Opinion
E043704.
2-27-2009
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS RAMIREZ, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.]
Not to be Published in Official Reports
When sheriffs deputies searched the house where defendant was living with his mother, defendant was cooperative; he told them exactly where they would find drugs and weapons. The drugs — about an ounce and a half of methamphetamine — were found in a closet in defendants bedroom; a weapon — a sawed-off shotgun — was found in a light fixture in the ceiling of a bathroom. According to a deputy, defendant admitted ownership of both.
As a result, defendant was found guilty as follows:
Count 1: Possession of methamphetamine for sale (Health & Saf. Code, § 11378), with an enhancement for being personally armed in the commission of a drug-related offense (Pen. Code, § 12022, subd. (c)) and enhancements for two prior drug-related convictions (Health & Saf. Code, § 11370.2);
As we will discuss further in part V, post, in alleging the prior drug-related conviction enhancement, the information cited Health and Safety Code section 11370.2, subdivision (a), but the applicable statute was actually Health and Safety Code section 11370.2, subdivision (c).
Count 2: Possession of a sawed-off shotgun (Pen. Code, § 12020, subd. (a)(1)); and
Count 3: Possession of a firearm, namely, a sawed-off shotgun, after being convicted of a felony (Pen. Code, § 12021, subd. (a)(1)).
The trial court sentenced defendant to a total of nine years four months in prison.
In this appeal, defendant contends:
1. The trial court should have granted defendants motion to quash the search warrant because the warrant was based on an informants uncorroborated statements.
2. There was insufficient evidence to support the personal arming enhancement.
3. The trial court failed to instruct that the personal arming enhancement required a "facilitative nexus" between the presence of the firearm and the underlying offense.
4. There was insufficient evidence to support the prior drug-related conviction enhancements.
5. Once the trial court imposed the personal arming enhancement to count 1, Penal Code section 654 required it to stay the sentences imposed on counts 2 and 3.
6. The trial court violated the Sixth Amendment in imposing upper terms.
7. The trial court violated the Sixth Amendment in making its implied findings for purposes of Penal Code section 654.
The People concede that the trial court should have stayed the sentence on either count 2 or count 3 but dispute that it should have stayed both. Meanwhile, the People contend that the trial court imposed an unauthorized sentence by staying the prior drug-related conviction enhancements.
We accept the Peoples concession; otherwise, we reject defendants contentions. We also agree with the Peoples contention. Accordingly, we must reverse the judgment, solely in these limited respects, and remand for resentencing.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
On November 29, 2004, sheriffs deputies executed a search warrant at a house at 33275 Lorimer Street in Lake Elsinore. Defendant, his mother, and his girlfriend were inside. The deputies detained and handcuffed them and had them sit in the living room.
After Deputy Michelle Larson explained why the officers were there, defendant told her where she would find "dope and weapons." He said there was a "bag of dope in his bedroom closet on the shelf . . . ." He added that "other items related to narcotics" were in the pockets of his clothing in the closet. He also told her that there was "a shotgun that he had hidden in a light fixture on the second floor." Defendant then "showed [her] several items throughout the house . . . ."
On the second floor, there was a hallway; there were three bedrooms off the hallway. The first bedroom, on the right side of the hallway, was defendants. On a shelf in the closet, there was a plastic bag containing 41.64 grams of methamphetamine. On the same shelf, there was a glass methamphetamine pipe and a bong. There was a gram scale in the closet and another in the bedroom. Empty baggies were found in the pockets of clothing in the closet.
Also in defendants bedroom, there was a list of six first names, next to numbers consistent with quantities and prices of drugs. In the opinion of two officer experts, this was a "pay/owe sheet."
The second bedroom, on the left of the hallway, and an attached bathroom were under construction. The bathroom ceiling drywall had been removed; a light fixture was hanging down. In that light fixture, Deputy Larson found a sawed-off shotgun. She had to use a ladder and "fish[] around in . . . the light fixture." The shotgun appeared to be operable. However, it was not loaded, and no shotgun ammunition was found in the house.
According to Deputy Larson, defendant admitted that the methamphetamine belonged to him. He said that he had been selling methamphetamine for the last six weeks. He also said that he had had the shotgun "for a long time." He "would never consider selling it" because it was dangerous and he "wouldnt want it to go back to the streets."
Two hundred and twenty dollars in cash was found on the kitchen table. Defendant had $67 in cash.
One officer, testifying as an expert, opined that the methamphetamine was possessed for sale. His opinion was based on the large quantity of methamphetamine found, the scales, the baggies, the pay/owe sheet, and the shotgun. The expert also testified that, in cases involving possession of drugs for sale, "[i]ts common for the gun to be placed other than with the dope, so that the things are not associated with each other."
It was stipulated that defendant had a prior felony conviction.
B. Defense Evidence.
Defendants mother, Teresa Ramirez, testified that the house belonged to her. About two months before the search, defendant had moved in with her. In lieu of rent, he had agreed to remodel her bedroom and bathroom.
Before that, defendants younger brother Kenneth Ramirez had been living with defendants mother for about 10 years. While Kenneth was living there, about 10 years before defendant moved in, she found a sawed-off shotgun. Kenneth told her he had "`bought it off the street." She put it away in a closet and forgot about it.
After defendant started working on his mothers bedroom, she handed him the shotgun so that he could put it away in the attic by way of the light fixture. She intended to throw it away afterwards. She never saw defendant with the shotgun after that.
Defendants mother denied that there had been $220 on the kitchen table. She testified that she had withdrawn $220 from the bank for remodeling materials. Before the search, the money was in her purse in her bedroom; after the search, it was missing.
She admitted knowing that defendant used drugs, but she denied seeing him sell methamphetamine. She did not hear defendant tell Deputy Larson that he had been selling methamphetamine for six weeks.
II
SEARCH WARRANT BASED ON INFORMANTS STATEMENTS
Defendant contends that the trial court should have granted his motion to suppress because the challenged search warrant was based on an informants uncorroborated statements.
A. Additional Factual and Procedural Background.
The search warrant was issued on November 29, 2004, based on an affidavit by Deputy Larson. She stated that an informant had told her that, between November 19 and 29, 2004, the informant had seen a bald male Hispanic adult in his 40s, known as "Casper," selling methamphetamine at a house at 33275 Lorimer Street in Lake Elsinore. Deputy Larson had gone to 33275 Lorimer Street and had seen the house.
Based on an interview of the informant, it was Deputy Larsons opinion that the informant had used methamphetamine "on numerous past occasions" and was familiar with its use and sale.
The informant was acting in the hope of receiving payment if the information led to an arrest. The informants identity was confidential because, if it became known, the informant would no longer be able to provide information, and his or her safety might be at risk.
Within the previous year, the same informant had provided information "on numerous occasions where subjects were arrested for felony drug related charges, controlled substances were seized and convictions were obtained."
Defendant filed a motion to quash the warrant and to suppress all evidence seized as a result. (Pen. Code, § 1538.5.) In it, he argued, among other things, that the affidavit failed to show probable cause because the informants information had not been corroborated. The trial court denied the motion.
Defendant has not provided us with a reporters transcript of the hearing at which the motion was denied.
B. Analysis.
"A search warrant must be supported by probable cause. [Citations.]" (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103.) "`[T]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Citation.]" (People v. Murtha (1993) 14 Cal.App.4th 1112, 1122.) "`[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 989.)
Information from an anonymous or untested informant does not provide probable cause unless it has been independently corroborated. (People v. Lucatero (2008) 166 Cal.App.4th 1110, 1114; People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264; see also Florida v. J.L. (2000) 529 U.S. 266, 270 [120 S.Ct. 1375, 146 L.Ed.2d 254] [uncorroborated anonymous tip fails to provide reasonable suspicion for investigative detention].)
On the other hand, information from a tested and reliable informant can provide probable cause all by itself. Or, to put it another way, the fact that the informant has been shown to be reliable in the past is, in itself, a form of corroboration. "`An informants veracity or trustworthiness may be established in a number of ways. If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions. [Citation.] . . . [Citation.]" (People v. Terrones (1989) 212 Cal.App.3d 139, 146-147.)
For example, in People v. Hansborough (1988) 199 Cal.App.3d 579, the affiant stated that a confidential informant had said that he had seen the defendant preparing cocaine for sale and selling cocaine at two specified locations in the preceding five days. He also stated that the informant "`is reliable because he/she gives [sic] me information more than two (2) times in the past month about sales of cocaine, and each time the information has resulted in a search warrant being issued and served, with seizures of quantities of cocaine, arrest and filing with the District Attorneys Office." (Id. at p. 582.) The trial court granted the defendants motion to suppress. (Id. at pp. 582-583.) It found that the informant was reliable, but it nevertheless concluded that there had to be at least some corroboration of the informants statements — "`some showing of [the] veracity of the current information being given." (Id. at p. 583.)
The appellate court reversed. It explained: "[T]he affiant stated the detailed information the informant provided the officers about the location to be searched and defendant. The affiant also stated the informant had twice within the last two months given him information leading to the seizure of cocaine, arrests and the filing of informations with the district attorneys office. The officer further stated the information provided by the informant had not been false or misleading.
"It would have been the better practice for the affiant to have stated the details surrounding the informants reliability in a more factual fashion. However, this court is required to interpret the affidavit in a commonsense, rather than a hypertechnical manner. [Citation.] . . . [¶] Accordingly, this affidavit is sufficiently factual so as to require the trial court and this court to find there is a substantial basis stated in the affidavit for the conclusion there was probable cause to issue the warrant. [Citations.]" (People v. Hansborough, supra, 199 Cal.App.3d at p. 584.)
Similarly, in People v. Mayer (1987) 188 Cal.App.3d 1101, the defendant argued that the search warrant was based on information from an informant whose reliability had not been adequately established. (Id. at p. 1115.) The court held: "The assertion that the informant had given information to the affiant in excess of ten times over the last two years resulting in the issuance of search warrants, the seizure of controlled substances and the arrest of numerous suspects, establishes the reliability of the informant. [Citations.]" (Id. at p. 1117.)
The affidavit here essentially tracked those in Hansborough and Mayer. It established that the informant was familiar with methamphetamine and methamphetamine trafficking. It further established that the informant had a track record of providing truthful and accurate information about drug offenses. This was sufficient to establish that the informant was reliable; no additional corroboration was necessary.
In his reply brief, defendant argues that, even assuming the informant had been reliable in the past, his or her current information was too vague and conclusory to furnish probable cause. He forfeited this argument by failing to raise it in his opening brief. (People v. Failla (2006) 140 Cal.App.4th 1514, 1519, fn. 3 [Fourth Dist., Div. Two].) Even if not forfeited, it lacks merit. The informant stated that, within a recent date range, he or she had personally seen methamphetamine being sold by a carefully described person at a carefully described location. We fail to see what more detail would have added.
Finally, defendant argues that the information was not sufficiently specific because the police had not checked to see whether a person matching the description of "Casper" actually lived at the house. This is just another way of arguing that corroboration was required. Once again, because the informant had a track record of reliability, corroboration was unnecessary.
It is unclear whether defendant matched the informants description of "Casper." Defense counsel claimed that defendant was 29 years old and not bald. At trial, there was evidence that defendants nickname was Casper. No such evidence, however, was introduced in connection with the motion to suppress.
We raise this question primarily to note that it was beside the point. As long as there was sufficient evidence that somebody was selling drugs at the house, there was probable cause to search the house.
We therefore conclude that the trial court properly denied the motion to suppress.
III
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE PERSONAL ARMING ENHANCEMENT
Defendant contends that there was insufficient evidence to support the personal arming enhancement to count 1 (possession of methamphetamine for sale).
This enhancement applies if the defendant "is personally armed with a firearm in the commission of" a specified drug offense (Pen. Code, § 12022, subd. (c)), including possession of methamphetamine for sale (Health & Saf. Code, § 11378).
"`[P]ersonally armed as used in Penal Code section 12022, subdivision (c) . . . refer[s] to the individual who has the firearm on his person or available for offensive or defensive use." (People v. Mendival (1992) 2 Cal.App.4th 562, 574.)
In People v. Bland (1995) 10 Cal.4th 991 (Bland), the Supreme Court explained how a personal arming enhancement applies to a drug possession offense. There, the police searched the defendants house while the defendant was outside, detained in a police car. They found rock cocaine in his bedroom closet and an unloaded assault rifle under his bed. (Id. at p. 995.) A jury found a personal arming enhancement under Penal Code section 12022, subdivision (a)(2), to be true. (Bland, at pp. 995-996.) The Court of Appeal struck the enhancement; it reasoned that, because the defendant was outside the house at the time of the search, the firearm was not available to him for his use. (Id. at p. 996.)
The Supreme Court reversed, holding that there was sufficient evidence to support the personal arming enhancement. (Bland, supra, 10 Cal.4th at pp. 999-1006.) It rejected the Court of Appeals "narrow[] . . . focus" on the time of the search. (Id. at p. 996.) It explained, "Drug possession is . . . a `continuing offense, one that extends through time. . . . [W]hen, at any time during the commission of the felony drug possession, the defendant can resort to a firearm to further that offense, the defendant satisfies the statutory language of being `armed with a firearm in the commission . . . of a felony. [Citation.]" (Id. at p. 999.)
The court cautioned: "[C]ontemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being `armed with a firearm in the commission of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to Californias weapons enhancement law [citation], have described this link as a `facilitative nexus between the drugs and the gun. [Citation.] . . . `[T]he firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. [Citation.] . . . [¶]
"[B]y specifying that the added penalty applies only if the defendant is armed with a firearm `in the commission of the felony offense, [Penal Code] section 12022 implicitly requires both that the `arming take place during the underlying crime and that it have some `facilitative nexus to that offense. Evidence that a firearm is kept in close proximity to illegal drugs satisfies this `facilitative nexus requirement: a firearms presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for `ready access to aid in the drug offense." (Bland, supra, 10 Cal.4th at p. 1002.)
It concluded, "[W]hen the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer: (1) that the defendant knew of the firearms presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant was present with both the drugs and the firearm and thus that the firearm was available for the defendant to put to immediate use to aid in the drug possession. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was `armed with a firearm in the commission of a felony within the meaning of section 12022." (Bland, supra, 10 Cal.4th at pp. 1002-1003.)
Defendant challenges the sufficiency of the evidence of two of the elements of the enhancement, as stated in Bland. "`In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves." (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.) Rather, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict — i.e., evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
First, defendant argues that the shotgun, found in a bathroom, was not in "close proximity" to the drugs, found in defendants bedroom. All three bedrooms in the house were on the second floor. The jury was shown a video of the search, narrated by an officer who indicated that defendants bedroom was "directly . . . across the hall" from the bathroom. He explained that, after he came in the front door, he went up a short flight of steps to a hallway; after he "walked some distance down the hall[way]," there was a bedroom on the right, then a second bedroom on the left, and finally a third bedroom on the right. The first bedroom, on the right, was defendants; the second bedroom, on the left, was the one under construction.
Neither party has requested the transmission of the video to this court. (See Cal. Rules of Court, rule 8.224.)
Admittedly, a different officer testified that defendants bedroom was on the first floor, whereas the bathroom was on the second floor. However, she appears to have been misremembering events that had occurred over two years earlier. Defendants own mother testified that all of the bedrooms were on the second floor.
In sum, the methamphetamine was in a bedroom on one side of the hall; the shotgun was in a bathroom kitty-corner across the hall. An expert testified that it is common for drug dealers to try to keep their firearms somewhat separate from their drugs. From this evidence, the jury could reasonably find that the shotgun was in close proximity to the methamphetamine.
Second, defendant argues that he did not have "ready access" to the shotgun because, to get to it, he would have had to navigate around various obstacles and then use a ladder. However, while there was evidence that, to get to the bathroom, one had to go past "a countertop with a sink standing up against the wall" and "paneling and stuff all stacked up inside," there was no evidence that these items were actually in the way. Likewise, the officers did "ha[ve] to use a ladder" to retrieve the shotgun. However, there was no evidence that they had brought the ladder with them. The ceiling had been removed, and defendants mother testified that when defendant placed the shotgun in the light fixture, "[t]here was a ladder there." Hence, it was fairly inferable that there was a ladder in or near the bathroom.
We therefore conclude that there was sufficient evidence to support the personal arming enhancement.
IV
FAILURE TO INSTRUCT ON THE "FACILITATIVE NEXUS" REQUIREMENT OF THE PERSONAL ARMING ENHANCEMENT
Defendant contends that the trial court failed to instruct the jury that the personal arming enhancement required a "facilitative nexus" between the firearm and the underlying offense.
A. Additional Factual and Procedural Background.
The trial court instructed:
"If you find the defendant guilty of the crime charged in Count I, you must then decide whether the People have proved the additional allegation that the defendant was personally armed with a firearm during the commission of that crime. . . .
"[T]he term `firearm is defined in another instruction.
"A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded. A person is armed with a firearm when that person:
"One. Carries a firearm or has a firearm available for use in either offense or defense;
"And, two. Knows that he or she is carrying the firearm or has it available.
"The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." (Jud. Council of Cal. Crim. Jury Instns. (CALCRIM) No. 3131.)
B. Analysis.
As we discussed in part III, ante, under Bland, a personal arming enhancement requires a "facilitative nexus" between the firearm and the underlying offense. (Bland, supra, 10 Cal.4th at p. 1002.) Defendant therefore argues that CALCRIM No. 3131 is erroneous because it fails to inform the jury of the facilitative nexus requirement. We disagree.
As defendant acknowledges, the Supreme Court recently rejected a similar argument in People v. Pitto (2008) 43 Cal.4th 228 (Pitto). There, the police found both methamphetamine and a handgun in the defendants vehicle. (Id. at pp. 232-233.) The defendant admitted placing the gun in the vehicle, but he testified that he had purchased it so he could kill himself and that he did not use it or intend to use it in connection with any drug offense. (Id. at pp. 233-234 & fn. 2.)
The trial court instructed: "`If you find a defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. . . . The term "armed with a firearm" means knowingly to carry a firearm or have it available for offensive or defensive use." (Pitto, supra, 43 Cal.4th at p. 234, fn. 3, quoting CALJIC No. 17.15.) The jury found true several arming and personal use enhancements under Penal Code section 12022. (Pitto, at pp. 234-235.)
The Supreme Court held that the trial court was not required to instruct sua sponte on the facilitative nexus requirement of Bland. It reasoned essentially that the evidence raised no question of a facilitative nexus: "Bland . . . did not impose an `intent requirement under section 12022, or provide that the purpose with which the gun was placed near the drugs negates the `facilitative nexus that arming requires. [Citation.] We adhere to this view. When (1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) the proximity of the gun to the drugs is not the result of mere accident or happenstance, and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense, the gun facilitates that crime and has the requisite purpose or effect with respect to its commission.
"Here, defendant knew of the handguns presence and location because, as he conceded, he himself had placed the weapon there. By his own testimony, he also knew of the nearby presence and location of the methamphetamine, and its proximity to the gun. Nor was this proximity `accidental or coincidental, for, as already noted, defendant had consciously put the drugs and the gun in those positions. Without doubt, the weapon was readily at hand should he choose to use it to facilitate his perpetration of the drug crimes. The effect of such action is to make the firearm available for use in the possession and transportation of drugs.
"Under these circumstances, defendant was `armed with the gun in the commission of these offenses under section 12022. It does not matter whether, at the particular moment he knowingly placed the gun where it was available for such criminal use, he did so for reasons unrelated to drug possession or trafficking. Regardless of his original motive, the opportunity and incentive to later resort to using the gun in perpetrating the crime is the same. And his deliberate placement of the gun and drugs in juxtaposition to each other negates any claim of accident or coincidence under Bland . . . ." (Pitto, supra, 43 Cal.4th at pp. 239-240, italics added.)
Here, as in Pitto, defendant admittedly knew of the shotguns presence and location; his mother testified that he himself had placed it there (albeit at her request). He also admittedly knew of the presence and location of the methamphetamine. As Pitto teaches us, the fact that defendant had consciously placed the shotgun and the methamphetamine in their respective positions precludes any finding that this placement was accidental or coincidental within the meaning of Bland. Moreover, he had placed them both where they were at roughly the same time; he had to have placed the shotgun in the light fixture within the preceding two months, as that was how long he had been living in his mothers house, and he himself stated that he had been selling methamphetamine for six weeks.
Under these circumstances, the only factual question the jury had to resolve before it could decide whether the necessary facilitative nexus was present was whether the shotgun was in sufficiently close proximity to the methamphetamine so as to be readily available for use in offense or defense. CALCRIM No. 3131, however, squarely presented this factual issue by instructing the jury to determine whether the firearm was "available for use in either offense or defense." The jury evidently resolved this issue against defendant.
We therefore conclude that there was no need to instruct the jury on the "facilitative nexus" requirement of Bland.
V
THE SUFFICIENCY OF THE EVIDENCE OF THE PRIOR DRUG-RELATED CONVICTION ENHANCEMENTS
Defendant contends that there was insufficient evidence to support the prior drug-related conviction enhancements.
A. Additional Factual and Procedural Background.
The information alleged that defendant had prior felony convictions for violations of Health and Safety Code sections 11351 and 11378, "within the meaning of Health and Safety Code section 11370.2, subdivision (a)." After these allegations were bifurcated, defendant admitted both prior convictions.
The trial court imposed — but stayed — a three-year sentence on each of these two enhancements, citing Health and Safety Code section 11370.2, subdivision (a).
B. Analysis.
Health and Safety Code section 11370.2 (section 11370.2) provides for a three-year enhancement when a person convicted of specified drug-related offenses in the current proceeding has previously been convicted of specified drug-related offenses. For reasons best known to the Legislature, the section is divided into three subdivisions, each dealing with a different set of current convictions. Thus, section 11370.2, subdivision (a) (subdivision (a)) applies when the current conviction is for "a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 . . . ." Section 11370.2, subdivision (b) applies when the current conviction is for "a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 . . . ." And section 11370.2, subdivision (c) (subdivision (c)) applies when the current conviction is for "a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing" amphetamine or methamphetamine. (See also Health & Saf. Code, § 11055, subd. (d)(1) & (2).)
Each subdivision applies to the identical list of prior convictions, including prior convictions under Health and Safety Code section 11351 and Health and Safety Code section 11378. (Health & Saf. Code, § 11370.2, subds. (a)-(c).)
In this case, the only current drug-related conviction that was alleged or proved was a violation of Health and Safety Code section 11378 with respect to methamphetamine. Accordingly, the applicable subdivision was subdivision (c), not subdivision (a).
Defendant purports to be challenging only the enhancement based on his prior conviction under Health and Safety Code section 11378, not the enhancement based on his prior conviction under Health and Safety Code section 11351. Both enhancements, however, should have been alleged under subdivision (c) rather than subdivision (a). Accordingly, defendants challenge would appear to apply equally to both.
Defendant frames his argument in terms of insufficiency of the evidence. This is not a genuine issue, however, because he admitted both enhancement allegations. Such an admission, much like a guilty plea, admits every element of the charged enhancement; on appeal, a defendant cannot argue that there was insufficient evidence to support an enhancement that he or she admitted. (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.) "There is no rule . . . which bars the defendant from admitting [an enhancement allegation], even if the prosecution is unable to prove the allegation." (People v. Jackson (1985) 37 Cal.3d 826, 836, overruled on other grounds in People v. Guerrero (1988) 44 Cal.3d 343, 355, as stated in People v. Burton (1989) 48 Cal.3d 843, 863.) Defendant never moved to withdraw his admission below. (See Pen. Code, § 1018.) He has not claimed that his admission was not voluntary and intelligent. (See People v. Howard (1992) 1 Cal.4th 1132, 1180.) Hence, he is bound.
In any event, reversal would require a showing of prejudice. (See People v. Cheaves (2003) 113 Cal.App.4th 445, 451-453 [defendant was not prejudiced by being charged and convicted under Pen. Code, § 148.1, subd. (c), dealing with bomb threats to "any other person," instead of Pen. Code, § 148.1, subd. (a) or (b), dealing with bomb threats to peace officers]; People v. Flynn (1995) 31 Cal.App.4th 1387, 1391-1395 [defendant was not prejudiced by allegation and finding that current conviction was serious felony under Pen. Code, § 1192.7, subd. (c)(8) instead of subd. (c)(23)].) "A contrary holding would encourage defendants and defense counsel to stand mute in the face of the most insignificant clerical errors in hopes of obtaining reversal on appeal." (People v. Carr (1988) 204 Cal.App.3d 774, 780, fn. 7.) Here, any error in proceeding under subdivision (a) rather than subdivision (c) was not prejudicial.
In a related contention, the People argue that the trial court erred by staying — rather then either imposing or striking — these prior drug-related conviction enhancements. They ask us to remand for resentencing. In his reply brief, defendant did not dispute this. We agree with the People. The trial court had the authority to strike the enhancements, for good cause (Pen. Code, § 1385), but it had no authority to stay them. (People v. Lopez (2004) 119 Cal.App.4th 355, 364 [Fourth Dist., Div. Two].) The resulting sentence is unauthorized and subject to correction at any time. (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1124.) We will therefore reverse the judgment in this respect and remand for resentencing.
VI
PENAL CODE SECTION 654Defendant contends that, once the trial court imposed the personal arming enhancement to count 1, Penal Code section 654 (section 654) required it to stay the sentences imposed on count 2 (possession of a sawed-off shotgun) and count 3 (possession of a firearm after a felony conviction).
The People concede that, in light of the sentence on count 2, the sentence on count 3 should have been stayed (or vice versa); they disagree, however, that the personal arming enhancement to count 1 required the trial court to stay the sentence on either count 2 or count 3.
Section 654, subdivision (a), as relevant here, provides: "An 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 test for determining whether section 654 prohibits multiple punishment has long been established: `Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. . . . [Citation.]" (People v. Britt (2004) 32 Cal.4th 944, 951-952.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored `multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, `even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"`A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
"Appellate courts disagree about the application of section 654 to enhancements. [Citations.]" (People v. Martinez (2005) 132 Cal.App.4th 531, 535.) "While recognizing this split of authority, the Supreme Court has not yet resolved it . . . ." (People v. Flores (2005) 129 Cal.App.4th 174, 185-186.) This court, however, is on record as holding that section 654 can apply to at least some enhancements. (People v. Moringlane (1982) 127 Cal.App.3d 811, 817-818, disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145.) The People have not asked us to reconsider this position. Accordingly, we adhere to it as a matter of stare decisis.
When a defendant has been convicted of both unlawful possession of a firearm and an offense involving the use of (or arming with) the same firearm, the test for the application of section 654 is fairly clear: "`[W]here the evidence shows a possession distinctly antecedent [to] and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper . . . ." (People v. Bradford (1976) 17 Cal.3d 8, 22; accord, People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408-1414 [Fourth Dist., Div. Two].)
Here, defendant told police that he had only been selling methamphetamine for six weeks. He also told them that he had had the shotgun "a long time." Thus, it was fairly inferable that his unlawful possession (count 2 & count 3) was distinctly antecedent to and separate from the primary offense plus enhancement of possessing methamphetamine for sale while armed with a firearm (count 1).
The Peoples concession that the trial court was required to stay the sentence on either count 2 or count 3 is well founded (People v. Scheidt (1991) 231 Cal.App.3d 162, 170; People v. Perry (1974) 42 Cal.App.3d 451, 456-457), and we accept it. We will direct the trial court to correct this error on remand. We conclude, however, that the trial court was not required to stay the sentence on both count 2 and count 3.
VII
APPRENDI/BLAKELY/CUNNINGHAM ISSUES
Defendant raises several contentions arising out of the principle that the Sixth Amendment requires that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
A. Application to Upper Terms.
Defendant contends that the trial court violated the Sixth Amendment in imposing upper terms.
1. Additional factual and procedural background.
Aside from minor vehicular offenses, defendant had the following prior convictions:
1. October 1993: Grand theft (Pen. Code, §§ 484, 487), as a misdemeanor.
2. March 1995: Receiving stolen property (Pen. Code, § 496), as a felony.
3. February 1997: Simple possession of a controlled substance (Health & Saf. Code, § 11351) and possession of a controlled substance for sale (Health & Saf. Code, § 11378), both felonies.
The probation report recommended upper-term sentences, based on the following three aggravating factors:
The probation report noted that defendant was armed (Cal. Rules of Court, rule 4.421(a)(2)) but recognized that this could not be used as an aggravating factor because it had already been used as an enhancement. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).)
1. The manner in which the crime was carried out indicated planning, sophistication, or professionalism. (Cal. Rules of Court, rule 4.421(a)(8).)
2. The crime involved a large quantity of contraband. (Cal. Rules of Court, rule 4.421(a)(10).)
3. Defendants prior convictions were numerous or of increasing seriousness. (Cal. Rules of Court, rule 4.421(b)(2).)
It noted a single mitigating factor — that defendants prior performance on probation or parole had been satisfactory. (Cal. Rules of Court, rule 4.423(b)(6).)
On count 1 (possession of methamphetamine for sale), the trial court sentenced defendant to the upper term, three years. (See Health & Saf. Code, § 11378; Pen. Code, § 18.) On the personal arming enhancement to count 1, it also sentenced defendant to the upper term, five years. (Pen. Code, § 12022, subd. (c).) It did not state any reasons for imposing upper terms, but defense counsel did not object to the courts failure to state reasons.
2. Analysis.
The Sixth Amendment requires that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. 270, 274 [127 S.Ct. 856, 860, 166 L.Ed.2d 856] (Cunningham); Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
Under Californias determinate sentencing law, as it stood when Cunningham was decided, the trial court had to impose the midterm, unless it found aggravating or mitigating factors (former Pen. Code, § 1170, subd. (b)); it could not impose the upper term unless it found that the aggravating factors outweighed the mitigating factors. (Ibid.; former Cal. Rules of Court, rule 4.420(b).) In Cunningham, the United States Supreme Court held that, as a result, the midterm was the relevant statutory maximum; hence, the imposition of the upper term based on facts — other than the fact of a prior conviction — not found by a jury and not found beyond a reasonable doubt violated the Sixth Amendment. (Cunningham v. California, supra, 127 S.Ct. at pp. 868, 871.)
In People v. Black (2007) 41 Cal.4th 799 (Black), however, our Supreme Court held that, if at least one aggravating factor has been established consistent with the Sixth Amendment, so that the defendant is eligible for the upper term, the upper term becomes the relevant statutory maximum. (Black, at pp. 812-816.) Hence, once the trial court finds a prior conviction as an aggravating factor, as it is allowed to do under the prior conviction exception, then it is also allowed to find other aggravating factors that would otherwise have to be found by a jury. (Id. at pp. 818-820.) Moreover, under Black, the prior conviction exception encompasses "other related issues that may be determined by examining the records of the prior convictions," including whether those convictions are numerous or increasingly serious. (Id. at pp. 819-820; accord, People v. Wilson (2008) 44 Cal.4th 758, 812; People v. Towne (2008) 44 Cal.4th 63, 75-76.)
Here, the trial court failed to state reasons for imposing upper-term sentences. Although this was an error of state law (Pen. Code, § 1170, subds. (b) & (c); Cal. Rules of Court, rule 4.420(e)), defense counsel forfeited the error for purposes of appeal by failing to raise it below. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) "On appeal, we presume that a judgment or order of the trial court is correct, `"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 637-638.) Thus, we may fairly presume that the trial court found all of the aggravating factors that were supported by the evidence. These included the fact that, as the probation report recommended, defendants prior convictions were numerous or increasingly serious.
Under Black, the trial court could properly make this finding. The finding made defendant eligible for the upper term. Accordingly, and again under Black, the trial court could also properly find that the manner in which the crime was carried out indicated planning, sophistication, or professionalism; that the crime involved a large quantity of contraband; and that these aggravating factors outweighed any mitigating factors.
Defendant argues that Black was wrongly decided, for two reasons.
First, he argues that the prior conviction exception, originally established in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350], is no longer valid. He claims that five justices of the United States Supreme Court would vote to eliminate the prior conviction exception entirely. Even so assuming, that court as a whole has not done so. As the Supreme Court has stated, "if the `precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. [Citation.]" (Tenet v. Doe (2005) 544 U.S. 1, 10-11 [125 S.Ct. 1230, 161 L.Ed.2d 82].)
Second, he argues that Black erred by construing the prior conviction exception as encompassing the fact that prior convictions are numerous or increasingly serious. He relies on Shepard v. United States (2005) 544 U.S. 13 [125 S.Ct. 1254, 161 L.Ed.2d 205] (Shepard). Even before Black, however, our Supreme Court had already held that Shepard did not preclude such a construction of the prior conviction exception. (People v. McGee (2006) 38 Cal.4th 682, 707-708.) In any event, we are bound by Black unless and until either the United States Supreme Court or the California Supreme Court rules otherwise.
We therefore conclude that the trial courts imposition of upper-term sentences did not violate the Sixth Amendment.
B. Application to Section 654 Findings.
Defendant also contends that the trial court violated the Sixth Amendment in making its implied findings for purposes of section 654. A section 654 finding, however, does not increase the maximum statutory penalty for the particular crimes. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1229.) We therefore conclude that the trial courts determination not to stay any terms pursuant to section 654 did not violate the Sixth Amendment.
VIII
DISPOSITION
The judgment with respect to sentencing is reversed, based solely on the trial courts errors in (1) staying, rather than either imposing or striking, the prior drug-related conviction enhancements to count 1 (see part VI, ante) and (2) failing to stay the sentence imposed on either count 2 or count 3 (see part VII, ante). In all other respects, the judgment is affirmed. The trial court is directed to resentence defendant.
We concur:
RAMIREZ, P.J.
GAUT, J.