Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR906029
Marchiano, P.J.
Defendant Luther Gene Weathers was convicted by a jury of: transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count I); possession of methamphetamine for sale (§ 11378; count II); and possession of drug paraphernalia (§ 11364, subd. (a); count IV). Defendant was found by the court to have suffered a prior conviction under section 11378 (§ 11370.2, subd. (c)), and to have committed the current offenses while on bail in two other cases (Pen. Code, § 12022.1). Defendant was sentenced to seven years in prison, consisting of the upper term of four years on count I, plus three years for the prior conviction; concurrent sentences were imposed on the other counts and the on-bail enhancements were stricken.
Unless otherwise indicated, all further statutory references are to the Health and Safety Code.
Defendant contends that: (1) the jury was erroneously instructed on the transportation offense; (2) his counsel was incompetent for failing to object to the introduction of incriminating evidence; (3) the prior conviction finding was not supported by substantial evidence; (4) his rights as set forth in Apprendi (Apprendi v. New Jersey (2000) 530 U.S. 466); Blakely (Blakely v. Washington (2004) 542 U.S. 296) and Cunningham (Cunningham v. California (2007) ___ U.S. ____ [127 S.Ct. 856]) were violated by imposition of the upper term sentence; and (5) his concurrent sentences had to be stayed under Penal Code section 654. We agree that the concurrent sentences must be stayed, but conclude that defendant’s other arguments lack merit. We will modify the judgment accordingly, and affirm the judgment as so modified.
I. FACTS
Lake County Deputy Sheriff Edward Bean was driving in his patrol car on the afternoon of August 2, 2005, when he noticed Lance Mossmeyer driving a car in the opposite direction. Bean knew that Mossmeyer’s driver’s license had been suspended, so he made a U-turn to stop him. Mossmeyer initially accelerated, but then slowed down and drifted to the left hand side of the road. As Mossmeyer drifted left, Bean noticed a foot sticking out of the passenger side door, and suspected that the passenger intended to flee. As the car came to a halt, defendant popped out of the passenger door, and ran to and around the back of the car. Bean got out and chased defendant, catching him as he reached the driver’s side in back of the car. During the chase, Bean saw defendant make a “throwing motion”—a “furtive movement as if he was throwing something or getting rid of something”—toward a fire hydrant by the side of the road.
Bean searched the area near the hydrant and found a capsule containing six bindles of methamphetamine; he had previously seen the same kind of capsule at defendant’s home. The bindles had usable amounts of methamphetamine, and would have sold for $10 or $20 each. Bean found a glass pipe and a gram scale in a backpack on the passenger seat of the car, and approximately 21 grams of methamphetamine in a container on the passenger side floor. Defendant had $327 on his person. Bean and Lakeport Police Officer Jason Ferguson, who was assigned to the Lake County Narcotic Task Force, opined that the methamphetamine found at the scene was possessed for sale.
Defendant admitted that the backpack with the pipe and scale was his, but denied possessing the methamphetamine Bean recovered. He denied running from the officer and throwing anything. He said that he used methamphetamine frequently, and used the scale to avoid being cheated when he bought the drug. He had accepted a ride from Mossmeyer, who had previously sold him drugs, and was in the car for only 30 seconds before it was pulled over. He admitted a prior conviction of possession of methamphetamine for sale.
II. DISCUSSION
A. Transportation Instruction
Defendant challenges the standard instruction given to the jury in this case on the transportation element of the transportation offense, which states: “A person transports something if he or she carries or moves it from one location to another, even if the distance is short.” (CALCRIM No. 2300.) Defendant reasons that this instruction improperly converts simple possession offenses into transportation offenses because some movement, however minimal, of contraband is likely to occur in virtually every case. He submits that this improper result occurred here because he was convicted of transporting methamphetamine based solely on his acts of carrying it a few feet after he left the car and throwing it away.
The challenged instruction is consistent with the reported cases, including this court’s decision in People v. Ormiston (2003) 105 Cal.App.4th 676 (Ormiston), and we find no cause to question it here. (See Ormiston, supra, at pp. 681, 684 [defendant who walked with methamphetamine from hotel room to hotel parking lot was properly convicted of illegal transportation; § 11379 prohibits “ ‘any illicit transportation of controlled substances’ to another location, even if the distance is insignificant”]; People v. Emmal (1998) 68 Cal.App.4th 1313, 1315-1318 (Emmal) [defendant who drove 20 feet was properly convicted, rejecting argument that movement was too “minimal” to constitute transportation].)
We need not determine whether defendant’s transportation conviction could be predicated entirely on his actions after leaving the car, because the evidence showed that he possessed the methamphetamine while being driven before the car stopped. Deputy Bean said that the car continued moving for five to 15 seconds, and traveled “the length of a Lake County block,” after he got behind it—a movement between locations that constituted transportation under Ormiston and Emmal. As the prosecutor observed in closing argument, there was “no question” under the evidence “that if the defendant possessed this methamphetamine that he transported it.”
The evidence, at a minimum, established this brief interval of transportation. The jury was not obliged to believe defendant’s claim that he happened to be walking to the house where the car stopped, and had accepted a ride there for a distance of only about a block just before Bean spotted Mossmeyer driving.
Defendant contends that in jury arguments the prosecution elected to base the transportation charge entirely on his possession of the capsule found by the hydrant, rather than the container found in the car, and on his act of throwing the capsule, rather than riding with the contraband in the car. Appellant ventures that “[a]ny implied antecedent transportation [before the capsule was thrown] as well as the other bundle of drugs [the container in the car] [were] irrelevant to the prosecution’s factual theory of the case,” and he requests an “opportunity to file supplemental briefing on whether the unanimity instruction given was sufficient” if an alternative theory is used to justify the transportation verdict.
We do not agree with defendant’s reading of the arguments below and find no need for supplemental briefing on the subject.
The prosecutor argued that defendant possessed both the methamphetamine in the car and the methamphetamine in the capsule. He submitted that the scale in defendant’s backpack was “involved in the business of taking something out of that big bag [in the car] and packaging it up in a little bag [in the capsule] and selling it. That’s the reason that you have a scale.” The defense understood the prosecution was contending that defendant possessed the methamphetamine in the car, as well as in the capsule. The defense tried to pin the blame on Mossmeyer, arguing: “ . . . is he going to hide that dope [the methamphetamine in the car] under his own seat? No. He’s going to be smart. He’s going to hide it somewhere else.”
The prosecutor also argued, contrary to defendant’s claim, that transportation could be found if defendant either had methamphetamine while traveling in the car, or tossed away the capsule, provided the jury unanimously agreed on one of those acts:
“You have to find that the defendant transported a controlled substance. Nothing magical about that term. It simply means moving the methamphetamine from one place to another.
“In moving it from at least the street down here the defendant was talking about in the vehicle to this point [evidently referring to a diagram of the car’s movement], that is moving it from one place to another. That would qualify.
“The officer’s testimony, the defendant taking it out of the car and moving it around the back of the car and giving it a toss, that’s moving it from one place to another. That would qualify as transporting.
“Now, what you have to do, though, in looking at that is that you have to—if some of you decided that one of those things you didn’t agree with and one you did and other people decided on one of the other acts, you can’t split the difference, basically. You have to agree on the same act to return a verdict. You can’t have half of the jury saying, ‘Well, I believe this happened, but not this,’ and the other half going the other way. In fairness to a defendant, you’re talking about a verdict that involves the same conduct that all the jury agrees to.”
If unanimity as to the transportation offense were a serious issue as defendant suggests, then the prosecutor’s argument would have gone a long way toward alleviating any problem associated with it, but there is no prospect that the jury could have disagreed as to which acts were involved. If, as defendant postulates, the jury determined that he discarded the capsule, it would necessarily have also found that he had ridden with the capsule in the car. Accordingly, any error in convicting defendant of transportation for discarding the capsule was harmless under any standard.
B. Incompetence of Counsel
Defendant contends that his counsel was incompetent for failing to object to Deputy Bean’s testimony that he had seen a capsule like the one by the hydrant on a prior occasion in appellant’s residence. Defendant argues that this testimony constituted the improper introduction of an uncharged offense to show that he had a criminal propensity. (Evid. Code, § 1101, subd. (a).) However, there was no testimony linking the previously observed capsule to any crime. The prior observation was highly relevant to the disputed issue of whether defendant or Mossmeyer possessed the capsule, and no valid grounds for excluding the evidence have been identified. Since it is not reasonably probable that the objection would have been sustained, counsel cannot be deemed incompetent for failing to make it. (People v. Fosselman (1983) 33 Cal.3d 572, 584.)
C. Prior Conviction
Defendant contends that there was insufficient evidence to support the court’s finding that he had been convicted of violating section 11378 in Lake County Superior Court case No. CR2662 in June of 1989. The evidence proffered to prove the conviction, Exhibit 17 below, contained no relevant document other than the information filed in case No. CR2662 in February 1989 charging defendant with a violation of section 11378. However, defendant acknowledged in his trial testimony that he had pleaded guilty to violating section 11378 in 1989 or 1990, and that admission, together with the information in Exhibit 17, provided substantial evidence supporting a reasonable inference that he had suffered the prior conviction as alleged. (See People v. Harris (1992) 8 Cal.App.4th 104, 107-108 [defendant’s admissions in guilt phase of trial may be used in subsequent bifurcated trial of prior conviction].)
The court said it “also” took judicial notice of “the contents of the clerk’s file in case [No. CR]2662,” but it is unclear whether the court was referring to documents beyond those in Exhibit 17, and the appellate record contains no documentary evidence introduced at trial concerning the prior conviction other than Exhibit 17.
D. Upper Term Sentence
Defendant contends that the court violated his Sixth Amendment rights under Apprendi, Blakely, and Cunningham by imposing the upper term sentence on the transportation offense based on facts he did not admit or were not found by a jury to be true beyond a reasonable doubt. We disagree. The sentencing transcript reads in relevant part as follows:
“The Court will find that there were no circumstances in mitigation in the case. There are circumstances in aggravation, that is that the defendant’s prior convictions as an adult are numerous; second, he’s served three prior prison terms; and his prior performance on probation has been unsatisfactory, probation and parole.
“The Court finds that the circumstances in aggravation outweigh the circumstances in mitigation both in number and in weight, simply his prior convictions are sufficient to justify the upper term in the Court’s mind.”
All of the factors cited by the court as grounds for the upper term sentence were, in our view, recidivism factors that need not be proven to a jury to justify imposition of the upper term. (See People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 (Thomas) [discussing Almendarez-Torres (Almendarez-Torres v. United States (1998) 523 U.S. 224)]; People v. McGee (2006) 38 Cal.4th 682, 700-701 [citing Thomas with approval].) Even if the court could not properly use the factors of defendant’s prior prison terms and his unsatisfactory performance on probation, the errors were harmless beyond a reasonable doubt given the court’s statement that it would have imposed the upper term based solely on defendant’s numerous convictions, i.e., the “fact of . . . prior conviction[s]” within the meaning of Apprendi, et al. (Apprendi, supra, 530 U.S. at pp. 489-490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, ___ U.S. at p. ____ [127 S.Ct at p. 860]; see Washington v. Recuenco (2006) ___ U.S. ____ [126 S.Ct. 2546]; Chapman v. California (1967) 386 U.S. 18, 24; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)
E. Concurrent Sentences
The court imposed concurrent sentences on counts II and IV because it found that “the crimes and their objectives were predominately dependent upon one another . . . and the crimes were committed at the same time and place as to indicate a single period of aberrant behavior . . . .” Defendant contends, and the People concede, that his concurrent sentences must be stayed under Penal Code section 654 because all of his convictions resulted from an indivisible transaction. (See People v. Hester (2000) 22 Cal.4th 290, 294-295.)
III. DISPOSITION
The judgment is modified to stay the sentence on counts II and IV pursuant to Penal Code section 654. As so modified, the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modifications to the Department of Corrections.
We concur: Stein, J., Margulies, J.