Opinion
D073457
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA JACKSON et al., Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Jackson. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Shivers. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1401268) APPEAL from a judgment of the Superior Court of Riverside, David Gunn, Judge. Affirmed in part; reversed in part; remanded for resentencing. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Jackson. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Shivers. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
The district attorney by amended information charged Joshua Jackson and Christopher Shivers with possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 2), and street terrorism (Pen. Code, § 186.22, subd. (a), count 3), and alleged that the defendants committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The jury found Shivers guilty of count 1, Jackson guilty of count 2, and both defendants not guilty of the remaining counts. It also made a not true finding on the criminal gang enhancement allegations.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, Shivers asserts that the prosecution failed to elicit substantial evidence during its case-in-chief to prove that a substance found at his home was cocaine base, as opposed to another form of cocaine, and that the trial court therefore should have acquitted Shivers of count 1 when the prosecution rested its case. Next, Shivers argues that the trial court erred by allowing an expert witness to opine that Shivers intended to sell cocaine base, rather than providing testimony about what a hypothetical individual under similar circumstances might have intended. Shivers also claims that, to the extent his trial counsel did not preserve either or both of these issues for appeal, his trial counsel was ineffective. Finally, Shivers argues that a recent change in law requires us to strike a sentencing enhancement the trial court imposed under Health and Safety Code section 11370, subdivision (a) based on Shivers's prior cannabis-related conviction.
Jackson's appointed appellate counsel presents no argument for reversal and asks this court to review the record for error in accordance with the procedures set forth in People v. Wende (1979) 25 Cal.3d 436, 441-443 (Wende) and Anders v. California (1967) 386 U.S. 738, 744 (Anders). Additionally, Jackson filed a supplemental brief asking that we reduce one of his prior felony convictions to a misdemeanor and strike a one-year prison prior enhancement the trial court imposed on his sentence (§ 667.5, subd. (b)). He also contends that the trial court erred when it selected the upper base term for his sentence.
For the reasons below, we find the recent statutory amendments to Health and Safety Code section 11370, subdivision (a) require us to remand Shivers's sentence with directions to the trial court to strike Shivers's three-year sentencing enhancement and resentence him. Otherwise, we find no error and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution's Case-in-chief
In 2014, Deputy Brian Pentel of the Riverside Sheriff's Department conducted a narcotics surveillance operation at Shivers's residence. During the operation, Deputy Pentel observed numerous individuals walk up to Shivers's home, speak to someone through a partially-opened front door, and depart after 30 to 45 seconds. According to Deputy Pentel, such conduct was consistent "with hand-to-hand drug transactions being conducted at the front door." The police pulled over a vehicle of one of the individuals who had visited Shivers's residence and found 0.4 grams of methamphetamine in the vehicle. Based on this evidence, the police obtained a warrant to search Shivers's residence.
Deputy Pentel and his team arrived at Shivers's home to execute the search warrant and, as they approached, heard an individual who sounded like Shivers yell "shit," as well as two or three persons running inside the house. The police entered the home, discovered the defendants inside a bathroom, and observed the toilet bowl refilling with water, indicating that it had been flushed. The police found a "plastic bindle containing a white rock-like substance" on the floor that, according to Deputy Pentel, weighed 1.5 grams and "tested positive for cocaine." Deputy Pentel testified the substance found at Shivers's residence was "crack cocaine, cocaine base," and "cocaine base" is "also referred to as crack or rock cocaine."
Deputy Pentel believed the size of the bindle was indicative of sales because he had never encountered a user who "had more than a quarter gram of crack on them or cocaine base." Inside Shivers's home, police also located a digital scale and surveillance cameras. Additionally, Shivers's wallet contained $1,040 in cash and Jackson's cell phones had text messages on them that appeared to be related to narcotics sales. Based on this evidence, Deputy Pentel "believe[d] that Mr. Shivers and Mr. Jackson were acting in concert to sell narcotics."
The police arrested the defendants and placed them in a police car with an active recording device. In a recorded statement, Jackson asked Shivers, "You flushed those stones down?" This statement, in addition to the other evidence obtained at the scene, led Deputy Pentel to believe that the defendants sold "cocaine base." As Deputy Pentel explained, "asking if you got the stones down, flushed the stones, would be synonymous with rock or crack cocaine." Furthermore, Shivers—while he was in the police car—referred to the rock-like substance that the officers found in his bathroom as his "work."
During the search of Shivers's residence, Shivers's family members arrived and were observed using their cell phones. Fearing that these family members were contacting other individuals to destroy evidence, the police sent officers to "freeze" Jackson's residence and preserve evidence while they obtained a search warrant. Later that day, the police obtained a search warrant for Jackson's home, searched the home, and discovered a bag containing 194 grams of a substance that tested positive for methamphetamine. According to Deputy Pentel, the quantity of methamphetamine—which amounted to nearly 1,100 uses—was indicative of sales.
Prior to trial, Jackson moved to suppress the evidence discovered at his residence, arguing that the "freezing" of his residence was unreasonable under the Fourth and Fourteenth Amendments to the U.S. Constitution. The trial court denied Jackson's motion to suppress.
At the close of the prosecution's case, Jackson's trial counsel moved for acquittal (§ 1118.1) as to count 1 (possession of cocaine base for sale) and certain enhancement allegations. Shivers's trial counsel moved for acquittal as to count 2 (possession of methamphetamine for sale). The trial court denied both motions.
II. Jackson's Defense
Shivers did not present a defense.
Jackson testified that he earned his living as a mechanic and received support checks from the Department of Child Support Services. However, Jackson testified that this income was insufficient to make ends meet, so he sold drugs. Jackson claimed he "was good at selling the drugs" and he took "full responsibility -- [¶] . . . [¶] -- for the drugs that [were] at [his] house."
Although he took "full responsibility" for the methamphetamine at his home, Jackson testified that he did not know there were drugs in his friend Shivers's home. According to Jackson, he was urinating in Shivers's bathroom when the police arrived, at which point Shivers unexpectedly entered the bathroom in an apparent attempt to dispose of drugs. Jackson stated that Shivers was unable to dispose of anything down the toilet, however, because Jackson had flushed the toilet immediately before Shivers entered the bathroom and the toilet bowl was refilling.
At the close of Jackson's defense, the parties stipulated that the substances found at the defendants' residences were submitted to the Department of Justice for testing, which revealed that the substance from Shivers's home was 1.338 grams of cocaine base and the substance from Jackson's home was 188.209 grams of methamphetamine.
III. Procedural History
The jury found Shivers guilty of possession of cocaine base for sale and Jackson guilty of possession of methamphetamine for sale. It found the defendants not guilty of all remaining counts and found that neither defendant committed a crime to benefit a criminal street gang under section 186.22, subdivision (b).
The defendants waived their rights to a jury trial on their prior convictions and admitted all prior felony convictions alleged in the amended information, specifically: (1) for Shivers—transportation or sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and possession of a firearm by a felon (former § 12021, subd. (a)); and (2) for Jackson—possession of a controlled substance (Health & Saf. Code, § 11350), possession of cannabis for sale (Health & Saf. Code, § 11359), petty theft with a prior (§ 666), and street terrorism (§ 186.22, subd. (a)).
The trial court sentenced Shivers to an aggregate term of seven years, calculated as follows: the low term of two years for possession of cocaine base for sale, doubled due to the prior "strike" for possession of a firearm (§ 667, subd. (e)(1)), plus a three-year enhancement based on the prior conviction for transportation or sale of a controlled substance (Health & Saf. Code, § 11370.2, subd. (a)). It sentenced Jackson to an aggregate term of seven years, computed as follows: the upper term of three years for possession of methamphetamine for sale, doubled due to the prior "strike" for street terrorism (§ 667, subd. (e)(1)), plus a one-year prison prior enhancement for the prior conviction for possession of cannabis for sale (§ 667.5, subd. (b)). The trial court struck or stayed punishment for all other prior convictions.
DISCUSSION
I. Christopher Shivers
A. Acquittal Under Section 1118 .1
As noted, at the close of the prosecution's case-in-chief, Shivers moved for acquittal as to count 2 (possession of methamphetamine for sale), not count 1 (possession of cocaine base for sale). Nevertheless, on appeal, Shivers contends that the trial court should have acquitted him of count 1 because the prosecution's evidence established only that the substance found at his residence was cocaine, not cocaine base. Shivers further contends that this argument is preserved for appeal because Jackson, his codefendant, moved for acquittal as to count 1. For the following reasons, we disagree.
i. Legal Standards
Section 1118.1 states in pertinent part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." " ' "The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' " [Citation.]' " (People v. Maciel (2013) 57 Cal.4th 482, 522.) " 'Where the section 1118.1 motion is made at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point.' " (People v. Cole (2004) 33 Cal.4th 1158, 1213 (Cole).) The question whether substantial evidence exists as to each element of the charged offense is a question of law, subject to our independent review. (Ibid.)
A defendant need not articulate the grounds on which his or her acquittal motion is based. (Cole, supra, 33 Cal.4th at p. 1213; see People v. Belton (1979) 23 Cal.3d 516, 521 [acquittal motion proper where defense counsel stated he did not think there was sufficient evidence to convict defendant].) However, where a defendant directs his or her acquittal motion only as to specific counts or enhancements, the trial court may limit its attention to the evidence bearing on the counts or enhancements specified in the motion, and need not test every charge and allegation for sufficient evidentiary support. (People v. Ceja (1988) 205 Cal.App.3d 1296, 1303-1304 (Ceja).)
ii. Application to Shivers
As an initial matter, we find Shivers forfeited his argument that the trial court erred by not acquitting him of count 1. As this court stated in People v. Smith (1998) 64 Cal.App.4th 1458, 1469, "a defendant . . . who does not move for acquittal pursuant to section 1118.1 at the close of the prosecution's [case] waives any claim that the evidence was at that point insufficient." This principle is "in keeping with the rule that to encourage economy and fairness, motions and objections are waived if not brought in a timely manner." (Id. at p. 1467.) This forfeiture rule is directly on point. Shivers did not seek acquittal as to count 1 at the close of the prosecution's case-in-chief. Furthermore, the fact that Shivers sought acquittal as to another count does not allow him to raise an unrelated acquittal argument on appeal. (Ceja, supra, 205 Cal.App.3d at pp. 1303-1304.)
Shivers acknowledges our decision in Smith and its recitation of the general forfeiture rule, yet argues that this case is "different from the usual case" because his codefendant, Jackson, sought acquittal as to count 1. However, a defendant's failure to join in the objection or motion of a codefendant generally " 'constitutes a waiver of the issue on appeal.' " (People v. Wilson (2008) 44 Cal.4th 758, 793 (Wilson); see People v. Cooper (1970) 7 Cal.App.3d 200, 205 ["[D]efendant cannot take advantage of objections made by a codefendant in the absence of a stipulation or understanding to that effect."].) Because Shivers offers us no reason to depart from this rule, we decline to do so.
Even if Shivers's argument were preserved, we would find that substantial evidence supported a conviction for possession of cocaine base at the close of the prosecution's case-in-chief. Shivers argues that the evidence elicited during the prosecution's case-in-chief established, at most, that he possessed cocaine, not cocaine base. Although Shivers later stipulated that the substance at issue was cocaine base, he did not enter that stipulation until after the close of the prosecution's case-in-chief, i.e., after the trial court considered the defendants' acquittal motions.
Cocaine base (which can take the form of "crack" or "rock" cocaine) has a different chemical composition and enters the body in a different way than powder cocaine (cocaine hydrochloride). (DePierre v. United States (2011) 564 U.S. 70, 73-74.)
In support of his argument, Shivers relies on People v. Adams (1990) 220 Cal.App.3d 680. In Adams, the arresting officer testified that he found six "rocks" of cocaine on the defendant, a criminalist testified that these substances contained "cocaine," and a jury convicted the defendant of possession of cocaine base. (Id. at pp. 683-684.) The Fifth District Court of Appeal reversed. (Id. at pp. 687-688.) As the court explained, the officer was not qualified as an expert in the identification of cocaine or cocaine base; rather, he served as an expert in the possession of cocaine for sale. (Id. at p. 687.) The evidence in Adams also did not establish that the appearance of a substance containing cocaine was a sufficient basis by which to identify "cocaine base." (Id. at pp. 687-688.) Therefore, the court found insufficient evidence to sustain a conviction. (Ibid.)
Just one year after deciding Adams, however, the Fifth District issued People v. Bailey (1991) 1 Cal.App.4th 459. In Bailey, the court affirmed a conviction for possession of cocaine base for sale, where the arresting officer "had taken narcotics classes," found the defendant carrying "two packages of 'rock cocaine,' " and testified that " '[r]ock cocaine is . . . cocaine base.' " (Id. at p. 462.) Because the officer testified that the defendant possessed rock cocaine and "expressly showed [that] rock cocaine was cocaine base"—evidence absent in Adams—the Bailey court found that substantial evidence supported the defendant's conviction. (Id. at pp. 463, 465.)
The present case is analogous to Bailey and distinguishable from Adams. Like the arresting officer in Bailey, and unlike the arresting officer in Adams, Deputy Pentel received specialized training to recognize controlled substances, including cocaine. During this training, Deputy Pentel "made rock cocaine" to gain expertise on "[w]hat it looks" and smells like. Furthermore, Deputy Pentel—like the arresting officer in Bailey—expressly equated rock and crack cocaine with cocaine base during his testimony, stating that "cocaine base" is "referred to as crack or rock cocaine." Deputy Pentel also testified that the "white rock-like substance" found at Shivers's residence was "crack cocaine, cocaine base." On this basis, we find substantial evidence supported a finding that Shivers possessed cocaine base.
We also reject Shivers's argument that his trial counsel's decision not to seek acquittal for count 1 deprived him of effective assistance of counsel under the U.S. and California Constitutions. "Counsel is not ineffective for failing to make frivolous or futile motions." (People v. Thompson (2010) 49 Cal.4th 79, 122; see In re Lower (1979) 100 Cal.App.3d 144, 149, fn. 3 ["there is no obligation on the part of any attorney to embark on a program of fruitless, time-consuming, nonproductive motions"].) Because substantial evidence supported Shivers's conviction, his counsel's decision to refrain from filing a meritless acquittal motion was not unreasonable, did not prejudice Shivers, and did not deprive Shivers of the effective assistance of counsel.
B. Admission of Expert Witness Testimony
Shivers also contends that the trial court erred when it permitted the prosecution's drug expert, Deputy Pentel, to testify that he believed the defendants possessed cocaine base for sales purposes, rather than testifying about hypothetical individuals in similar circumstances. In Shivers's view, Deputy Pentel's testimony improperly conveyed that the defendants were "guilty" of the charged crime. We are not persuaded.
i. Legal Standards
" 'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.]' " (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang).) However, " ' "[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.)' " We review rulings on the admissibility of expert testimony for abuse of discretion. (People v. Jo (2017) 15 Cal.App.5th 1128, 1176.)
ii. Application to Shivers
For the first time in this case, Shivers contends the trial court erred by permitting the prosecution to question Deputy Pentel about his belief that the defendants intended to sell the cocaine base found at Shivers's residence. Jackson's trial counsel—not Shivers's trial counsel—asserted a general objection to the testimony at issue. However, Jackson's objection does not preserve the argument for Shivers for two independent reasons. First, Shivers did not join Jackson's objection. (Wilson, supra, 44 Cal.4th at p. 793). Second, Jackson's objection was not specific. (People v. Jackson (2016) 1 Cal.5th 269, 366 [" ' "[A] defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.' "].) For either reason, or both, Shivers's argument is forfeited.
Shivers contends that it would have been futile for him to file an objection or join Jackson's objection because the trial court overruled Jackson's objection. However, an order overruling a codefendant's objection does not necessarily establish futility. (Wilson, supra, 44 Cal.4th at p. 793.) Moreover, Jackson's objection was general and the trial court did not articulate its basis for overruling the objection. Given these facts, it is conceivable that the trial court overruled Jackson's inadequate objection for lack of specificity (People v. de Soto (1997) 54 Cal.App.4th 1, 9), and that a proper objection from Shivers with adequate specificity would not necessarily have been futile.
On a related note, we reject Shivers's claim that his trial counsel had "no opportunity to explain the legal basis" for Jackson's general objection to Deputy Pentel's testimony. The record does not show that trial counsel tried to explain the basis for the objection, let alone that the trial court precluded counsel from doing so.
Even if Shivers had not forfeited his argument, the trial court did not abuse its discretion when it allowed Deputy Pentel's testimony. "In cases involving possession of [unlawful narcotics], it is settled that an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale based upon matters such as quantity, packaging, and the normal use of an individual." (People v. Hunt (1971) 4 Cal.3d 231, 237 (Hunt).) Thus, numerous courts have upheld convictions in cases in which officers serving as expert witnesses have testified that the defendants possessed narcotics for sales purposes. (See, e.g., People v. Harris (2000) 83 Cal.App.4th 371, 373-375 [evidence supported conviction where officer "opined that [defendant] possessed . . . marijuana and methamphetamine for sale"]; People v. Parra (1999) 70 Cal.App.4th 222, 225-227 [affirming conviction where officer testified that defendants possessed cocaine with intent to sell, based on factors such as the packaging, amount, and concealed nature of the cocaine]; People v. Carter (1997) 55 Cal.App.4th 1376, 1378 [trial court properly admitted expert testimony that defendant possessed rock cocaine for purposes of sale].)
Notwithstanding this settled rule, Shivers contends that Deputy Pentel's testimony was inadmissible because it purportedly suggested to the jury that the defendants were "guilty" of the charged crime. Although we agree expert " ' "opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact," ' " (Vang, supra, 52 Cal.4th at p. 1048), that rule is inapplicable here. Contrary to Shivers's assertion, Deputy Pentel did not testify about the defendants' guilt or innocence. Instead, he opined on only one of several elements—intent to sell—that the prosecution was required to prove to sustain a conviction for possession of cocaine base with the intent to sell. (See People v. Valdez (1997) 58 Cal.App.4th 494, 509 [expert opinion is "not tantamount to an opinion of guilt" if there are "other elements to the [charge] that ha[ve] to be proved"].)
A person is guilty of possession of cocaine base for sale if he or she (1) exercised control over cocaine base; (2) had knowledge of its presence and knowledge of its nature as a controlled substance; (3) the substance was in an amount sufficient to be used for sale as a controlled substance; and (4) he or she possessed the controlled substance with the specific intent to sell it. (See In re Christopher B. (1990) 219 Cal.App.3d 455, 466.)
Shivers also cites People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), disapproved on other grounds in Vang, supra, 52 Cal.4th 1038, 1048-1049, for the proposition that an expert witness may not provide testimony about a specific defendant's knowledge or intent. However, "Killebrew does not generally prohibit such testimony; rather, the [Killebrew] court concluded that in view of the facts and circumstances of that case, the expert's opinion about the defendant's subjective knowledge and intent was inadmissible." (People v. Roberts (2010) 184 Cal.App.4th 1149, 1194; cf. Vang, supra, 52 Cal.4th at p. 1048, fn. 4 [noting in dictum that "in some circumstances, expert testimony regarding the specific defendants might be proper"].)
" 'Even if properly characterized as dictum, statements of the Supreme Court should be considered persuasive. [Citation.]' " (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.)
In Killebrew, a jury convicted the defendant of conspiring to possess a handgun as a participant in a criminal street gang. (Killebrew, supra, 103 Cal.App.4th at p. 647.) During trial, an officer testified as a gang expert and stated that "when one gang member in a car possesses a gun, every other member in the car knows of the gun and will constructively possess the gun." (Id. at p. 652.) The officer's testimony "was the only evidence offered by the People to establish the elements of the crime." (Id. at p. 658.) Under these circumstances, the court found that the officer's testimony—based entirely on his review of records and photographs—did nothing more than inform the jury how the expert "believed the case should be decided." (Ibid.)
By contrast, here, Deputy Pentel testified based on his personal knowledge and extensive observations, including his own surveillance of individuals coming and going from Shivers's residence and his past dealings with the defendants. Deputy Pentel also based his testimony on other evidence he personally obtained from the defendants and their homes, including a large quantity of cocaine base, text messages from Jackson's cell phones, and a large amount of cash found in Shivers's wallet. Under these circumstances, we conclude the trial court did not abuse its discretion in allowing Deputy Pentel's testimony. (See Hunt, supra, 4 Cal.3d at p. 237.)
Accordingly, we also reject Shivers's claim that his trial counsel was ineffective because his counsel did not object to Deputy Pentel's testimony. (People v. Jones (1998) 17 Cal.4th 279, 309 ["We reject defendant's reply that counsel was ineffective for failing to object, for . . . an objection would have been meritless."]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1170 ["Failure to make meritless objections cannot be the basis of an ineffective assistance of counsel claim."].)
Similarly, we find no merit in Shivers's argument that the admission of Deputy Pentel's testimony violated Shivers's constitutional right to due process. Ordinarily, the " 'erroneous admission of evidence does not offend due process unless it is so prejudicial as to render the proceeding fundamentally unfair.' " (People v. Covarrubias (2011) 202 Cal.App.4th 1, 20.) " ' "The dispositive issue is . . . whether the trial court committed an error which rendered the trial 'so "arbitrary and fundamentally unfair" that it violates federal due process.' [Citations.]" [Citation.]' " (Ibid.)
Shivers does not satisfy this high threshold. Here, the prosecution elicited substantial evidence of Shivers's possession of cocaine base with intent to sell, separate and apart from the expert testimony that Shivers challenges on appeal. Such evidence includes, for example, a bindle containing a large quantity of cocaine base, an electronic scale, surveillance cameras, Shivers's statement that cocaine base was his "work," and testimony that numerous individuals arrived at Shivers's residence for 30-to-45-second visits. On these facts, we find there was no deprivation of due process.
C. Sentencing Enhancement Under Health and Safety Code Section 11370 .2
Health and Safety Code section 11370.2 establishes sentencing enhancements for certain drug-related crimes if a defendant has a prior conviction for specified drug-related offenses. At the time of Shivers's sentencing, that statute mandated the imposition of a three-year enhancement on any defendant convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) if the defendant had a prior conviction for the transportation or sale of a controlled substance (Health & Saf. Code, § 11352). (Former Health & Saf. Code, § 11370.2, subd. (a), amended by Stats. 1998, ch. 936, § 1.) Because the jury convicted Shivers of possession of cocaine base for sale and Shivers admitted he had a prior conviction for the transportation or sale of a controlled substance, the trial court imposed a three-year enhancement to Shivers's sentence in accordance with the then-extant version of Health and Safety Code section 11370.2, subdivision (a).
However, after Shivers's sentencing and the conclusion of briefing in this appeal, the California Legislature enacted Senate Bill 180, effective January 1, 2018, which limited the prior convictions that can give rise to a sentencing enhancement under Health and Safety Code section 11370.2. (Stats. 2017, ch. 677, § 1.) Among other changes, Senate Bill 180 removed prior convictions for the transportation or sale of a controlled substance (Health & Saf. Code, § 11352) from the list of offenses giving rise to a sentencing enhancement. (Health & Saf. Code, § 11370.2, subd. (a).) In a supplemental brief, Shivers, citing In re Estrada (1965) 63 Cal.2d 740 and its progeny, has asked this court to apply the amendments to Health and Safety Code section 11370.2 retroactively and to strike his three-year sentencing enhancement. The People concede that these recent legislative amendments apply retroactively.
In People v. Millan (2018) 20 Cal.App.5th 450, 455-456, our court concluded that the legislative amendments to Health and Safety Code section 11370.2 applied retroactively to the defendant and directed the trial court to strike the defendant's sentencing enhancement. Accordingly, we accept the People's concession and remand the matter to the trial court with instructions to strike the three-year enhancement under Health and Safety Code section 11370.2, subdivision (a) and resentence Shivers.
II. Joshua Jackson
Jackson's appointed appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Counsel has identified the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): whether (1) the evidence was sufficient to sustain the verdict as to count 2; and (2) the trial court erred in denying Jackson's pretrial motion to suppress evidence obtained from his residence. (Segura v. United States (1984) 468 U.S. 796, 804-805, 813 [finding that evidence is not subject to suppression if police officers did not view the evidence during an illegal entry and later obtained the evidence during the execution of a valid search warrant].)
Additionally, we offered Jackson the opportunity to file a brief on his own behalf, and he has done so. In his brief, Jackson raised the following three issues: whether (1) Proposition 47 requires us to reduce Jackson's prior conviction for street terrorism (§ 186.22, subd. (a)) to a misdemeanor; (2) Proposition 64's reduction of punishment for possession of marijuana for sale (Health & Saf. Code, § 11359) requires us to "rescind" Jackson's one-year prison prior sentencing enhancement; and (3) the trial court abused its discretion by imposing the upper term for his possession conviction. We address each of Jackson's arguments in turn.
An individual who has completed a sentence for a felony that Proposition 47 reduced to a misdemeanor may apply to the trial court that entered the judgment of conviction to have his or her conviction designated a misdemeanor. (§ 1170.18, subd. (f).) However, an application for such relief may not be made to the Court of Appeal in the first instance. (See People v. Awad (2015) 238 Cal.App.4th 215, 221-222 ["We ourselves cannot reduce any of appellant's convictions from a felony to a misdemeanor during the pendency of this appeal. Manifestly, that is a task that Proposition 47 (specifically, § 1170.18) vests with the trial court."]; see also People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1332.) Therefore, we deny Jackson's request that we reduce his prior conviction for street terrorism to a misdemeanor.
Similarly, an individual who has served a sentence for an offense that Proposition 64 reclassified as a misdemeanor or infraction may obtain a dismissal or sealing of the conviction only by applying to the trial court that entered the judgment of conviction. (Health & Saf. Code, § 11361.8, subds. (a), (e); see People v. Rascon (2017) 10 Cal.App.5th 388, 392-395 [finding that Proposition 64 does not automatically apply retroactively].) Here, Jackson has not shown that he ever applied to the trial court that convicted him of possession of cannabis for sale, let alone that he successfully obtained a dismissal or sealing of that prior felony conviction. Accordingly, we decline Jackson's request to strike the prison prior sentencing enhancement that the trial court in this case imposed based on Jackson's conviction for possession of cannabis for sale.
Finally, " '[o]nly a single aggravating factor is necessary to make it lawful for the trial court to impose' the upper term." (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182.). Here, the trial court identified two aggravating factors—(1) Jackson's poor performance on probation and parole for his previous felony convictions; and (2) the sophistication of Jackson's crime. As such, we conclude the trial court did not abuse its discretion when it imposed the upper term. (See Cal. Rules of Court, rule 4.421(a)(8), (a)(10) & (b)(5).)
We conducted an independent review of the record, including considering the Anders issues identified by appointed appellate counsel and the points raised in Jackson's supplemental brief. Our review did not disclose any reasonably arguable appellate issues. Jackson has been competently represented by counsel in this appeal.
DISPOSITION
Shivers's sentence is reversed and the matter is remanded to the trial court with directions to strike the Health and Safety Code section 11370.2, subdivision (a) enhancement and resentence Shivers. In all other respects, the judgment is affirmed as modified.
HALLER, J. WE CONCUR: BENKE, Acting P. J. DATO, J.