Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD201436, William H. Kennedy, Judge.
BENKE, Acting P. J.
David Lewis was convicted of selling cocaine base. He admitted a strike prior within the meaning of Penal Code, section 667, subdivisions (b) through (i), and two prior prison terms within the meaning of section 667.5, subdivision (b). Lewis was sentenced to a prison term of seven years. He appeals, arguing the trial court misinstructed the jury concerning aiding and abetting a sale of cocaine base, erred in failing to instruct concerning lesser included offenses, in denying him sufficient credit for time served and in failing to strike the finding on one of the prison prior allegations.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
On September 7, 2006, while working undercover, Officer Esmeralda Tagaban encountered appellant in the East Village area of San Diego and asked him if he knew where she could buy cocaine base. Appellant asked what she was looking for and Tagaban told him $20 worth. As the two walked together, appellant asked several people if they had cocaine base for sale. None did.
Eventually, appellant, Tagaban and several other drug seekers who joined the quest encountered Leonte Lewis (Leonte) and Valerie Holiday. Appellant approached them and asked if they had cocaine base. Holiday asked what they were looking for. Appellant stated they wanted $20 worth of cocaine base. Leonte took $20 from Tagaban and gave Tagaban a rock of cocaine base.
Tagaban gave the signal for other officers to make an arrest. When the officers did not immediately arrive, Tagaban stalled by telling appellant she still had $10. Appellant asked Leonte and Holiday if they had a $10 rock of cocaine base. Holiday asked who wanted it. Appellant stated he did. Tagaban gave $10 to appellant. Appellant gave Leonte the money and Leonte gave him a rock of cocaine base. Appellant placed the cocaine base in his mouth.
Appellant asked the officer if she had a pipe. Tagaban gave him a pipe. He put the cocaine base in the pipe and lit it. When a police car drove by, appellant dropped the pipe on the ground. After the car left, appellant picked the pipe up. Several moments later, appellant was contacted by an officer. No contraband was found on him.
Tagaban testified appellant never said he would help her find drugs in exchange for payment. Facilitators of drug sales usually do not verbalize that they expect to be paid but it is understood. She stated that appellant's act of taking the second rock of cocaine base was consistent with him being a facilitator. At times a facilitator will take part of the drugs purchased before giving the remainder to the buyer. It was her expert opinion that appellant intended to facilitate a drug sale.
DISCUSSION
A. Aiding and Abetting
Appellant was convicted of selling cocaine base on an aiding and abetting theory. He contends that while the evidence may be sufficient to prove he aided and abetted Officer Tagaban in purchasing the contraband, it was insufficient to prove that he aided and abetted Leonte and Holiday in selling the contraband. He asserts that one who merely aids and abets a purchaser of drugs cannot be convicted of aiding and abetting the seller. Appellant argues the trial court, in the manner it instructed the jury and in its failure to adequately respond to questions from the jury relevant to that concept, offered a legally insufficient theory of culpability, i.e., appellant aided and abetted a drug purchaser and, thus, could be convicted of aiding and abetting the sale. He argues his conviction must, therefore, be reversed. (See People v. Guiton (1993) 4 Cal.4th 1116, 1128.)
1. Background
The trial court, using standard Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) instructions, fully instructed the jury concerning the crime of selling cocaine base and the concept of aiding and abetting.
Defense counsel argued to the jury that appellant could not be convicted of selling cocaine base if the jury found he aided and abetted Tagaban in purchasing the contraband but did not aid and abet Leonte and Holiday in selling it. Counsel argued the evidence showed he was the purchaser's agent and not the seller's.
In rebuttal, the prosecutor argued appellant was guilty as an aider and abettor whether he primarily assisted the purchaser or the seller because assisting one was effectively assisting the other.
Given this disagreement between the parties concerning the law of aiding and abetting in a drug sale context, the jury, not unexpectedly, had a question. It asked if the term "sale" referred only to the function performed by the seller or did it refer to the total transaction, including the functions performed by both the buyer and the seller.
The trial court responded by noting that it could not answer the question, it was an issue for the jury. The court referred the jury to the instruction given on the concepts of sale and aiding and abetting.
2. Discussion
Appellant's claim the jury was offered a legally insufficient theory of culpability, i.e., that he could be convicted of sale based merely on aiding and abetting the purchaser, is fundamentally flawed and without merit. In fact, it is incontrovertibly the law of this state that one who acts as a go-between or agent of the seller or the buyer, i.e., a facilitator, may be found guilty as an aider and abettor of the sale.
In support of his claim, appellant cites People v. Edwards (1985) 39 Cal.3d 107. Edwards deals with the "equal partner defense." Equal partners in the purchase of drugs may not be convicted of furnishing the purchased drugs to each other. (Id. at pp. 112-114.) In elucidating the details and limitations of that defense, Edwards states: "Furthermore, one who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor of the seller." (Id. at p. 114, fn. 5; People v. Reyes (1992) 2 Cal.App.4th 1598, 1604-1605; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1583, fn. 2.)
The defense appellant improperly asserted at trial, i.e., he was not guilty because he merely aided and abetted a buyer and not a seller, is known as the "procuring agent defense." While the defense exists in some jurisdictions (see, e.g., State v. Davalos (2007) 153 P.3d 456, 113 Haw. 385, 387), it does not exist in California. (People v. Reyes, supra, 2 Cal.App.4th at pp. 1604-1605; People v. Cattaneo, supra, 217 Cal.App.3d at p. 1583, fn. 2.)
Even if the defense existed in this state, it would not apply to appellant. As the court stated in People v. Reyes, supra, 2 Cal.App.4th at pages 1604-1605: "Even where the procuring agent defense has been recognized, it is not applicable when the defendant is alleged to have facilitated, rather than directly perpetrated, a sale: '[T]he procuring agent, who is a type of "middleman" or "broker," inevitably facilitates the "sale." To acquit one who makes more easy or otherwise aids or assists the purchase and convict one who facilitates the selling would exalt hair-splitting at the expense of common sense and substance . . . .' [Citation.]"
In this case the trial court's only error was allowing appellant to argue an improper defense to the jury.
B. Lesser Included Offenses
Appellant contends that based on the facts in this case possession for sale of cocaine base and possession of cocaine base were lesser included offenses of the charge crime of sale or furnishing cocaine base. He argues the trial court, therefore, erred when it failed to sua sponte to instruct the jury concerning those offenses.
An offense expressly alleged in an accusatory pleading may necessarily include one or more lesser offenses. The definition of a lesser necessarily included offense is technical and relatively clear. A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117-118.)
The crimes of possession for sale of cocaine base and possession of cocaine base for sale are, under the elements test, not lesser included offenses of furnishing cocaine base. This is so because the knowing possession of a useable quantity of a drug, an element of drug possession crimes, is not an element of selling or furnishing the drug. (See People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.) Neither are possession for sale of cocaine base and possession of cocaine base made lesser included offenses under the accusatory pleading test. Here, the accusatory pleading merely charged the offense of selling or furnishing cocaine base in the statutory language, thus, it does not allege facts making possession for sale of cocaine base and possession of cocaine base lesser included offenses of the charged offense.
Appellant cites People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547, for the proposition that under the facts of this case possession for sale of cocaine base and possession of cocaine base are lesser included offenses of the charged offense. The fact based test on which Tinajero relies has been rejected. (See People v. Murphy (2007) 154 Cal.App.4th 979 (see mod. at 155 Cal.App.4th 503c.) The trial court was under no duty to instruct concerning the offenses of possession for sale of cocaine base and possession of cocaine base.
In any event, any error in failing to so instruct was harmless. We review error in failing to instruct concerning lesser-included offense under the People v. Watson (1956) 46 Cal.2d 818, 836, test. (People v. Breverman (1998) 19 Cal.4th 142, 165-166.) The evidence that appellant aided and abetted a sale of furnishing of cocaine base to Tagaban was overwhelming, and it is not reasonably probable that had the jury been instructed concerning lesser included offenses there would have been a more favorable result for the defense.
C. Credits
Appellant argues the trial court erred when it denied him 336 days of presentence custody and "good time" credits.
1. Law
Section 2900.5, subdivision (b), provides in relevant part that "credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." A defendant is not entitled to credit for presentence confinement unless he shows the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. A criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation based only in part upon the same criminal episode. (People v. Bruner (1995) 9 Cal.4th 1178, 1191.) A defendant must prove the conduct which led to the conviction was a "dispositive" or " 'but for'" cause of the presentence custody. (Id. at p. 1180.) (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.)
"[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint." (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.)
The burden is on the accused to establish entitlement to presentence custody credit. (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194, fn. 10.)
2. Background
The probation report stated that from the date of his arrest on September 7, 2006, appellant spent 224 days in custody and accumulated 112 days of section 4019 "good time" credits. The report noted, however, appellant was taken into custody not only for the offense charged in this case but also for parole violations. The cited parole violations were possession of cocaine for sale, loitering in a drug activity area, association with a prohibited person and failing to register as a sex offender. The report stated that on September 20, 2006, appellant "accepted a 12-month term with an optional waiver." The report stated not all of appellant's parole violations were related to the instant offense. The report concluded that because appellant's presentence custody was attributable to unrelated parole violations, he was not entitled to custody credits against his sentence in this case.
At the sentencing hearing on April 18, 2007, the trial court noted the probation officer's conclusion that appellant was not entitled to custody credits and asked if either party disagreed. Defense counsel stated he was not prepared to respond. The court granted counsel's request to submit a short written response and continued any resolution of the issue of credit.
Later that morning, defense counsel e-mailed the trial court, stating he reviewed the credit issue. Citing People v. Bruner, supra, 9 Cal.4th 1178 and In re Joyner (1989) 48 Cal.3d 487, he concluded any parole violation based on possession of cocaine, loitering in a drug activity area or associating with a prohibited person were related to the instant offense and would not foreclose the granting of credits. However, the failure to register as a sex offender violation was not related and, therefore, appellant was not entitled to credits against his sentence.
At a hearing on April 26, 2007, defense counsel stated he changed his mind. It appears counsel made two arguments. First, it remained counsel's position the only impediment to a grant of credit was the parole violation based on appellant's failure to register as a sex offender. Counsel stated appellant informed him he was paroled on August 13, 2006. Counsel stated appellant further reported that as part of his parole he was committed to the San Diego Treatment Center facility from August 14 through September 5. The probation report states appellant lived at the San Diego Treatment Center from August 14 to September 5. Counsel stated that if appellant's time in the residential treatment facility was a custodial component of his parole, then he remained in custody from August 13 to September 5, and he had no obligation to register as a sex offender during that period. Because appellant was a transient, the registration law required he register within five days of being released from custody. Appellant, however, was arrested for the present offense on September 7. Thus, at the time of his arrest, appellant was not in violation of any requirement he register as a sex offender. All of the remaining parole violations, counsel argued, were related to the underlying offense and, thus, appellant was entitled to presentence custody credits against his term in this case.
Counsel indicated he called appellant's parole officer to confirm appellant's account but had no response.
Defense counsel made a second argument. He stated that on September 20, 2006, appellant, as part of the parole revocation process, accepted a "12-month term with an optional waiver." Counsel represented this meant appellant accepted a term of 12 months in prison for his parole violations with the option that when the criminal proceeding was completed, he would have 15 days to accept or reject the 12-month term. If he rejected the term, then a parole violation hearing would be held. Citing California Code of Regulations, title 15, section 2641, subdivision (b), counsel stated such conditional terms must be based on the same behavior underlying the pending criminal charge. Counsel argued there was still time for appellant to revoke the waiver. Counsel stated if appellant did so, the waiver would evaporate and he would be entitled to credit for time served and "good time" on the term for his present offense. Counsel did not explain exactly why this was the case. Apparently, counsel's point was that the only violations of appellant's parole were acts related to the present crime. If he revoked his waiver of a revocation hearing, the agreed 12-month term for his parole violations would no longer exist and there would be no parole term against which his time in custody would be credited, thus, no danger of a double use of that credit time would exist and it could properly be applied against his term in the present case.
California Code of Regulations, title 15, section 2641, subdivision (b), states: "A parolee who is undergoing criminal prosecution may conditionally waive the revocation hearing, but retain the option to request a hearing as provided in this subsection. Upon receipt of a signed optional waiver, the Board at the central office calendar will determine whether there is good cause to revoke parole. This determination will be made without a hearing or personal appearance by the parolee.
The prosecutor was of no help in dealing with the issue. She stated she was unable to speak with appellant's parole agent and could not contradict the defense position. She did state she wished the parole agent had made some input because it was important there be confirmation of defense counsel and appellant's assertions. The prosecutor indicated there was disagreement in the prosecution and probation community concerning whether appellant was entitled to credit under the circumstances of his optional waiver with the parole board.
One of the probation officers present at the hearing stated the department's position remained that expressed in the probation report, appellant was not entitled to credit because his time in presentence custody was in part the result of factors unrelated to the charged offenses.
A senior probation officer was also present at the hearing. He explained his understanding of the optional waiver of a parole revocation hearing process and its effect on the granting of presentence credit for a current offense. A parolee admits to all or part of the alleged parole violations. A finding is made by the board with regard to that admission and a penalty is imposed. When that is done, the board gives the parolee credit for the time after the parole hold was placed. While the parolee after the completion of the criminal proceeding may revoke his waiver of a revocation hearing, until he does so his admission to the parole violations and the board's assessment of a penalty stands. That being the case, appellant would get credit for his presentence time against his parole violation penalty and not against his sentence in the criminal case.
The trial court agreed with the probation report and denied appellant custody and "good time" credits against his term in this case. The court stated if appellant's situation changed in the future, he could apply to the court for the credits.
3. Discussion
We begin by repeating that it was appellant's burden to prove he was entitled to an award of credits for the period of presentence custody. It would have been helpful had appellant offered in evidence the documentation related to his parole hold, to his waiver of a parole revocation hearing and concerning his alleged parole violations and the allegation to which he admitted. It would have been useful if he had offered the testimony of his parole officer or a parole official who could have explained the regulations related to appellant's revocation and the particular facts of appellant's case. Defense counsel did none of this. Instead, counsel offered hearsay statements, surmise concerning the actions of the parole board and speculation concerning the effect of appellant withdrawing his waiver of a parole hearing, a withdrawal appellant had not yet made. Defense counsel argued, ineffectively and without factual or legal support, that appellant's revocation could not be based on his failure to register as a sex offender and was instead based on his possession of cocaine for sale, loitering in a drug activity area, associating with a prohibited person. Based on the evidence offered by appellant, we do not even know if these parole violations arose from the same activity that resulted in the present criminal prosecution. We suspect they did but there is nothing in the record establishing that fact.
Appellant failed to prove he was entitled to presentence credits.
D. Stay of Prison Prior
Appellant argues and the Attorney General agrees the trial court erred in staying rather than striking one of appellant's two section 667.5, subdivision (b), prison priors. (See People v. Campbell (1999) 76 Cal.App.4th 305, 311.) The Attorney General states it appears the trial court's intention was not to impose a term on the second prison prior and agrees the judgment should be modified to strike it. We agree.
DISPOSITION
The abstract of judgment is ordered modified to delete any reference to the second section 667.5, subdivision (b), finding. In all other respects the judgment is affirmed.
WE CONCUR: HUFFMAN, J. HALLER, J.
"If the Board orders parole revoked and the parolee returned to custody, the parolee then may request a revocation hearing. A hearing request must be received by the Board no more than 15 days following sentencing or final disposition at the trial court level in the criminal proceedings and no later than two months before expiration of the revocation period ordered by the Board at the central office calendar. Upon receipt of a hearing request, the Board shall schedule a revocation hearing. At the hearing the panel may take any appropriate action."
The section does not state the optional waiver must be based on the same behavior underlying the pending criminal charge.