P. v. Fields

Filed 6/12/06 P. v. Fields CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

A jury convicted Edward Charles Fields of possessing methamphetamine for sale (count 1; Health & Saf. Code, § 11378) and possessing marijuana for sale (count 2; Health & Saf. Code, § 11359). The court found he served three prior prison terms (Pen. Code, § 667.5, subd. (b)) and had two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c).

The court sentenced him to nine years in prison, consisting of a two-year midterm for count 1, three years for each of the Health and Safety Code section 11370.2, subdivision (c) enhancements, and one year for one of the prior prison term enhancements. The court imposed a two-year midterm for count 2, but stayed the sentence under Penal Code section 654, and it struck two of the prior prison term enhancements.

On appeal, Fields contends the court erred during sentencing by taking judicial notice, sua sponte, of records from an earlier conviction of his on a drug charge. Fields asserts he is entitled to a new sentencing hearing for reconsideration of his request for the lower term of 16 months on count 1 and a total sentence of no more than five years. We affirm the judgment.

FACTS

On August 19, 2004, police officers searched an apartment in which Fields, who was on parole, was living with Rita Watkins. The officers knocked on the door for about four minutes before Watkins opened it. They found Fields in the bathroom, where water was refilling the toilet tank. They also found $3,965 in cash in the pocket of a man's shirt hanging in the bedroom closet and marijuana and numerous plastic baggies in the bedroom. Fields admitted the cash was his, and he initially said he received it for working. However, when an officer reminded Fields he had claimed he was unemployed, he said the cash was from unemployment.

Watkins had the key to a rental car in her pocket, and with it the officers located the car near the apartment building. During a search they found a rental receipt in Fields's name, three baggies containing marijuana (totaling 11.38 grams), two baggies containing methamphetamine (totaling 34.66 grams) and a digital scale. After his arrest Fields tested positive for methamphetamine. At trial, a detective testified the methamphetamine in Fields's possession was worth approximately $1,200, and in her opinion he held both the methamphetamine and the marijuana for sale.

DISCUSSION

At the beginning of the sentencing hearing, the court advised the parties it had reviewed the record in a 2000 drug conviction of Fields, including the probation report, a statement in mitigation, a psychological evaluation and a letter Fields wrote to Judge So. Fields wrote a letter to Judge Gill in this case, seeking leniency and advising that he had never written a letter to the court before. Fields's 2000 letter to Judge So, however, also stated he had never written to the court before. Judge Gill found Fields lacked credibility based on his "boldface lie" in the second letter to the court. Judge Gill also stated he found the psychological evaluation "very instructive."

Fields contends the court erred by taking judicial notice of his previous case file on its own motion. He concedes the court may take judicial notice of court records (Evid. Code,^[1] § 452, subd. (d)(1)), but he contends that under section 453 the court may do so only pursuant to a party's request. Section 453, however, concerns only compulsory judicial notice on a party's request, and it does not affect the court's discretion to take judicial notice under Evidence Code section 452. "Section 452 includes matters both of law and of fact. The court may take judicial notice of these matters, even when not requested to do so; it is required to notice them if a party requests it and satisfies the requirements of Section 453." (Assem. Com. on Judiciary com., 29B Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 452, p. 448.)

Fields also asserts the court's consideration of the records from his 2000 conviction was improper because it did not notify the parties it intended to do so before the sentencing hearing. Section 455 provides that if the court has or intends to take judicial notice of any matter under section 452 "that is of substantial consequence to the determination of the action," the "court shall afford each party reasonable opportunity . . . to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." (§ 455, subd. (a).) The People contend Fields "received adequate notice that the court could rely upon his prior conviction when the probation report specifically referenced and summarized that case." Fields also complains that the records from his previous conviction contain inadmissible hearsay.

We are not required to decide the substantive issues, however, because Fields never raised any objection at the trial court to its review of or reliance on the 2000 records. Fields's counsel asked Judge Gill whether he would have felt the same way about the letter to the court in this matter if he had not reviewed the 2000 letter to Judge So, but that did not constitute an objection. "[C]laims deemed waived on appeal involve sentences which, through otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (People v. Scott (1994) 9 Cal.4th 331, 354.) "The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law." (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Fields complains that raising an objection at the sentencing hearing "would have been futile." He makes no showing, however, of futility. We conclude Fields waived appellate review of the judicial notice issue.

In any event, even if Fields had preserved the alleged error for appeal, he is not entitled to reversal absent a showing of prejudice. "Reversal is only required where there is a reasonable probability the trial court would sentence the defendant differently absent" the error. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319; Cal. Const., art. VI, § 13.)

Fields does not specify any particular prejudice, and indeed, the court advised the parties that even if it had not read the record from Fields's 2000 conviction it would have selected the same sentence. Further, the probation officer recommended a total sentence of 12 years, including the upper term of three years on count 1, but the court imposed a total of only nine years. The probation report listed six factors in aggravation, including that Fields's "prior convictions as an adult are numerous in that he has five prior misdemeanor convictions and five prior felony convictions." The report also noted his criminal history is "specifically in major drug dealing" and his "prior performance on probation was unsatisfactory." The report does not include any factor in mitigation.^[2]

Absent the court's review of the 2000 records, it is unlikely the sentence would have been more favorable to Fields.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

IRION, J.

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^[1] All further statutory references are to the Evidence Code.

^[2] The court did receive several letters in support of Fields.