Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01410
BUTZ, J.A jury found defendant Timojene Watson guilty of possessing cocaine base and marijuana for sale (Health & Saf. Code, §§ 11351.5, 11359). In a bifurcated proceeding, the trial court found true allegations defendant had two prior convictions for selling cocaine base (§ 11370.2, subd. (a)) and sentenced her to 11 years in state prison, consisting of the upper term of five years for possessing cocaine base for sale, a concurrent two years for possessing marijuana for sale, plus a consecutive three years for each of the two prior convictions. The court also imposed a $2,400 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $2,400 parole revocation fine (Pen. Code, § 1202.45) that is suspended unless parole is revoked, and ordered defendant “to pay the mandatory laboratory fees, the drug program fees, the court security fee, the main jail booking fee, and the main jail classification fee.”
Undesignated statutory references are to the Health and Safety Code.
Defendant appeals, contending the trial court (1) prejudicially erred in instructing the jury that the prior crimes evidence could be used to establish her motive for committing the charged offenses; (2) abused its discretion in “admitting evidence that [she] may have committed welfare fraud”; and (3) “erred in failing to itemize and record the fines and fees in the abstract of judgment.” She also claims that imposition of the upper term violates her Sixth Amendment right to a jury trial, and the abstract of judgment must be corrected to reflect that she received a concurrent middle term of two years (not eight years) for possessing marijuana for sale.
We shall reverse the trial court’s imposition of “the mandatory laboratory fees, the drug program fees, the court security fee, the main jail booking fee, and the main jail classification fee”; remand the matter to the trial court with directions to separately state all fines, fees, and penalties imposed, with the appropriate statutory basis for each; and affirm the judgment in all other respects. We shall further direct the trial court to amend the abstract of judgment to separately state all fines, fees, and penalties imposed, with the appropriate statutory basis for each, and to reflect that defendant was sentenced to a concurrent middle term of two years for possession of marijuana for sale.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offenses
In February 2005, officers with the Sacramento Police Department went to a small, one-bedroom house at 4312 14th Avenue in Sacramento. Defendant answered the door, and one of the officers explained that they had a “legally valid reason to enter.” As officers “cleared” the house, they found Leander Cooks “crouched down on the floor inside the [bedroom] closet.”
Defendant and Cooks were detained in the living room, while officers searched the house. Officers seized over 80 grams of cocaine base, approximately 30 grams of marijuana, and $1,600 from the house, along with various items indicating defendant and Cooks lived there. More particularly, in the bedroom, officers found over $1,000, a plate containing a razor blade and 1.68 grams of cocaine base, a baggie containing 0.32 grams of cocaine, two baggies containing 26.4 grams of marijuana, a 120-gram digital scale, men’s and women’s clothing, defendant’s driver’s license, two pieces of mail addressed to defendant at the 14th Avenue address, a paycheck made payable to Cooks, a Valentine’s Day card signed by Cooks, and a photograph of defendant and Cooks hanging on the wall. In the bedroom closet, officers found: $260 and two baggies containing over 13 grams of cocaine base inside a purse; a baggie containing 5.29 grams of cocaine base on the floor; three baggies containing over 33 grams of cocaine base inside a man’s tennis shoe; a baggie containing 25.1 grams of cocaine base inside a woman’s shoe; and more men’s and women’s clothing. They found more cash in the living room.
While defendant was being detained, she stated numerous times that the money, marijuana, and cocaine belonged to her.
The house was surrounded by a fence. There was a pit bull dog at the house, and a surveillance camera outside the east exterior door that was hooked up to a television in the bedroom, allowing those present in the bedroom to view the area outside the door.
Detective Scott Hyatt, a narcotics investigator for the Sacramento County Sheriff’s Department with extensive experience investigating the possession and sale of controlled substances, including cocaine base and marijuana, testified that a “true, heavy user [of cocaine base will] have no more than a gram because [they] smoke it up too fast.” The most someone would possess for personal use is “About a gram. Maybe a gram and a half.” He had never encountered anyone that possessed 80 grams of cocaine base for personal use. People who sell rock cocaine sometimes “have a scale, additional packaging, some sort of security system, i.e., dogs, fencing, beefed-up security doors, bars in the windows, surveillance cameras, things of that nature.” It appeared that the plate and razor blade found in the bedroom were “being used as a cutting platform to cut the cocaine up.” “That’s all you need” to cut off a piece of rock cocaine. He opined that “[t]he residents of the house who were in the room where the narcotics, money, scale, baggies, [and] the surveillance system were found . . . would be selling narcotics.” He believed the marijuana was possessed for sale based upon the “surveillance system, the scale, [and] the additional baggies.”
B. Prior Crimes Evidence
In November 1994, officers with the Sacramento Police Department searched a house in Sacramento and found $923, 2.2 grams of rock cocaine, four one-gram packages of marijuana, and various documents bearing defendant’s name, including a phone bill, cable bill, a letter from the Sacramento Housing Authority, a Sacramento County Department of Human Assistance voucher, a notice from the County of Sacramento that listed defendant’s total gross earnings as zero, her welfare check, and her driver’s license. They also found a key to the garage on the coffee table in the living room. Inside the garage, officers found 188.16 grams of cocaine base, 43.52 grams of marijuana, “some packaging material, Ziploc baggies, and baggies.”
Defendant was present when the officers arrived at the residence. She said that the cocaine base, marijuana, and cash found inside the house belonged to her and that the items found inside the garage did not. When asked whether she worked, she said, “I work. I am on welfare and SSI.” She also stated that she accumulated the money found inside the house by “saving it.”
DISCUSSION
I
The trial court instructed the jury that if it determined defendant committed the prior offenses, it could, but was not required to, consider the evidence for the limited purpose of deciding whether “defendant acted with the intent to sell in this case, . . . defendant had a motive to commit the offenses alleged in this case, . . . defendant knew of the substance’s nature or character as a controlled substance when . . . she allegedly acted in this case[, or] . . . defendant’s alleged actions were not the result of mistake or accident.”
Defendant contends the trial court erred in “instructing the jury that [her] prior offense was admissible to prove her motive for committing the charged offense,” and that she was prejudiced by the error in that “the jurors would have assumed that the ‘motive’ tying both offenses together was [her] propensity to sell drugs or commit crimes.” Noting that defendant “does not challenge the admissibility of the evidence on the issue of intent, knowledge, or absence of mistake or accident,” the People argue that any error in instructing the jury that it could also consider the evidence on the issue of motive was harmless. We agree with the People.
First, the evidence defendant committed the charged offenses was overwhelming. Officers found roughly 80 grams of cocaine base, 30 grams of marijuana, and a large amount of cash in the house, along with various items indicating defendant lived there. Defendant repeatedly claimed that the drugs and cash belonged to her. According to Detective Hyatt, the amount of cocaine base found in the house was 50 to 80 times the amount possessed by a typical user. Hyatt also testified that drug dealers sometimes have scales and surveillance systems.
Second, the People did not argue that the prior crimes evidence could be used on the issue of motive. Rather, they told the jury that the evidence was relevant to show expertise, intent, knowledge, and lack of accident or mistake.
Third, the trial court instructed the jury not to “conclude from this evidence that . . . defendant has a bad character or is disposed to commit crime. . . . It is not sufficient by itself to prove that . . . defendant is guilty of possession of marijuana or cocaine with the intent to sell.” We presume the jury followed this instruction, and defendant has not rebutted this presumption. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.)
Under these circumstances, “it is not reasonably probable that a result more favorable to defendant would have been reached absent the alleged instructional error.” (People v. San Nicolas (2004) 34 Cal.4th 614, 669, citing People v. Watson (1956) 46 Cal.2d 818, 836–837.)
II
Prior to the introduction of the prior crimes evidence, defendant objected to the admission of three of the documents found during the 1994 search: the assistance voucher; the notice from the County of Sacramento listing defendant’s total gross earnings as zero; and the welfare check. Defendant argued the documents were (1) cumulative because “her ID and other mail with her name and that address” would be admitted, and (2) unfairly prejudicial because they indicated she was receiving government aid. The trial court overruled the objection. It found the documents were “probative of her presence in the residence” and were admissible for that purpose. On appeal, defendant contends the trial court abused its discretion “in overruling [her] objections and permitting the jury to hear evidence that [she] was collecting welfare, and that she may have been doing so while working.” We disagree.
As the trial court found, the documents tended to show defendant lived at the house where large quantities of drugs were found. Although the People intended to introduce other documents that indicated defendant lived at the house, the admission of additional documents was not “pointless and unnecessary” because the more documents, the stronger the inference that defendant lived there. Moreover, any possible prejudice to defendant from the admission of the challenged documents was mitigated by the testimony of Lieutenant Stephen Robert Quinn of the Sacramento Police Department, who was present when the house and garage were searched. He testified, without objection, that when asked if she worked, defendant responded that she worked and was on welfare. Thus, evidence that defendant may have been collecting welfare while working was already before the jury. In addition, the trial court instructed the jury that the documents were offered solely to establish defendant lived at the residence and not “to prove that [defendant is] poor [and], therefore, [also more] likely to commit crimes.” We presume the jury followed this instruction, and defendant has not rebutted this presumption. (People v. Alfaro, supra, 41 Cal.4th at p. 1326.)
To the extent defendant contends she objected to this testimony, she is mistaken. She only objected to the admission of the documents. Accordingly, she is precluded from challenging the admission of Lieutenant Quinn’s testimony concerning her statement that she was working and receiving welfare on appeal. (Evid. Code, § 353; People v. Clark (1992) 3 Cal.4th 41, 125–126 [“In the absence of a timely and specific objection on the ground sought to be urged on appeal, the trial court’s rulings on admissibility of evidence will not be reviewed”].)
Accordingly, the trial court did not abuse its discretion in admitting the challenged documents.
III
At the sentencing hearing, the trial court ordered defendant “to pay the mandatory laboratory fees, the drug program fees, the court security fee, the main jail booking fee, and the main jail classification fee.” It did not specify the amount of the fees to be imposed or the statutory basis for such. Nor did it indicate that it was incorporating the fees listed in the probation report. The abstract of judgment reflects the court imposed a $100 laboratory fee; a $300 drug program fee; a $20 court security fee; a $178.96 main jail booking fee; and a $29.95 main jail classification fee.
Defendant asserts that all fines, fees, and penalties must be stated separately at sentencing, with the statutory basis specified for each, and the abstract of judgment must reflect these matters. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) The People respond that defendant’s “claim that the fees and fines were not itemized by the trial court is not supported in the record” and point to the clerk’s minutes of the sentencing hearing, which reflect that the court adopted the “Terms & Conditions as amended on page 19 & 20, 1-8 of probation report.” There are at least two problems with the People’s argument:
First, the transcript of the sentencing hearing indicates that the court never mentioned, much less adopted, the probation report’s terms and conditions.
Second, even if the court had adopted them, the abstract of judgment does not include the penalty assessments set forth in the probation report. The probation report recommended defendant pay: a $100 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)), with a $100 state penalty fee assessment (Pen. Code, § 1464) and a $70 penalty assessment (Gov. Code, § 76000); a $300 drug program fee (Health & Saf. Code, § 11372.7), with a $300 state penalty fee assessment (Pen. Code, § 1464), and a $210 penalty assessment (Gov. Code, § 76000); a $20 court security fee “per conviction” (Pen. Code, § 1465.8, subd. (a)(1)); a $178.96 main jail booking fee (Gov. Code, § 29550.2); and a $29.95 main jail classification fee (ibid.). The abstract of judgment, however, lists only the laboratory, drug program, court security, main jail booking, and mail jail classification fees; it does not include any of the penalty assessments.
Accordingly, we shall reverse the trial court’s imposition of “the mandatory laboratory fees, the drug program fees, the court security fee, the main jail booking fee, and the main jail classification fee” and remand the matter with directions to separately state all fines, fees, and penalties imposed, with the appropriate statutory basis for each.
IV
The trial court sentenced defendant to the upper term of five years for possessing cocaine base for sale. Defendant argues the imposition of the upper term violates her Sixth Amendment right to a jury trial. We disagree.
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) Such is the case here.
As a preliminary matter, we note that defendant did not forfeit the issue by failing to raise it in the trial court. Defendant was sentenced on March 10, 2006. Before that, on June 20, 2005, our Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Black I was controlling law at the time of defendant’s sentencing. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)
Turning to the merits, in deciding to impose the upper term, the trial court relied on “the large quantity of contraband that was found” and the fact defendant had “served prior prison terms for . . . similar behavior.”
Defendant’s prior prison terms are “based upon . . . defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) A defendant’s constitutional right to a jury trial is not violated by the trial court’s imposition of the upper term sentence where at least one aggravating circumstance was established by means that satisfy the requirements of the Sixth Amendment. (Black II, at p. 816.) Because defendant’s prior prison terms rendered her eligible for the upper term sentence, her “Sixth Amendment right to jury trial was not violated by imposition of the upper term.” (Id. at p. 820.)
V
The trial court sentenced defendant “to the midterm, concurrent” for possessing marijuana for sale. The middle term for that offense is two years. (Health & Saf. Code, § 11359; Pen. Code, § 18.) However, item 1. of the abstract of judgment erroneously reflects defendant was sentenced to the middle term of eight years. Defendant contends, and the People concede, that the abstract must be amended to correct this clerical error. We agree and shall direct the trial court to amend the abstract to reflect that defendant was sentenced to a concurrent middle term of two years for possession of marijuana for sale.
DISPOSITION
The trial court’s sentence imposing “the mandatory laboratory fees, the drug program fees, the court security fee, the main jail booking fee, and the main jail classification fee” is reversed, and the matter is remanded to the trial court with directions to separately state all fines, fees, and penalties imposed, with the appropriate statutory basis for each. In all other respects, the judgment is affirmed.
The trial court is directed to amend the abstract of judgment to separately state all fines, fees, and penalties imposed, with the appropriate statutory basis for each, and to reflect that defendant was sentenced to a concurrent middle term of two years for possession of marijuana for sale; and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P.J., MORRISON, J.