See People v. Zabala (2018) 19 Cal.App.5th 335, 344-345 ["In light of amendments to Health and Safety Code section 11370.2, subdivision (c), effective January 1, 2018, we vacate the three-year enhancement for a prior narcotics conviction under Health and Safety Code section 11370.2, former subdivision(c) . . . [and direct the trial court] "to prepare and transmit to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the modified sentence."].) We agree that remand is appropriate. Because of the inherently integrated nature of a felony sentence, courts have long recognized that "[w]hen a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
Disposition
The judgment is reversed and the matter remanded for resentencing. In all other respects, the judgment is affirmed.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.