Opinion
F059914 Super. Ct. No. 1407543
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. ALARIC ANTHONY SIMS, Defendant and Appellant.
Kelly Lynn Babineau, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .
OPINION
THE COURT
Before Levy, Acting P.J., Kane, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.
Retired Judge of the Stanislaus Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Kelly Lynn Babineau, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Alaric Anthony Sims, of possession of cocaine base for purposes of sale (Health & Saf. Code, § 11351.5), and in a separate proceeding, the court found true enhancement allegations that appellant had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)) and had suffered a prior conviction of one of the drug-related offenses listed in Health and Safety Code section 11370.2, subdivision (a) (section 11370.2(a)), viz., possession of a controlled substance (Health & Saf. Code, § 11351). The court imposed a prison term of nine years, consisting of the five-year upper term on the substantive offense, three years on the section 11370.2(a) enhancement and one year on the prior prison term enhancement.
Except as otherwise indicated, all statutory references are to the Health and Safety Code.
On appeal, appellant contends (1) the court abused its discretion in allowing the prosecution to amend the information at trial to allege the violation of section 11351.5; and (2) the different sentencing ranges for possession of cocaine base for sale (§ 11351.5) and possession of cocaine powder for sale (§ 11351) violated appellant's constitutional rights to equal protection and substantive due process. We affirm.
Cocaine base, also called crack or rock cocaine, the chemical compound covered by section 11351.5, is chemically related, but not identical, to cocaine hydrochloride, also called powder cocaine and sometimes referred to simply as cocaine, the compound covered by section 11351. (People v. Ward (2008) 167 Cal.App.4th 252, 259 (Ward); People v. Howell (1990) 226 Cal.App.3d 254, 260-261.) As indicated above, "The Legislature has elected to treat these related compounds [citation] as different drugs." (Ward, supra, 167 Cal.App.4th at p. 259.) For the sake of brevity and in keeping with common practice, we use the word cocaine to refer to cocaine hydrochloride.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
At approximately 11:30 p.m. on August 28, 2009, Stanislaus County Sheriff's Deputy James Riley was on patrol with his partner when he saw appellant, whom he recognized from previous contacts, crouched down by a vehicle in a motel parking lot. Deputy Riley approached appellant and spoke with him. Appellant denied that he was staying at the motel. However, a search of appellant's person revealed that he had in his possession a key which, the deputy discovered, opened the door to Room 6 of the motel. The manager of the motel testified that appellant "frequented" Room 6, but that the room was rented to another person that night.
When confronted with the information that the key in his possession opened the door to Room 6, appellant told Deputy Riley he was not staying at the motel, but he did have a bag in that room. In a search of the room, Deputy Riley found four bindles containing what he thought was "crack cocaine," a scale, four boxes of sandwich bags, and clothes that appeared to fit appellant. A criminalist employed by the California Department of Justice testified that the four bindles contained a total of 5.77 grams of a "rock-like material"; he tested a sample from each bindle; and each sample tested positive for cocaine base.
Procedural Background
It was alleged in the first amended information filed November 2, 2009, that appellant committed a violation of section 11351 in that he had "in his possession for purpose of sale a controlled substance, to wit, cocaine."
At the preliminary hearing, the parties "stipulate[d] for purposes of prelim only that the items received by the police and sent to the Department of Justice were tested and returned, 5.77 grams of cocaine."
After the jury heard that stipulation and after the parties had rested, the court announced it would address the issue of "the Second Amended Information, which the People have presented at this time, correcting the charge from 11350 [sic]to 11351.5." The prosecutor argued: "The 11351 as originally charged applies to cocaine and more specifically to cocaine hydrochloride, powdered form. After the DOJ results indicating cocaine base and the testimony that we've had, the People are in the position that the proper Health and Safety Code Section is 11351.5, which goes specifically to cocaine base, and we're asking to amend the Information to conform with the evidence."
The defense objected on the following grounds: (1) it had been known "for quite some time" that the substance in question was cocaine base; (2) charging appellant with possession of cocaine base put him "in [the] difficult position" of facing an increase in his sentencing exposure "at this late date in the trial"; and (3) the disparity in the prescribed sentences for sections 11351 and 11351.5 violates the constitutional guarantee of equal protection of the laws.
Violation of section 11351 is punishable by a prison sentence of two, three or four years (§ 11351), whereas the sentencing triad for section 11351.5 is three, four or five years (§ 11351.5).
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In granting the prosecution's motion the court stated: "As far as the ... issue ... [of] timeliness, of course, it would have been better to have discovered the error earlier, if possible, but at this point, I don't believe there's been any impact on the fairness of the trial. Certainly [the substance has] always been characterized as rock cocaine all along. Everybody dealt with it that way, didn't affect the evidence or the questioning of witnesses in this case. It would have been no different if it had been discovered sooner. There's no need for additional preparation or additional witnesses based on that change. So ... I guess I would call it a minor change to conform with the evidence. So I don't see any due process concerns with the amendment. [¶] But it does change the triad, and that is correct, and there was some degree of reliance on the 11350 [sic] triad.... [B]ut that I think it could be an issue that can be addressed at the time of sentencing. It wouldn't affect the conduct of the trial in any fashion." The court also rejected appellant's equal protection argument.
DISCUSSION
Amendment of First Amended Information
Penal Code section 1009 provides that "the court in which an action is pending may order or permit an amendment of an indictment, accusation or information, ... for any defect or insufficiency, at any stage of the proceedings," subject to the following exception: "An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." (Italics added.)
Appellant contends the court abused its discretion in granting the prosecution's motion to permit amendment of the first amended information to substitute a charge of violating section 11351.5 for the charge of violating section 11351 because the former offense was not shown by the evidence taken at the preliminary hearing. We disagree.
We find instructive People v. Garcia (1966) 240 Cal.App.2d 9 (Garcia). In that case, the defendant was indicted for the sale of heroin, but at trial, evidence was presented that the substance in question was marijuana. Over defense objection, the court granted a prosecution motion to amend the indictment to substitute marijuana for heroin, with corresponding changes in the applicable code sections. The defendant was convicted following a court trial, he moved for a new trial, the motion was granted, and in the second trial he was again convicted of sale of marijuana. In the appeal that followed, the defendant argued, inter alia, that "the court had no power to amend the indictment." (Id. at p. 11.)
The court noted that "[i]t is not contended that the amendment of the indictment was prejudicial ...." (Garcia, supra, 240 Cal.App.2d at p. 11.) The defendant "had ample time to prepare for the second trial" and "[h]e knew from the evidence in the first trial what he would be confronted with in the second trial." (Ibid.)
The court held: "The challenge is to the jurisdiction to permit the amendment and the argument is that it charged a different offense. Although an indictment cannot be amended so as to change the offense charged (Pen. Code, § 1009) both sections 11501 and 11531 make the sale of a narcotic a crime, and for the purpose of pleading, violation of either section is the offense charged; specification of the particular narcotic allegedly sold merely describes the manner in which the law was violated. While this is an essential of an information or indictment, an amendment which substitutes 'heroin' for 'marijuana,' [citation] ... does not charge a different offense, within the meaning of [Penal Code] section 1009. Clearly, there is authority to amend an indictment if the proof of the defendant's acts would be the same under either pleading, as in the present case." (Garcia, supra, 240 Cal.App.2d at p. 11, italics added.)
We recognize, as appellant points out, that Penal Code section 1009 "is not written in the alternative," i.e., the statute prohibits both an amendment of an indictment to charge a new offense, as in Garcia, and the amendment of an information to charge an offense not established at the preliminary hearing. We further recognize, as appellant also points out, that the instant case, unlike Garcia, involves the amendment of an information. However, the reasoning in Garcia is applicable here. For purposes of Penal Code section 1009, an amendment which substitutes one drug for another, whether it is an indictment or an information that is amended, is not significant. As in Garcia and as indicated by the trial court, "the proof of the defendant's acts would be the same under either pleading ...." (Garcia, supra, 240 Cal.App.2d at p. 11.)
Appellant argues Garcia turns on a factor present there but not in the instant case, viz., there were two trials in Garcia and the defendant there "knew from the evidence in the first trial what he would be confronted with in the second trial." (Garcia, supra, 240 Cal.App.2d at p. 11.) This factor does not distinguish Garcia. In our view, the key point, in Garcia and, as recognized by the trial court in the instant case, is that the amendment did not affect the evidence presented and therefore did not affect the fairness of the trial.
Appellant also argues that he was prejudiced by the amendment because "[b]y the trial court's own admission, there had been reliance on the [section] 11350 triad, and Mr. Sims was punished more severely by the amendment, as he received the higher upper term." It is not clear what the trial court meant by its statement that "there was some degree of reliance on the 11350 triad," but it does not appear the court was making a finding of detrimental reliance. Rather, as the court also found, appellant was not prejudiced by the substitution of the charge of violating section 11351.5 because there is nothing to indicate appellant would have presented his defense any differently if a charge of possession of cocaine base had been in place at the beginning of the trial.
"Whether the prosecution should be permitted to amend an information is a matter within the sound discretion of the trial court and its discretion will not be overruled in the absence of a clear abuse thereof." (People v. Massie (1966) 241 Cal.App.2d 812, 819.) "[T]he term judicial discretion 'implies absence of arbitrary determination, capricious disposition or whimsical thinking.'" (People v. Giminez (1975) 14 Cal.3d 68, 72.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)Under the forgoing principles, as demonstrated above, the court did not abuse its discretion in allowing amendment of the first amended information.
Equal Protection and Substantive Due Process
As indicated above, appellant contends the different sentencing ranges for possession of cocaine base for sale and possession of cocaine for sale violate his constitutional rights to equal protection and substantive due process. We disagree.
A legislative classification not touching on a suspect class or a fundamental right does not violate the guarantee of equal protection if it bears a rational relationship to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) Appellant's due process argument "leads to the same inquiry: a rational basis review of the law." (Ward, supra, 167 Cal.App.4th at p. 258.) '"[N]o valid objection to the constitutionality of a statute under the due process clause may be interposed "if it is reasonably related to promoting the public health, safety, comfort, and welfare, and if the means adopted to accomplish that promotion are reasonably appropriate to the purpose." [Citations].'" (Id. at p. 259.)
Ward rejected an equal protection and due process challenge to the disparity in the sentencing ranges for sections 11351 and 11351.5 identical to the challenge appellant raises here. Central to the Ward court's analysis, with which we agree, was the point that cocaine base and cocaine are different substances and that given these differences, it is rational to treat the two substances differently for sentencing purposes. As examples of differences between the two substances relevant for sentencing purposes, the court noted, "'Because it is smoked, crack [cocaine base] has a quicker and more intense effect on the brain than powder cocaine ingested nasally, causing a greater desire for more,' and 'Crack is also sold in smaller quantities and lower unit prices than powder cocaine, thereby reducing the financial barrier which had previously limited cocaine usage.'" (Ward, supra, 167 Cal.App.4th at p. 260.)
Appellant argues, "This rationale is no longer valid." He bases this argument on what he claims (and we have no reason to doubt) was the congressional testimony of an assistant United States Attorney General, the gist of which apparently was that it is a "myth" that cocaine base is more addictive than powder cocaine. This testimony, however, is not part of the record on appeal and therefore we may not consider it. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 ["review on a direct appeal is limited to the appellate record"].) And even if this material was properly before us, the fact, if it be a fact, that cocaine base is no more addictive than cocaine does not refute the two points cited in Ward discussed above, nor does this material do anything more than establish there is some controversy regarding the addictive properties of the two drugs. The cited testimony would not establish that the Legislature's determination that providing for more severe penalties for crimes involving cocaine base than for crimes involving cocaine was irrational. Therefore, appellant's constitutional claims are without merit.
DISPOSITION
The judgment is affirmed.