Opinion
C087938
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. REGGINALD MANDEL MATTHEWS, SR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18F2049)
Defendant Regginald Mandel Matthews, Sr., was convicted of drug-related crimes and unlawful possession of a firearm and ammunition based on evidence found by police during two separate warrant searches executed in June 2017 and November 2017. On appeal, he contends the evidence was insufficient to establish that he opened or maintained a place for drug sales or use. Defendant also argues the prosecutor committed misconduct during closing argument, and that the trial court erred in consolidating the offenses committed in June 2017 and November 2017. He further contends there was insufficient evidence to authenticate two photos that were admitted by the trial court, and that the trial court erred in failing to stay his sentence for unlawful possession of ammunition pursuant to Penal Code section 654. Finally, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the trial court erred in imposing certain fines and fees without holding a hearing to determine his ability to pay them. We will modify the judgment to stay the term for the unlawful possession of ammunition charge and order the trial court to correct errors in the abstract of judgment. We otherwise will affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. June 2017 search warrant (case No. 18F2049)
At 5:30 p.m. on June 16, 2017, officers of the Redding Police Department executed a search warrant on a residential trailer where they suspected drugs were being sold. The police had previously received information from a "reliable" source that a woman named Angela and a man named Reggie, who was the same race as defendant and whose first name is Regginald, were selling narcotics from the trailer.
The day of the search, Officer Jonathan Sheldon conducted surveillance on the trailer between 3:00 and 5:30 p.m. to assess whether there was suspected drug activity before executing the warrant. Fifteen people arrived during this period, which Sheldon described as "fairly active." Each visitor stayed for only a short period of time, with 15 to 20 minutes being the longest. Sheldon testified that such "chronic short stops" indicated that the visitors were purchasing drugs and leaving.
After finishing the surveillance, Officer Sheldon pounded on the side of the trailer for 15 seconds while announcing the presence of the police. Defendant, who was only partially clothed and appeared to have been sleeping, opened the door just enough to get out and then immediately closed the door behind him. Sheldon testified defendant's actions signaled that defendant was "in charge of the residence" and "trying to conceal" whatever was inside. In Sheldon's experience, people who do not have control over a residence will "try to ignore [police] and hope we go away." Police found a total of $1,425 cash in three of defendant's pockets. Sheldon testified that drug dealers often carry money in multiple pockets. Defendant also appeared to be under the influence of heroin.
Police stopped Angela D. as she drove into the trailer's driveway, and she said that she lived in the trailer. She also told police that defendant was her boyfriend and they lived together. Police found four other people in the trailer, each of whom appeared to be under the influence of heroin. Officer Sheldon testified that "most" people who sell narcotics also use them. In addition, Sheldon testified that the trailer was "a mess," which is typical for a home being maintained to sell and use narcotics.
Police found a digital gram scale in the kitchen. The weighing surface of the scale had a brown, tar-like substance that appeared to be heroin residue. During the July 2018 trial, a police officer who was involved in the June 2017 search testified that sellers need to weigh their heroin, but users typically do not.
Both of the two bedrooms in the trailer were cluttered. In one of the bedrooms, police found more than six grams of heroin, approximately 21 grams of methamphetamine, unused packaging materials (i.e., small resealable plastic bags), scales for weighing drugs, paraphernalia for using drugs, and "hide containers" for hiding drugs. The heroin was separated into smaller quantities in four separate packages, including two with 2.4 grams of heroin each, one with 2.1 grams of heroin, and another with 0.6 grams. Officer Sheldon testified that a typical dose of heroin or methamphetamine would be 0.1 grams, and it would be rare for a user to possess so many doses of methamphetamine (over 20 grams or 200 doses) or heroin (over six grams or 60 doses).
Police also found men and women's clothing in the bedroom, although the clothing was "predominately female." There was female jewelry on the nightstand, and the bed appeared "unke[m]pt, as if somebody had been sleeping in it." A casino player's card with defendant's name on it was in one of the dresser drawers.
Officer Sheldon testified that under the circumstances, it appeared the trailer was "open for anyone" to buy drugs and use them, with defendant "in control" of the residence. It also appeared that defendant possessed the methamphetamine and heroin in order to sell them, given that defendant had unused packaging materials, scales, hide-a-cans (hide containers), and over $1,400 in cash stuffed into multiple pockets.
In April 2018, defendant was charged in case No. 18F2049 with maintaining a place for sale/using a controlled substance (methamphetamine & heroin) in June 2017 (Health & Saf. Code, § 11366; count 1); possessing a controlled substance for sale (heroin) in June 2017 (Health & Saf. Code, § 11351; count 2); and possessing a controlled substance for sale (methamphetamine) in June 2017 (Health & Saf. Code, § 11378; count 3).
B. November 14, 2017 search warrant (case No. 17F6363)
Police returned to search the residential trailer on November 14, 2017, pursuant to a search warrant, at which time defendant was sitting in the driver's seat of a car parked beside the trailer. Police found a suspected methamphetamine pipe and small, empty plastic baggies in defendant's pockets. They also found two wallets, each of which contained packets of heroin. In the car, police found a letter with defendant's name on it, heroin, and a digital scale. In total, 15.1 grams of heroin was found in defendant's wallets and the vehicle. The digital scale was also "heavily covered" with methamphetamine and heroin residue, which police testified was "indicative of sales." Police found needles and another scale inside the trailer.
Investigating police officers testified that police noticed during the November 2017 search that defendant was wearing a "distinctive" silver ring on his pinkie with a rope-like pattern on it. Police also found a cell phone that defendant said was his. The cell phone contained photographs showing a Glock handgun with the serial number filed off. The photo showed a small safe in the background, and police found the same safe in defendant's bedroom in the trailer. The photo showed that the safe contained Iraqi currency and a butane bottle. The same items were in the safe found in defendant's bedroom, along with a copy of the June search warrant. Other photos showed someone wearing the same ring as defendant while holding an ammunition magazine for a Glock pistol. Officer Nolan Guiducci, who authored the search warrant and participated in the search, testified that he recognized the magazine because it was the same magazine that he carries. Defendant told police that he possessed the gun two weeks before the November 2017 search, but he no longer had it. Defendant also said he had previously fired the gun, and he identified the magazine as a Glock magazine loaded with "ball ammo." Police did not find any firearms or magazines in the trailer.
While they were outside, defendant told police that his girlfriend Angela was inside the trailer, and police found her there. He also said he had been staying and living in the trailer for the past six or seven months. Officer Guiducci testified that the trailer was a rental, and he was not sure whether Angela was on the rental contract or lease. Defendant also told police he had been an "avid heroin user" for the past two to three years and sold heroin weekly to "fund his habit." In Guiducci's experience, it is "very common" for drug users to sell drugs "in order to fund their habit." Under the circumstances, Guiducci believed defendant possessed the heroin found the day of the search for purposes of selling it.
In November 2017, defendant was charged in case No. 17F6363 with unlawful possession of a firearm (§ 29800, subd. (a); count 1); unlawful possession of ammunition (§ 30305, subd. (a)(1); count 2); possession for sale of a controlled substance (heroin) (Health & Saf. Code, § 11351; count 3); and possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378; count 4).
C. Consolidation and trial
In July 2018, the trial court granted the prosecution's motion to consolidate case Nos. 17F6363 and 18F2049, for "trial purposes only." A consolidated information was filed on July 10, 2018, and trial began the same day.
D. Defense testimony
Defendant's stepbrother testified that in 2017 defendant lived with him and other family members at a home owned by the stepbrother's father. Defendant had his own room in the home, although he would sometimes stay elsewhere, including the homes of other women. The stepbrother testified that Angela was defendant's girlfriend in June 2017, and that she lived in a trailer at the time.
E. Jury verdict and sentencing
In July 2018, a jury found defendant guilty of maintaining a place for sale/using a controlled substance (methamphetamine & heroin) in June 2017 (Health & Saf. Code, § 11366); possession of a controlled substance for sale (heroin) in June 2017 (Health & Saf. Code, § 11351); possession of a controlled substance for sale (methamphetamine) in June 2017 (Health & Saf. Code, § 11378); unlawful possession of a firearm in November 2017 (§ 29800, subd. (a)); unlawful possession of ammunition in November 2017 (§ 30305, subd. (a)(1)); and possession of a controlled substance for sale (heroin) in November 2017 (Health & Saf. Code, § 11351).
In September 2018, the court sentenced defendant to state prison for seven years, as follows: four years (the upper term) for violating Health and Safety Code section 11351 in November 2017; eight months consecutive (one-third the midterm) for violating section 29800, subdivision (a) in November 2017; two years concurrent (the midterm) for violating section 30305, subdivision (a)(1) in November 2017; eight months consecutive (one-third the midterm) for violating Health and Safety Code section 11366 in June 2017; one year consecutive for violating Health and Safety Code section 11351 in June 2017; and eight months consecutive (one-third the midterm) for violating Health and Safety Code section 11378 in June 2017. In selecting the upper term for the principal count, the trial court noted multiple aggravating factors, including that defendant had "numerous" prior convictions as an adult, the crime involved a "considerable amount" of heroin divided into "multiple" packages for sale, and defendant had previously violated parole and served a "number" of prior prison terms. In running the term for the unlawful possession of ammunition concurrently, the trial court stated the possession of the gun and the ammunition "appear to the Court to have been committed at the same time and in union with each other. Although the Court does recognize they are not [subject to section] 654, they are, indeed, separate offenses only not having the ammunition to use or to possess an operable firearm." Even though a consolidated information was filed under case No. 18F02049, the abstract of judgment still lists the convictions according to their preconsolidated case numbers.
The trial court also imposed an $1,800 restitution fine (§ 1202.4, subd. (b)); a corresponding $1,800 parole revocation fine, suspended unless parole is revoked (§ 1202.45); a $240 court operations assessment (§ 1465.8); and a $180 court facilities assessment (Gov. Code, § 70373). Defendant did not object to any of the fines on the basis of indigence or inability to pay.
DISCUSSION
I
Defendant contends the evidence was insufficient to establish that he violated Health and Safety Code section 11366 in June 2017 by opening or maintaining a place for drug sales or use. Despite defendant's statement in November 2017 to police that he had been living in the trailer for six to seven months, defendant argues there is insufficient evidence that he lived in the trailer or otherwise maintained it for drug sales or use. Defendant points to his stepbrother's testimony that defendant lived with his family and stayed with his other girlfriends. Defendant also notes that the clothing and jewelry in the trailer were primarily female. Defendant's contentions are without merit.
In considering a claim of insufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence, and a judgment will be reversed only if there is insufficient substantial evidence to support the conviction under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (2010) 50 Cal.4th 616, 638-639.) We do not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Under Health and Safety Code section 11366, "[e]very person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance . . . shall be punished by imprisonment . . . ." The elements of the offense are "that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance." (People v. Hawkins (2004) 124 Cal.App.4th 675, 680.)
Viewing the evidence in the light most favorable to the jury's finding, we conclude substantial evidence supports the jury's finding that defendant maintained the trailer for the purpose of unlawfully selling, giving away, or using heroin or methamphetamine. A jury could reasonably conclude that defendant lived in the trailer based on defendant being found there during the June and November 2017 searches, and the statements from defendant and Angela that defendant had been living there. Further, male clothing and defendant's casino card were found in the bedroom, and defendant acted as though he was in control of the trailer by opening the door to the police in June 2017.
There also was evidence indicating that defendant was selling drugs in or around the trailer, and allowing others to use drugs there. Before the June 2017 search, a "reliable" source told police that "Angela" and a man who was the same race as defendant and who had the same first name as defendant (Reggie) were selling narcotics from the trailer. When Officer Sheldon surveilled the trailer in June 2017 for a two and a half hour period, he suspected drugs were being sold because 15 people stopped by the trailer, each one for only a short period of time, with 15 to 20 minutes being the longest. That same day, police found a large quantity of cash separated among defendant's pockets, a practice that is typical among drug dealers. In addition, the four other people inside the trailer appeared to be under the influence of heroin. Police also found a scale with apparent heroin residue, unused packaging materials, and heroin and methamphetamine in quantities larger than for mere personal use. Defendant also told police in November 2017 that he had been living in the trailer for the past six or seven months and sold heroin regularly to fund his heroin habit. Under the circumstances, a jury could reasonably conclude that defendant maintained the trailer in June 2017 for selling or using a controlled substance.
II
Defendant argues the prosecutor engaged in prosecutorial misconduct while delivering his closing argument. This contention also lacks merit.
A. Additional background
During closing argument, defense counsel argued the evidence failed to establish beyond a reasonable doubt that defendant maintained the trailer for purposes of selling or using drugs. Defense counsel argued defendant opened the trailer door for police in June 2017 merely because he was closest to the door, and noted defendant was found outside the trailer in November 2017. In addition, police only visited the trailer twice, and it was unclear how often defendant spent the night with Angela in the trailer. Also, the bedroom contained predominately female clothing, suggesting he was not there very often. There was also evidence that other people stayed there, including the passenger in Angela's car in June 2017. In addition, there was no evidence defendant had a "possessory interest" in the trailer, such as rent or utility bills.
The prosecutor argued in rebuttal: "It's always striking when a defense attorney will pick apart [my] argument because I have no evidence, I'm coming to conclusions, I'm overreaching or whatever, and then in order to bolster that argument, that statement, she does the same exact thing she's accusing me of. [¶] Specifically, what evidence do we have that this residence belongs to, is in the sole possession of [Angela]? Do we have her rent agreement? Lease agreement? Utilities? None of that was brought into evidence."
Defense counsel objected, arguing the prosecutor had misstated the law because defendant was "not required to bring in any evidence." The court responded, "In argument, ladies and gentlemen, the attorneys will be able to rebut, meaning that they can address issues that were discussed by either side, and whether or not you find the evidence that they're discussing reasonable or anything you want to use, these are simply arguments or statements of the attorneys. They are not to be used as evidence. . . . [¶] [O]bjection is overruled."
The prosecutor continued: "And I'm not putting that on the defendant to prove that. I'm saying there is no evidence of it, whether it came from the officers or [defendant's stepbrother] or anybody. Okay. I'm not saying that they had to prove that, and they don't, and the Court made that clear. [¶] But, everything she wrote on the board there regarding [the Health and Safety Code section 11366 allegation], all those arguments she made about [Angela] being the rightful, true owner, is based upon the same or even less evidence than what we have in the case against the defendant." The prosecutor reminded the jury that men's clothing and a casino player card with defendant's name on it (and not Angela's) had been found in the same bedroom as the drugs, scales, and hide-a-cans. In addition, it was defendant, rather than Angela, who was inside the trailer and opened the door for the police when they arrived to execute the search warrant in June 2017. Defendant appeared to be under the influence at the time. The prosecutor further argued defendant told police he was selling drugs, and police found more drugs than needed for mere personal use in both June and November 2017. In addition, a reliable informant had told police a man with defendant's name and the same race as defendant was selling drugs out of the trailer.
B. Analysis
According to defendant, the prosecutor's comments conveyed that defendant was "obligated to produce evidence in support of its theory of the case," and that "the jury's verdict—whether guilty or not guilty—must be based on some fact, evidence, or testimony presented at trial." Defendant further argues the effect was to lessen the prosecution's burden of proving defendant's guilt beyond a reasonable doubt. We disagree.
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' " (People v. Centeno (2014) 60 Cal.4th 659, 666.) Improper comments are misconduct if they "involve use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Cortez (2016) 63 Cal.4th 101, 130.) To establish misconduct, a defendant must show that, " ' "[i]n the context of the whole argument and the instructions" [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." [Citation.] If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (Ibid.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
Although a prosecutor commits misconduct under Griffin v. California (1965) 380 U.S. 609 if he or she " 'comment[s] upon a defendant's failure to testify in his or her own behalf,' " Griffin does not bar a prosecutor from commenting " 'upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses.' " (People v. Thomas (2012) 54 Cal.4th 908, 945.) For example, in Thomas, the prosecutor did not commit misconduct by commenting on the defendant's failure to call "some person other than defendant" who would testify that the defendant " 'was with me' " during the crimes, and thereby provide an alibi. (Ibid.)
Similarly, in People v. Bradford (1997) 15 Cal.4th 1229, the prosecutor did not commit misconduct by commenting during closing argument on the "absence of evidence contradicting what was produced by the prosecution on several points, and the failure of the defense to introduce material evidence or any alibi witnesses." (Id. at p. 1339.) The Bradford court also found that the prosecutor's comments did not impermissibly shift the burden of proof to the defendant. (Id. at p. 1340.) The trial court advised that the prosecution bore the burden of proof, and the prosecutor reiterated the court's instructions. (Ibid.) As the court explained, "[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (Ibid.)
Similar to Bradford and Thomas, the prosecutor here did not commit misconduct by commenting on the lack of evidence supporting defendant's theory, namely, that Angela solely possessed (and controlled) the trailer. (See also People v. Cook (2006) 39 Cal.4th 566, 608 ["[a] prosecutor may make fair comment on the state of the evidence"].) Moreover, the court immediately reminded the jury that the attorneys' statements were merely argument and not evidence. After the court's admonition, the prosecutor reiterated that he bore the burden of proof, saying, "I'm not putting that on the defendant to prove that. . . . I'm not saying that they had to prove that, and they don't, and the Court made that clear." Under the circumstances, the prosecutor's comments did not shift the burden of proof to defendant.
III
Charges related to the June 2017 search were filed separately from charges related to the November 2017 search (case Nos. 18F2049 and 17F6363, respectively). Defendant argues the trial court erred in consolidating the two matters for trial because it caused substantial prejudice. According to defendant, there was no cross-admissible evidence justifying consolidation, especially since there was no evidence that defendant possessed the firearm during the narcotics offenses. Defendant also argues the firearm and ammunition charges stemming from the November 2017 search had a "highly inflammatory effect on the jury." Defendant further contends the evidence supporting the charges related to the November 2017 search was much stronger than the evidence from the charges related to the June 2017 search, and altered the outcome on some or all of the charges. Defendant notes that drugs were found on his person in November 2017, and he told the police he was selling controlled substances. In contrast, defendant argues, the evidence from June 2017 was weaker because drugs were found in the trailer but not on defendant's person, and defendant did not make any incriminating statements. Defendant argues the joint trial resulted in gross unfairness and deprived him of his constitutional right to a fair trial and due process of law. We again find no error.
A. Additional background
In June 2018, the prosecutor filed a motion to consolidate case Nos. 17F6363 and 18F2049 for trial. The prosecutor argued the charged offenses were connected together in their commission, because defendant's possession of heroin for purposes of sale in each instance would be admissible in a trial involving the other instance. According to the prosecutor, such evidence was relevant to defendant's knowledge that heroin was a controlled substance, and that he possessed it with the intent to sell. The prosecutor further argued there were several witnesses who would have to testify in both cases, including two investigators and a prosecution criminalist, and that the offenses were of the same class, i.e., possession of a controlled substance.
Defense counsel opposed the motion to consolidate, arguing consolidation would be prejudicial because the firearm and ammunition charges in case No. 17F6363 pointed to defendant's prior convictions and were therefore inflammatory. She also argued there was no cross-admissible evidence, and consolidation would improperly permit a weaker case to be joined with a stronger case, based on defendant's statements to police in November 2017 that he was selling drugs to support his own drug habit. The court ultimately granted the prosecution's motion to consolidate.
The record does not contain a transcript from any hearing on the motion to consolidate.
B. Analysis
Section 954 provides that "[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." The law prefers consolidation or joinder of charges because it promotes efficiency. (People v. Merriman (2014) 60 Cal.4th 1, 37.) A defendant can establish an abuse of discretion in ordering consolidation only by making a " ' "clear showing of prejudice." ' " (Ibid.) When reviewing the trial court's decision to consolidate, we consider only "the facts known by the trial court at the time of [its] ruling." (Ibid.)
The determination of prejudice depends upon the circumstances of each case. In noncapital cases, we consider on review the following factors: (1) the cross-admissibility of the evidence in separate trials, (2) whether some of the charges are "unusually likely to inflame the jury against the defendant," and (3) whether a " 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges." (People v. Sandoval (1992) 4 Cal.4th 155, 172.)
As defendant concedes, the narcotics charges in the two cases are of the same class, meaning consolidation was proper under section 954. (People v. Ybarra (2016) 245 Cal.App.4th 1420, 1433; see also People v. Leney (1989) 213 Cal.App.3d 265, 269 [offenses are of the same class when they possess common attributes].) In addition, the trial court did not abuse its discretion in consolidating the cases because some of the evidence is cross-admissible, namely, the evidence of defendant's possession of drugs for purposes of sale in June and November of 2017 (Health & Saf. Code, § 11351), and defendant's confession in November 2017 that he had been staying and living in the trailer for the past six or seven months, and that he had been selling heroin weekly to "fund his habit." Such evidence is relevant to issues that the prosecution bore the burden of proving, including defendant's knowledge of the nature of heroin, and his intent while possessing it. (See People v. Parra (1999) 70 Cal.App.4th 222, 226 [to establish a defendant's guilt on the possession of a controlled substance for sale charges, the prosecution must demonstrate that defendant intended to sell the heroin and knew its narcotic nature]; see also People v. Pijal (1973) 33 Cal.App.3d 682, 691 [upholding under Evid. Code, § 1101, subd. (b), the admissibility of the defendant's prior narcotics convictions for possessing narcotics for sale, where the defendant's knowledge, motive, and intent were relevant to the current charges]; People v. Hancock (1957) 156 Cal.App.2d 305, 312 ["[a]n essential element of the crime of possession of narcotics is knowledge of the narcotic character of the article possessed [citation] and evidence of prior use of narcotics . . . is admissible for such purpose"].) That there was no cross-admissible evidence regarding the firearm and ammunition charges and the June 2017 narcotics charges is not sufficient to establish prejudice. (See Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221 ["even the complete absence of cross-admissibility does not, by itself, demonstrate prejudice" from a court's decision to consolidate or decline to sever charges].)
Moreover, none of the charges were unusually likely to inflame the jury against defendant. Although the firearm and ammunition offenses were of a different class than the narcotics charges, there was no suggestion that defendant injured or threatened anyone with the gun. In addition, despite defendant's contentions, neither case was particularly weaker or stronger than the other, such that evidence might alter the outcome on some or all of the charges. The charges arose from two search warrants executed at the same trailer; police found narcotics, drug paraphernalia, and other indicia that defendant was engaged in drug sales during each search.
Even if the trial court's consolidation ruling was correct at the time, we will still reverse the judgment "if the defendant shows that joinder resulted in 'gross unfairness' amounting to a denial of due process. [Citations.] In determining whether there was such gross unfairness, we view the case as it was tried, including a review of the evidence actually introduced in the trial . . . and other trial related matters, such as the prosecutor's closing argument." (People v. Ybarra, supra, 245 Cal.App.4th at p. 1434.) The defendant bears the " 'high burden' " of establishing gross unfairness amounting to a due process violation. (Id. at p. 1438.) A defendant "must demonstrate a 'reasonable probability' that the joinder affected the jury's verdicts." (Ibid.)
Defendant argues consolidation was grossly unfair because the evidence presented for each count was "inflammatory," and combining the cases "significantly bolstered the likelihood of guilty findings in both cases." We disagree with defendant's characterization of the evidence given the ample evidence of defendant's guilt resulting from the June and November 2017 warrant searches. In June 2017, police found several indicia that defendant was engaged in drug sales in the trailer, including the 15 individuals briefly visiting the trailer during two and a half hours of surveillance. Defendant (who appeared to be under the influence) opened the trailer door for police, and Angela told police they lived together there. Inside the trailer, police found four individuals who also appeared to be under the influence, drugs, a digital scale with apparent heroin residue, drug paraphernalia, hide containers, and small plastic baggies. Police also found $1,425 in cash distributed amongst defendant's pockets, a practice common among drug dealers.
Similarly, in November 2017, defendant was found in a car parked outside the same trailer. Police found heroin, suspected drug paraphernalia, and empty plastic baggies on defendant's person. Inside the car, police found more heroin and a digital scale "heavily covered" with methamphetamine and heroin residue. Needles and another scale were found inside the trailer. Again, defendant told police he had been staying and living in the trailer for the past six or seven months, and that he had been selling heroin weekly to "fund his habit." Police also found photos of a gun and ammunition on defendant's cell phone.
Under the circumstances, the evidence supporting the charges stemming from the June 2017 search was not particularly stronger than the evidence supporting the charges stemming from the November 2017 search, and none of the evidence was inflammatory with respect to the remaining charges. In sum, we conclude defendant has failed to demonstrate a reasonable probability that the consolidation affected the jury's verdict.
C. Description of the consolidated case in the abstract of judgment
With respect to sentencing, we noted during our review of the record that the abstract of judgment lists the convictions according to the preconsolidated case numbers and count numbers. Given that the trial court granted the prosecution's motion to consolidate the cases, and that the prosecution filed a consolidated information under case No. 18F02049, this was error. We will order the trial court to correct the abstract of judgment to indicate the correct case number, namely, 18F02049, to omit case No. 17F6363, and to change the count numbers to correspond with those in the consolidated information filed on July 10, 2018. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct errors and omissions in abstracts of judgment, including clerical errors].)
IV
We turn now to defendant's argument that there was insufficient evidence to establish the foundation to authenticate exhibits 1 and 4, rendering them inadmissible. The exhibits are photographs that Officer Guiducci took of photographs on defendant's cell phone during the November 2017 search. In exhibit 1, a photograph taken of the screen of defendant's phone shows an unidentified hand holding a firearm. The phone is shown next to a safe, and the same safe is in the photo on defendant's phone. In exhibit 4, a photograph taken of the screen of defendant's phone shows an unidentified hand holding a magazine filled with ammunition. Defendant argues that without exhibits 1 and 4, the only remaining evidence of defendant's unlawful possession of the ammunition and the gun were defendant's out-of-court statements, and these as a matter of law would be insufficient to establish his guilt. Defendant's contentions are without merit.
A. Additional background
In July 2018, the trial court held a hearing pursuant to Evidence Code section 402 to determine the admissibility of exhibits 1 and 4. During the hearing, Officer Guiducci testified that during the November 2017 search, another officer had found a cell phone on defendant's person. Defendant identified the phone as his. Guiducci examined the phone and found a photograph of a Glock 22, and a photograph of a handgun magazine containing ball-style ammunition. There was also an unidentified hand in each of these photos holding the item while wearing a black and silver ring. Guiducci testified that he believed the hand in the photographs was defendant's because defendant was wearing the same black and silver ring the day of the November 2017 search. Defendant was also wearing a second ring at the time of November 2017 search; the second ring was not seen in either photo found on defendant's phone.
The background facts here are derived from Officer Guiducci's testimony during the 402 hearing. --------
Guiducci further testified that defendant said he had the firearm "probably a couple weeks prior," and had shot it at a nearby shooting range. Defendant also said he had used ball-style ammunition while shooting it. In addition, defendant said the gun was no longer in his possession and was probably in Oregon or Washington.
During the hearing, the prosecutor argued the photographs of defendant's cell phone screen were admissible because he admitted the phone was his, and because he admitted to possessing the gun and ammunition magazine. Defense counsel objected, arguing there was insufficient foundation because Officer Guiducci did not know where the phone was prior to the day of the search, nor who took the photos, nor how the photos came to be on defendant's phone. She also argued Guiducci was unable to testify that the photo accurately depicted what it purported to depict, and the similarity between the ring in the photos and the one worn by defendant the day of the November 2017 search was insufficient to establish that it was his hand in the photo.
In addition, defense counsel argued the photos were prejudicial, confusing, and misleading because it was difficult to see the contraband in the photos. The court had initially commented during the proceeding that exhibit 1 showed a "black box" with an orange "streak," but the court "c[ould not] make out anything in it." The prosecutor explained that there was a firearm in it, with a "[p]istol grip on the left side with the barrel running toward the top of the picture going left to right." Later, Guiducci testified that exhibit 1 showed a hand holding the firearm; the court asked, "[A]re you saying that in the photograph, . . . I can't make it out, that there's a person holding the firearm?" Guiducci explained where the hand and ring were in the photo, and testified that there was more than one photo of the gun in the phone. The court subsequently explained that it could see the gun in the photo of the phone screen, noting, "I had to put the picture at a particular angle to pick it up."
The court found the photos were sufficiently authenticated, even without defendant's statements. The police had found the phone on defendant's person, and the phone had photos that were consistent with defendant's hand holding his ammunition and his gun. In addition, the ammunition magazine in the photo was appropriate for the gun in the photo. The photos were more probative than prejudicial since they were relevant to defendant's alleged unlawful possession of a firearm and ammunition. The court also concluded that defendant's statements regarding the phone, gun, and ammunition were admissible as admissions.
B. Analysis
Like any writing, a photograph must be authenticated before it is admitted into evidence. (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) There must be "sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered." (Id. at p. 267; Evid. Code, §§ 1400, 1401, subd. (a).) The foundation for a photograph may be supplied by the photographer, a witness to the scene, or "other witness testimony, circumstantial evidence, content and location." (Goldsmith, at p. 268.) " 'The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (Id. at p. 267.)
Only a prima facie case for authenticity is needed to justify admitting evidence. (Goldsmith, supra, 59 Cal.4th at p. 267.) We review a trial court's ruling on authentication for abuse of discretion. (Id. at p. 266.)
Defendant argues the trial court abused its discretion in admitting exhibits 1 and 4 because Guiducci was not present when either of the photographs found in the phone were taken. Defendant further argues Guiducci did not have independent knowledge as to whether the hand in the photographs was defendant's. In addition, Guiducci did not know whether defendant had the ring shown in exhibits 1 and 4 before the November 2017 search, and the second ring defendant was wearing during the November 2017 search did not appear in either of the photographs found in defendant's phone. Finally, defendant argues the photographs lack authenticity because they were poor quality.
Despite defendant's contentions, Guiducci's testimony was adequate to establish a prima facie case that exhibits 1 and 4 showed photographs of defendant possessing a gun and ammunition. Although the trial court initially might have had difficulty deciphering the contents of the photos, it eventually did so, indicating that the photos were clear enough to show the gun and the ammunition. In addition, it can reasonably be inferred that the hand holding the contraband in the photos is defendant's, given that on the day of the November 2017 search, defendant was wearing the same ring as is shown in the photos. (See Goldsmith, supra, 59 Cal.4th at p. 268 [circumstantial evidence may establish the foundation for a photograph].) Moreover, the photos were from defendant's phone, and defendant told Guiducci that he had shot the firearm at a shooting range a couple of weeks prior to the November 2017 search, using the same type of ammunition as shown in the photograph. Although a jury could infer that the hand was not defendant's because he was wearing a second ring the day of the November 2017 search that was not shown in either photo found in defendant's phone, this goes to the photographs' weight as evidence, not their admissibility. (See Goldsmith, supra, 59 Cal.4th at p. 267 [a potential conflicting inference regarding authenticity " 'goes to the document's weight as evidence, not its admissibility' "].) Under the circumstances, we find no abuse of discretion. Given our conclusions, we need not reach defendant's argument that without exhibits 1 and 4, there was insufficient evidence to establish he unlawfully possessed the ammunition and the firearm.
V
Defendant next contends the trial court erred when it failed to stay under section 654 the two-year concurrent term for the unlawful possession of ammunition offense, and the People agree. After examining the record, we concur.
Under section 654, subdivision (a), "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." The statute does not prohibit multiple convictions for the same conduct, only multiple punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses. [Citation.]" (Ibid.)
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311.) We first consider whether the different crimes were completed by a " 'single physical act.' " (Ibid.) "If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives. [Citations.]" (Ibid.)
"The divisibility of a course of conduct depends upon the intent and objective of the defendant." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) If each criminal act is incidental to, or accomplished with a single objective, the defendant may be found to harbor a single intent. If the defendant harbored multiple criminal objectives independent of one another, he may be punished for each statutory violation even if they were part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) We apply the substantial evidence standard of review to the trial court's implied finding that a defendant harbored a single intent and objective for each offense. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414; see People v. Alford (2010) 180 Cal.App.4th 1463, 1468 ["the imposition of concurrent terms is treated as an implied finding that the defendant bore multiple intents or objectives, that is, as a rejection of the applicability of section 654"].)
In People v. Lopez (2004) 119 Cal.App.4th 132, the court held section 654 barred multiple punishment for the defendant's convictions for unlawful possession of a firearm and unlawful possession of ammunition, based on his possession of a single loaded firearm. (Id. at pp. 137-138.) The court reasoned that although possession of an unloaded firearm could assist someone in committing another crime, such as frightening or clubbing the victim, ammunition alone cannot be used in a similar fashion. (Id. at p. 138.) Accordingly, the court found defendant's single intent was to possess a loaded firearm. (Ibid.)
Similarly, in People v. Sok (2010) 181 Cal.App.4th 88, the court concluded that punishment for the defendant's conviction for unlawful possession of ammunition should have been stayed under section 654 because the ammunition was either loaded in the defendant's gun or had been fired from it. (Id. at p. 100.) The court reasoned there was "no evidence in the record that would support the trial court's implied factual finding that [the defendant] had different or multiple objectives in possessing the loaded firearm and possessing the ammunition in the gun itself." (Ibid.)
Just as in Lopez and Sok, there is no evidence in the record to support the trial court's implied finding that defendant harbored different or multiple criminal objectives in possessing the Glock firearm and ammunition. During the sentencing hearing, the court found that the gun and ammunition were possessed "at the same time and in union with each other." Although the ammunition magazine was shown in a separate photo from the gun, it was a Glock magazine and matched the Glock gun defendant possessed. In addition, the ammunition in the photo was ball-style, the same type that defendant told police he had used when he shot the gun two weeks prior to the November 2017 search. Police did not find any other firearms, magazines, or ammunition in the trailer during the November 2017 search, further indicating that defendant possessed the ammunition solely for the purpose of having a loaded Glock firearm.
We turn next to the appropriate remedy. Defendant argues that instead of staying the term for the unlawful possession of ammunition charge, we should remand the matter for resentencing. According to defendant, the record indicates the court "thought it was giving [defendant] a break" by ordering the term for the unlawful possession of ammunition conviction to run concurrently, and likely used that factor in deciding whether to impose the upper or lower term. We disagree.
The court identified a number of aggravating factors when it stated it would impose the upper term for the principal count, but the court never suggested that it was because of the concurrent term on the unlawful possession of ammunition conviction. (See also People v. Black (2007) 41 Cal.4th 799, 813 [a single valid factor is enough to justify imposition of an aggravated term].) Moreover, the court selected the midterm for the unlawful possession of ammunition charge. As such, the appropriate remedy is to stay execution of the sentence on the conviction for unlawful possession of ammunition. (See § 654; see also People v. Relkin (2016) 6 Cal.App.5th 1188, 1198 ["to effectuate section 654, the trial court must impose a full term and stay execution of that term"].)
VI
We will next address defendant's argument that the trial court violated his right to due process and the federal and state constitutional prohibitions on excessive fines by imposing fines and fees without holding a hearing to determine his ability to pay them. This argument relies primarily on Dueñas, which held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that "although . . . section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.) Defendant requests that we strike or stay the fines and fees, pending a hearing on his ability to pay.
The People argue defendant forfeited his Dueñas claim by failing to object on due process grounds or even express any concern about inability to pay in the trial court. The People further argue defendant's restitution fines are constitutional, but they do not seek to uphold the imposition of the nonpunitive fines against defendant, should he be unable to pay.
A. Dueñas was wrongly decided
Regardless of whether defendant forfeited the issue, we are not persuaded the analysis used in Dueñas is correct. Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court operations and court facilities assessments under section 1465.8 and Government Code section 70373.5. (Kopp, at pp. 95-96.)
In the meantime, we join the courts that have concluded that Dueñas was wrongly decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-282; People v. Hicks (2019) 40 Cal.App.5th 320, 326-327, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069, review den. Dec. 11, 2019, S258563 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 923-929, review den. Jan. 2, 2020, S258720 (Caceres).) In support of its due process rationale, Dueñas relies on authorities in which courts have held it is unconstitutional to punish an indigent defendant or impede his access to the courts, solely on the basis of his poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1168, citing In re Antazo (1970) 3 Cal.3d 100, 103-104 [invalidating practice of requiring convicted defendants to serve jail time if they were unable to pay a fine or a penalty assessment], and Griffin v. Illinois (1956) 351 U.S. 12, 16-17, 19-20 [100 L.Ed. 891, 897-898, 899] [striking down a state practice of granting appellate review only to convicted criminal defendants who could afford a trial transcript].) As courts have subsequently noted, the line of authorities in Dueñas addressing an indigent defendant's right of access to courts are inapplicable because the imposition of the challenged fines and assessments did not affect the ability of the defendant in Dueñas to present a defense at trial or to challenge the trial court's rulings on appeal. (Hicks, supra, at p. 326, review granted Nov. 26, 2019, S258946; Kingston, supra, at pp. 279-280; Aviles, supra, at pp. 1068-1069; Caceres, supra, at p. 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038-1039 (conc. opn. of Benke, J.), review den. Sept. 18, 2019, S256881 (Gutierrez).)
Similarly, the authorities cited by Dueñas prohibiting incarceration or additional punishment for indigence alone are also inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Defendant faces at most a civil judgment should he be unable to pay. We disagree that any resulting negative consequences from a civil judgment constitute punishment rising to the level of a due process violation. (See Caceres, at p. 927 ["Dueñas cites no authority for the proposition that [the negative consequences from a civil judgment] constitute 'punishment' rising to the level of a due process violation"]; see also Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.) [fines and fees imposed in Dueñas did not "satisf[y] the traditional due process definition of a taking of life, liberty or property"].)
B. Analysis under the Eighth Amendment
To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the Eighth Amendment's excessive fines clause, which limits the government's power to extract cash payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at pp. 1071-1072.)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (United States v. Bajakajian (1998) 524 U.S. 321, 334 [141 L.Ed.2d 314, 329], superseded on other grounds as explained in United States v. Toro-Barboza (9th Cir. 2012) 673 F.3d 1136, 1154.) To determine whether a fine is excessive in violation of the Eighth Amendment, we consider "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; Gutierrez, supra, 35 Cal.App.5th at pp. 1040-1041 (conc. opn. of Benke, J.).) Accordingly, although ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, at pp. 337-338.) We may review de novo whether a fine is excessive under the Eighth Amendment. (Id. at p. 336, fn. 10.)
We conclude the $1,800 restitution fine, $240 court operations assessment, and $180 court facilities assessment are not grossly disproportionate to defendant's level of culpability and the harm he caused, based on his convictions for maintaining a place for sale/use of a controlled substance, possession of a controlled substance for sale, unlawful possession of a firearm, and unlawful possession of ammunition. Police found defendant with drug paraphernalia and a "considerable amount" of heroin for sale in both June and November 2017, and defendant had an extensive criminal history. In addition, police described the trailer as being "fairly active" with respect to drug-related activity in June 2017, with 15 people coming and going during Officer Sheldon's two and a half hour surveillance of the trailer. During the June 2017 search, police also found four people inside the trailer, and they appeared to be under the influence of heroin. Under the circumstances, the aggregate amount of fines, fees, and assessments is not excessive under the Eighth Amendment.
DISPOSITION
The judgment is modified to stay execution of the sentence imposed on the conviction for unlawful possession of ammunition. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion, including correcting the case number and count numbers, and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. DUARTE, J.