P. v. Mayes

Filed 10/16/07 P. v. Mayes CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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After the trial court denied his suppression motion, a jury convicted Pro David Mayes of possession of cocaine

base and methamphetamine. (Health & Saf. Code, 11350, subd. (a), 11377, subd. (a).) The trial court found he had a strike and had served a prior prison term. The trial court struck the strike as too old, and sent defendant to prison for four years eight months. Defendant timely filed this appeal.

Defendant contends his suppression motion should have been granted, he was eligible for Proposition 36 treatment, one sentence should have been stayed, and his sentence violates the Sixth Amendment. We shall affirm.

FACTS

On November 4, 2005, defendant possessed cocaine base and methamphetamine. The jury rejected evidence that the amounts indicated possession for sale, but convicted him of

possession of both substances, which defendant had conceded at trial.

DISCUSSION

I. Suppression Motion

Viewed with deference to the trial courts ruling

(People v. Leyba (1981) 29 Cal.3d 591, 596-597), the facts pertaining to the suppression motion are as follows.

At about 10:30 on the night of November 4, 2005, Oroville Police Department Officer DAmato was sent to investigate a complaint that a suspicious male had been in a car in a parking lot at a closed service station and mini mart for several hours. He found defendant in the car and spoke to him. Defendant said that he had pulled into the parking lot about an hour before to disable an air bag light on his car. Officer Sears, who arrived shortly after Officer DAmato, knew defendant and asked him, by name, to get out of the car, which defendant did. After defendant denied possession of any contraband, Officer DAmato asked for and received permission to search defendant. He found methamphetamine in defendants pants pocket.

Defendant claimed he had been ordered out of the car, and argued the order was not justified. The trial court denied the motion to suppress.

Defendant relies on Pennsylvania v. Mimms (1977) 434

U.S. 106 [54 L.Ed.2d 331] (Mimms)and similar cases, which hold that an officer may not order a person out of a car absent good reason, for example, officer safety.

Here, defendant was asked to get out of his car, by an officer who knew him personally and addressed him by name. This was an amicable, consensual, encounter. After defendant got out of his car he was asked if he could be searched and again he consented. There is nothing in the record which shows he was submitting to force or to the authority of the officers when he gave consent. (Cf. 4 Witkin, California Criminal Law (3d ed. 2000) Illegally Obtained Evidence, 58 [submission to authority vitiates consent].)

The suppression motion was properly denied.

II. Proposition 36

A defendant convicted of simple possession of drugs is ordinarily eligible for treatment under Proposition 36. (Pen. Code, 1210.1, subd. (a).) However, the trial court ruled that defendant was ineligible because of his prior strike conviction. On appeal, defendant asserts The 1976 strike washed out after five according to the plain meaning of the statute.

The relevant statute makes the following persons ineligible for treatment under Proposition 36:

(1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person. (Pen. Code, 1210.1, subd. (b).)

A number of concepts are packed into this language.

As relevant here, we must ask whether the present crimes occurred after a period of five years in which the defendant remained free of both prison custody and the commission of (1) felonies other than simple drug possession or (2) misdemeanors involving threats or injury.

The People assert that because defendant was in prison less than five years before committing the present crimes, he is ineligible under Proposition 36. In other words, they look backward from the date of the present crimes.

Defendant asserts that because he remained free of prison custody or new specified crimes for at least one 5-year period after his strike, he is eligible. In other words, he looks forward from the date of his strike.

Defendants position has been rejected by decisions holding that the five-year period must immediately precede the present offense, as the interpretation most consistent with the structure and purpose of Proposition 36. (See People v. Superior Court (Martinez) (2002) 104 Cal.App.4th 692, 698-702; People v Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 81-85; People v. Superior Court (Turner) (2002) 97 Cal.App.4th 1222, 1228-1231; People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 535-537.)

Defendant relies on a misreading of our decision in Moore v. Superior Court (2004) 117 Cal.App.4th 401. There we addressed a different question, namely, when to measure the date of the disqualifying felony, whether by the date of its commission or the date of adjudication of guilt or sentencing for that crime. We concluded the relevant date of the prior felony is the date of its commission, not the date of conviction. (Id. at pp. 406-407.) Contrary to defendants assertion, we did not expressly reject the above line of cases, we reiterated that the Proposition 36 washout period must immediately precede the current nonviolent drug possession offense[.] (Id. at p. 410.)

Because defendant was in prison within the five years immediately preceding his current offenses, he was properly found to be ineligible for treatment under Proposition 36.

III. Other Sentencing Issues

After striking the strike, the trial court imposed the upper term of three years on count 1 (possession of cocaine base) and a consecutive eight months (one-third the midterm) on count 2 (possession of methamphetamine) and added one year for the prior prison term.

On appeal defendant contends the trial court should have stayed the sentence on count 2, and that the upper term and consecutive sentence choices violated his right to a jury trial. We reject each of these contentions.

A. Penal Code section 654

Defendant contends the trial court should not have sentenced him consecutively on count 2, but instead should have imposed but stayed sentence on that count, under Penal Code section 654. We disagree.

Defendant relies on In re Adams (1975) 14 Cal.3d 629, which held that a person who transported several types of drugs had the single objective of delivering all of the drugs to a particular destination. But In re Adams itself distinguished a line of cases which have held that the simultaneous possession of different types of drugsproperly may be multiply punished. (Id. at p. 635.)

One of the cases cited in In reAdams, supra, 14 Cal.3d 629, is a decision of this court, holding in part that The act of possession cannot be conceptualized as a single act covering possession of two kinds of illicit drugs. (People v. Fusaro (1971) 18 Cal.App.3d 877, 893; see also People v. Monarrez (1998) 66 Cal.App.4th 710, 714-715 [The narcotics are separately classified and regulated by the Legislature; they have different effects and pose different hazards to society. The punishment imposed here was entirely fair]; People v. Barger (1974) 40 Cal.App.3d 662, 671-672.) Based on these authorities, we reject defendants claim.

B. Cunningham: Upper Term

The trial court imposed the upper term on count 1 because defendants priors are numerous. Even though I, of course, struck the strike, I certainly can consider his entire record. And his prior performance on probation and parole has been unsatisfactory. No circumstances in mitigation are noted.

On appeal, defendant asserts that imposition of the upper term in his case runs afoul of the decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We disagree.

If one aggravating factor complies with Cunningham, the statutory maximum for the offense is the upper term.

(People v. Black (2007) 41 Cal.4th 799, 812-816.) The trial court in part relied on defendants prior convictions, which are recidivism facts, as to which the Sixth Amendment does not require jury findings. (Id. at pp. 818-820; see People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.)

C. Cunningham: Consecutive Sentencing

The trial court imposed a consecutive sentence on count 2. Defendant asserts that this decision violated the Sixth Amendment. We disagree. (Black, supra, 41 Cal.4th at pp. 820-823.)

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

DAVIS , Acting P.J.

HULL, J.

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