Opinion
NOT TO BE PUBLISHED
APPEAL from the Riverside County Super.Ct.No. SWF016048. F. Paul Dickerson, III, Judge. Affirmed in part, amended in part.
Susan K. Keiser, 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 Peter Quon, Jr., and Lilia E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Adam Lee Spiking appeals after convictions on four drug-related counts. He contends: (1) the trial court erred in sentencing him to prison instead of sending him to the California Rehabilitation Center (CRC) for evaluation; (2) the conviction on count 1 must be reversed because the trial court failed to sua sponte instruct the jury that possession of a controlled substance is a lesser included offense of transportation of that substance; and (3) the trial court imposed an unlawful sentence when it stayed the imposition of punishment on two prison priors rather than striking the priors.
II. FACTS AND PROCEDURAL BACKGROUND
At approximately 2:40 p.m. on January 27, 2006, Corporal Anthony Williams and Deputy Jeremy Klemp of the Riverside County Sheriff’s Department stopped defendant because defendant was riding his bicycle on the wrong side of the road. Corporal Williams and Deputy Klemp, who have experience recognizing the symptoms of controlled substance use, suspected that defendant was under the influence of methamphetamine. Defendant was sweating profusely, his hands were shaking, his speech was accelerated, and his pupils were dilated.
Deputy Klemp asked defendant if defendant had anything illegal on him. Defendant denied possessing anything illegal. The deputy then asked defendant to consent to a search. Defendant consented, and the deputy asked defendant to place his hands behind his back pursuant to normal operating procedure. Defendant refused to put his left hand behind his back, despite two requests by Deputy Klemp. At that time, the deputies saw a plastic baggie in defendant’s left hand. The deputies also saw defendant drop the plastic baggie and attempt to grind its white powdery contents into the ground with his foot. Deputy Klemp then took defendant to the ground with an “armed-bar take down.”
Defendant was arrested and searched. A second baggie containing marijuana was found in defendant’s pocket. The deputies field tested the contents of both baggies. The baggies were later sent to the California Department of Justice crime laboratory, where tests confirmed the contents of the baggies were .21 grams of methamphetamine (the white powdery substance) and 3.16 grams of marijuana. Both quantities were “usable amounts.”
Defendant did not present any evidence in his defense.
A jury found defendant guilty of (1) transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a) (count 1)); (2) possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) (count 2)); (3) attempted destruction of evidence (Penal Code, §§ 664, 135 (count 3)); and (4) unauthorized possession of marijuana (Health & Saf. Code, § 11357, subd. (b) (count 4)). Defendant admitted three prior prison term allegations. The trial court sentenced defendant to a total term of three years in state prison. Defendant received two years, the low term, as to count 1, transportation of a controlled substance. As to count 2, possession of a controlled substance, the court imposed the low term of 16 months, but stayed the term pursuant to Penal Code section 654. Defendant also received a concurrent 30-day sentence on count 3, attempted destruction of evidence, and credit for time served on count 4, possession of marijuana. The court imposed three consecutive one-year enhancements for prior prison terms, but then stayed two of the three terms.
III. DISCUSSION
A. The Trial Court Did Not Err by Sentencing Defendant to State Prison Instead of Referring Him to CRC for Drug Treatment
Defendant alleges that the trial court erred by sentencing him to three years in state prison instead of referring him to CRC for evaluation. He contends the trial court gave an insufficient explanation of its reasons for denying him a chance to be evaluated at the CRC. The People respond that defendant waived his right to appeal to the trial court’s discretionary sentencing decisions by not raising the issue at trial. In addition, the People suggest the record includes many clear statements by the trial court supporting its decision not to refer defendant to the CRC.
1. The waiver doctrine prevents defendant from appealing a sentencing decision that was not objected to at the trial level
Defendant asserts that the trial court’s failure to articulate clearly its reasons for not referring him to the CRC is necessarily a reversible error. However, defendant waived his right to appeal this issue by not objecting during sentencing. In People v. Scott (1994) 9 Cal.4th 331 (Scott), the California Supreme Court stated:
“We conclude that the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.
“Our reasoning is practical and straightforward. Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.” (Scott, supra, 9 Cal.4th at p. 353 .)
Scott is controlling. If defendant was not happy with the trial court’s decision to send him to prison instead of referring him to the CRC, he should have made that objection at the sentencing hearing. (Scott, supra, 9 Cal.4th at p. 353 .) Quite to the contrary, however, defendant’s counsel thanked the trial court and assented to its decision, stating, “And, Your Honor, [the Deputy District Attorney] talks about the law, well, it’s the law that gives Your Honor the discretion to do the right thing, and that’s what you’re doing. And I respect that. And I’m sure [defendant] appreciates that as well, because this case is not worth five years. I know that you could impose five years, six years, seven years, if you wanted to. But you recognize that this [three years] is what the case is worth.”
The “discretion” to which defense counsel was referring in this quotation was admittedly the trial court’s discretion not to impose all of defendant’s prison priors, but this statement indicates that an objection was not made to the imposition of jail time instead of a referral to the CRC. Because no such objection was made, defendant’s right to appeal the trial court’s discretionary decision not to refer him to the CRC has been waived. (Scott, supra, 9 Cal.4th at p. 353.)
2. There is sufficient evidence in the record to support the trial court’s sentence
Despite the fact that defendant’s right to appeal the decision not to refer him to the CRC was waived at trial, even a valid appeal from the trial court’s decision would fail on the merits. As discussed below, the record shows that the CRC was considered and rejected for valid reasons.
Welfare and Institutions Code section 3051 provides in relevant part: “Upon conviction of a defendant for a felony, or following revocation of probation previously granted for a felony, and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for the commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant’s record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.”
The statute envisions a two-step process. First, the trial court must determine if the defendant is an addict or is in imminent danger of becoming an addict. If this determination is made in the affirmative, the defendant is to be referred to the CRC, unless he or she fails the second step. The second step is for the trial court to determine if “the defendant’s record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.” (Welf. & Inst. Code, § 3051)
In this case, there is no dispute that defendant had an addiction problem at the time of trial. He even used drugs on the day of his conviction. The only issue, therefore, is whether the trial court abused its discretion in finding that defendant demonstrated such a pattern of criminality that he was unfit for referral to the CRC.
Because Welfare and Institutions Code section 3051 explicitly vests discretion in the trial court to determine whether evaluation for commitment to a drug rehabilitation facility is appropriate, we use the abuse of discretion standard in reviewing the trial court’s decision. (People v. Masters (2002) 96 Cal.App.4th 700, 705 (Masters).) There is ample evidence in the record to demonstrate that the trial court did not abuse its discretion in refusing to refer defendant to the CRC. The trial court indicated that it considered defendant’s probation report and criminal record in reaching its sentencing decision. Both of these sources are appropriate for assessing whether a defendant has such a pattern of criminality that he is unfit for CRC consideration. (Welf. & Inst. Code, § 3051; People v. Cruz (1990) 217 Cal.App.3d 413, 416.)
We agree with defendant’s contention that a statement of reasons for discretionary decisions made by the trial court is both desirable and mandatory. (Pen. Code, § 1170, subd. (c).) Requiring a rationale demonstrates to the defendant that his sentence was not arbitrarily conceived and permits reasonable review on appeal. (See People v. Lock (1981) 30 Cal.3d 454, 459). However, we disagree with defendant that the trial court in this case failed to give a sufficient rationale. The court gave a statement of reasons during the sentencing hearing. First, the trial court explained that it had read and considered the probation report. The probation report explained that the CRC “would be a viable option” for defendant, but ultimately concluded that based on defendant’s record of eight felony convictions and repeated parole violations, prison was the appropriate option for defendant. Second, the trial court referred to defendant’s criminal history when explaining its sentencing calculus. Finally, the court gave the following rationale statement near the conclusion of the sentencing hearing: “I think a three-year state prison sentence for this conduct certainly sends a very strong message to Mr. Spiking, but also is a just sentence, given his history and given what happened, because he’s not getting probation, he’s not getting Proposition 36. He is going to state prison. And it does reflect the fact that he has a history, and it’s double what his offer was.”
This statement indicates that the trial court validly used the defendant’s criminal history to conclude that prison time was appropriate and that a referral to the CRC was not.
In Masters, supra, 96 Cal.App.4th at p. 706, the court held that a trial court “must state the reasons for its choice” not to refer an addicted defendant to the CRC and “may not merely parrot the phrase ‘excessive criminality.’” Furthermore, the court held that it does not matter if the trial court uses any “magic words such as ‘pattern of criminality’ or even whether the court itself recites on the record each and every fact in support of its sentencing choice.” (Ibid.) The important thing to consider is if the record shows where a trial court looked to determine if the defendant demonstrated a pattern of criminality that would make him unfit for the CRC. (Ibid.) We agree with the holding of Masters. In the case at bar, the trial court indicated that it had reviewed the parole report and the criminal history of defendant before reaching its conclusion. The probation report, history of parole violations, and criminal record were all appropriate considerations. (Welf. & Inst. Code, § 3051.)
The fact that defendant does not like his sentence does not mean that the trial court abused its discretion. On the record before us, the trial court did not abuse its discretion in finding that the defendant demonstrates a pattern of criminality that makes him unfit for referral to the CRC.
B. The Trial Court Did Not Commit a Reversible Error by Not Instructing the Jury That Possession of a Controlled Substance Is a Lesser Included Offense of Transportation of a Controlled Substance
Defendant contends the trial court should have instructed the jury that possession of a controlled substance is a lesser included offense of transportation of a controlled substance. The People assert that possession is not a lesser included offense of transportation and that any instruction to that effect would be erroneous.
To support his argument that possession is a lesser included offense of transportation, defendant relies on a footnote in People v. Rogers (1971) 5 Cal.3d 129, 134 (Rogers),in which the court noted: “In cases where defendant’s possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges.” (Rogers, supra, at p. 134, fn. 3.) As explained post, we do not believe this footnote compels the conclusion that multiple convictions are precluded. (See People v. Watterson (1991) 234 Cal.App.3d 942, 945 [holding that separate convictions for possession and transportation were proper because possession was not necessarily included in the offense of transportation as statutorily defined or as charged in the information].)
Because the footnote cited in Rogers was not essential to its holding, it is dicta. (Watterson, supra, 234 Cal.App.3d at p. 945.) Notwithstanding that fact, the cases cited in Rogers to support the contention that multiple convictions are precluded are inconsistent with each other. (Watterson, supra, at p. 945.) Central to the court’s analysis were People v. Solo (1970) 8 Cal.App.3d 201, 206 (Solo), People v. Richardson (1970) 6 Cal.App.3d 70, 78 (Richardson), and People v. Johnson (1970) 5 Cal.App.3d 844, 847 (Johnson). “While the courts in Richardson and Johnson did hold that a defendant cannot be convicted of both possession and transportation, the court in Solo held simply that Penal Code section 654 precluded multiple punishment.” (Watterson, supra, at p. 945.) The court in Richardson also expressed uncertainty as to whether multiple convictions were necessarily precluded or if the courts should merely avoid imposing multiple punishments. (Watterson, supra, at p. 945.) The line between these two concepts has often been blurred. (Id. at p. 946.) However, a close analysis of the statutory language should clear up the confusion. Penal Code section 954 states, “[a]n accusatory pleading may charge . . . different statements of the same offense” and “the defendant may be convicted of any number of the offenses charged.” Penal Code section 654 states, “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.” These provisions indicate that multiple convictions stemming from the same course of conduct are not problematic, whereas multiple punishments are. (Pen. Code, §§ 654, 954.)
The court in Watterson also noted that the Rogers case is additionally troublesome because two of the cases vital to its holding cited People v. Roberts (1953) 40 Cal.2d 483 (Roberts), a case decided under a different statutory framework. (Watterson, supra, 234 Cal.App.3d at p. 945.) Specifically, Richardson and Johnson used Roberts to support the idea that multiple convictions were necessarily precluded. (Watterson, supra, at p. 945.) At the time of the Roberts decision, however, possession and transportation were punishable under the same statute and were not defined as separate offenses. (See Watterson, supra, at pp. 945-946.) “Thus the reason the Roberts court held that a defendant could not be convicted of both possession and transportation was not because one offense was necessarily included in the other offense but rather because under the statute there was but one offense.” (Watterson, supra, at p. 946.) Due to the fact that the footnote in Rogers was mere dicta and because the cases it cited are themselves contradictory, we choose not to rely on the court’s comments as cited by defendant.
In more recent California Supreme Court cases, the high court reexamined the issue of multiple convictions. (People v. Pearson (1986) 42 Cal.3d 351 (Pearson).) It held that multiple convictions are precluded when one offense is necessarily included in another offense. (Id. at p. 355.) The court found that if one offense cannot be committed without necessarily committing another offense, the latter offense is necessarily included in the first. (Ibid.) Thus, “while grand theft is a necessarily included offense of robbery because robbery cannot be committed without also necessarily committing theft, the offense of lewd conduct is not necessarily included in the offense of sodomy because one can commit sodomy without having the specific intent required for the offense of committing lewd conduct. (Watterson, supra, 234 Cal.App.3d at p. 946.)
Applying this standard to the case at bar, we conclude that the possession of methamphetamine is not necessarily included in the offense of transportation of narcotics. “[W]hile possession of a controlled substance is often a circumstance tending to prove transportation, possession is not an essential element of the offense of transportation of narcotics.” (Watterson, supra, 234 Cal.App.3d at p. 947.) One can transport drugs without being in possession of them. One could arrange or be complicit in a drug transportation scheme without ever having possession of a controlled substance. Therefore, possession is not a lesser included offense of transportation. (See Watterson, supra, at p. 946; Pearson, supra, 42 Cal.3d at p. 355.)
Finally, defendant cites Beck v. Alabama (1980) 447 U.S. 625, 634 (Beck), Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 818-819, and Vujosevic v. Rafferty (3rd Cir. N.J. 1988) 844 F.2d 1023, 1027-1028 to support the contention that the trial court had a duty to sua sponte instruct the jury that possession is a lesser included offense of transportation. Defendant misinterprets the holdings in these cases. For example, the defendant in Beck was convicted of the capital crime of robbery-intentional killing. (Beck, supra,447 U.S. at p. 627.) The defendant appealed his conviction because the trial court failed to instruct the jury as to the possibility of conviction for the lesser included offense of felony murder, a noncapital murder that lacked the specific intent of the Alabama death penalty statute. (Id. at pp. 627-628.) The Beck defendant was not charged with any lesser offense. (Ibid.) Therefore, the jury was forced to either convict the defendant of capital murder, or acquit him altogether. (Id. at p. 630.) This is the “all-or-nothing” decision to which defendant alludes. However, that scenario is not comparable to the facts of the case at bar. Here, defendant was charged with both possession and transportation. The jury could easily have found defendant guilty of possession and not of transportation. Applying the analyses from Rogers and Watterson, ante, the jury could also have convicted defendant of transportation and not possession, since the two are not inextricably linked. (See Watterson, supra, 234 Cal.App.3d at p. 946.) There was not an “all-or-nothing” decision in this case due to the fact that both charges were squarely before the jury.
Because (1) possession is not a lesser included offense of transportation, (2) defendant was punished only for the more serious offense of transportation, and (3) the jury was not forced into an “all-or-nothing” decision, there was no error as to the trial court’s failure to give an instruction on possession as a lesser included offense. Judgment is affirmed as to counts 1 and 2.
C. The Two Stayed Prison Prior Enhancements Are Stricken
Both parties acknowledge that a trial court must either impose the one-year enhancement for a prison prior or strike it after providing a rationale. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 (Langston) [“the trial court may not stay the one-year enhancement, which is mandatory unless stricken]; People v. Campbell (1999) 76 Cal.App.4th305, 311 [“the court must either impose the prior prison enhancements or strike them”]; People v. Jones (1992) 8 Cal.App.4th 756, 758; [“but the court should have followed the statutory directive and stricken the enhancement term, stating its reasons therefor”].) However, the People contend that an unauthorized sentence requires remand to the trial court while defendant asserts that there is sufficient evidence in the record to demonstrate the intentions of the trial court. We agree with defendant.
The trial court must provide a rationale for using its discretion to strike a mandatory prison prior. (People v. Jordan (2003) 108 Cal.App.4th 349, 368.) Here, the trial court listed a plethora of reasons for not imposing two of the three 1-year enhancements that defendant faced. However, the trial court erred in stating the court “must impose [the enhancement], but then [] stay it.” Because the record indicates that the trial court opposed the imposition of two of the three prison prior enhancements and stated adequate reasons for that choice, we will therefore order that those two enhancements be stricken. (Langston, supra, 33 Cal.4th at p. 1241.)
The trial court stated the following reasons for not imposing two of the one-year enhancements: (1) the small amount of substance involved; (2) the fact that appellant used a bicycle, not a car, to transport drugs; (3) defendant would have been eligible for Proposition 36 treatment were it not for the Penal Code section 135 misdemeanor; (4) defendant successfully completed a Salvation Army program; (5) defendant had been gainfully employed; (6) it was not a crime of violence; and (7) five years in prison is “too long” for the offenses in question.
IV. DISPOSITION
The stayed prison prior enhancements are stricken. The trial court shall forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment showing the modified sentence. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., KING, J.