P. v. Perkins

Filed 11/14/08 P. v. Perkins CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard S. Kemalyan, Judge. Affirmed in part as modified and reversed in part.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

The jury found defendant Michael Perkins guilty of sale of narcotics (Health & Saf. Code, 11352, subd. (a)).^[1] Defendant admitted one prior sale of narcotics conviction alleged pursuant to section 11370.2, subdivision (a). Defendant was sentenced to seven years in state prison, consisting of the midterm of four years plus three years for the prior conviction. He was ordered to pay $1,050 in attorney fees pursuant to Penal Code section 987.8.^[2] Defendant timely appealed.

Defendant contends substantial evidence does not support the verdict. He further contends the imposition of attorney fees was an abuse of discretion. Respondent agrees the imposition of attorney fees was improper, but contends certain other mandatory fees must be imposed. We reverse the order for attorney fees, order the additional mandatory fees to be imposed, and in all other respects, affirm the judgment.

STATEMENT OF FACTS

Prosecution Case

Los Angeles Police Officer Hector Diaz was assigned to the Narcotics Division Buy Team working undercover on November 1, 2007. At 5:10 in the afternoon, he observed defendant and Earl Pitts^[3]standing next to each other on Stanford Street about 50 feet north of 7th Street. A male placed an unknown amount of money into defendants hand. [I]mmediately following that, . . . Pitts placed an off-white solid resembling rock cocaine in the hand of the other male[,] and the male walked away.

At that point, Officer Diaz approached defendant and Pitts and stated to defendant, Let me get a 20, meaning $20 worth of narcotics. Defendant replied, Were out. We have to go to the car and get some more. Defendant and Pitts then walked on Sanford toward 7th, out of Officer Diazs sight. Ten minutes later, Officer Diaz observed defendant and Pitts facing each other and standing at the southeast corner of 7th and Towne, one block from Stanford. Officer Diaz told defendant, I need a 20. Defendant replied, Go wait over there, pointing eastward. Officer Diaz complied. Less than a minute later, defendant and Pitts walked toward Officer Diaz. As defendant continued walking past Officer Diaz, Pitts asked Officer Diaz what he wanted. Officer Diaz replied, 20. Pitts asked for money, and Officer Diaz gave Pitts a prerecorded $20 bill. Pitts gave Officer Diaz four pieces of rock cocaine weighing 0.02 grams each, taken from a small bindle which contained a number of pieces of rock cocaine. The transaction complete, Officer Diaz left and gave a signal to his associate officers to make the arrest.

Los Angeles Police Officer Romeo Rubalcava, while working with the team, observed defendant and Pitts walk together on 7th from Stanford to a blue Crowne Victoria Ford on Towne. Defendant remained on the sidewalk looking up and down the street, as Pitts entered the vehicle and manipulated something in the center console. Defendant and Pitts then walked back to 7th Street.

Los Angeles Police Officer Daniel Ramirez was directed by undercover officers to detain Pitts. He recovered $308 in currency, including the $20 bill paid by Officer Diaz, and 0.28 grams of rock cocaine, in the pockets of Pitts clothing.

Los Angeles Police Officer David Cho arrested defendant within 10 seconds after receiving a call to take defendant into custody. A search of defendant revealed a glass pipe for smoking cocaine base but no money or drugs.

Los Angeles Police Officer Michael Saragueta observed defendant and Pitts together on Stanford north of 7th Street engaged in what appeared to be a hand-to-hand narcotics transaction. He then observed Officer Diaz approach defendant and Pitts and have a short conversation, after which defendant and Pitts walked away together. Five or ten minutes later, defendant and Pitts walked back, and Officer Diaz approached and had another interaction with them. Defendant and Pitts walked away, but eventually met Officer Diaz again. Defendant walked past Officer Diaz and stopped ten feet from Officer Diaz and Pitts. Officer Diaz gave Pitts money and Pitts handed Officer Diaz cocaine base. Then defendant rejoined Pitts, and Pitts walked away while defendant stayed in the area. Officer Diaz gave a signal and uniformed officers quickly arrested defendant and Pitts, who were 50 feet away from defendant.

Defense Case

Los Angeles Police Officer Alfredo Reyes testified that, at 1:45 p.m. on November 1, 2007, he stopped a car defendant was driving at 7th Street and Hill in downtown Los Angeles because the front plate was missing. Upon learning that defendants license had been suspended, Officer Reyes impounded the car and had it towed away. At about 2:05 p.m., defendant was allowed to go.

Defendant argued it was not true that defendant received money during the hand-to-hand sale to the stranger, because defendant was not found with any money on him. He argued he was not a perpetrator because there is no evidence he had any drugs in his possession. He argued there was no evidence of the elements of an aiding and abetting theory.

DISCUSSION

Substantial Evidence Supports The Conviction

Defendant contends the evidence is not sufficient to establish he was guilty of selling narcotics either as a perpetrator or an aider and abettor.^[4] We conclude substantial evidence supports the conviction on both theories.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)  The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) (People v. Rodriguez (1999) 20 Cal.4th 1, 100.) Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Perpetrator

The elements of the offense of sale of narcotics are: (1) sale of narcotics; and (2) knowledge of the presence and nature of the narcotics. (People v. Murphy (2005) 134 Cal.App.4th 1504, 1508, vacated and remanded on another ground in Murphy v. California (2007) _ U.S. _ [127 S.Ct. 1242].) [P]ossession is not an essential element of the sale offense. For example, one can broker a sale of a controlled substance that is within the exclusive possession of another. (Ibid.; see also People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.) The crime[] can be established by circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)

The jury was instructed on the elements of sale of narcotics in violation of section 11352, subdivision (a) in the language of Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 2300 as follows. [T]he People must prove that: [] 1. The defendant sold a controlled substance; [] 2. The defendant knew of its presence; [] 3. The defendant knew of the substances nature or character as a controlled substance; [] 4. The controlled substance was cocaine base. [] Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value. [] The People do not need to prove that the defendant knew which specific controlled substance he sold, only that he was aware of the substances presence and that it was a controlled substance. [] A person does not have to actually hold or touch something to sell it. It is enough if the person has control over it/or the right to control it, either personally or through another person.

Defendant contends there was no evidence he sold cocaine base because he did not possess cocaine base, nor did he have any money on his person at the time of his arrest. We disagree. Defendant was in the area of 7th Street for a period of three hours before the undercover purchase. He and Pitts were observed selling cocaine base to an unknown individual immediately prior to Officer Diazs approach. That sale caused Pitts to run out of any more product to sell. Defendant and Pitts worked together in effecting both sales. The unknown individual gave money to defendant and received drugs from Pitts. Together, defendant and Pitts responded to Officer Diaz, retrieved an additional supply of cocaine base, and returned to Officer Diaz to make the sale. There was evidence defendant acted as look-out both at the car and when the exchange with Officer Diaz of drugs for money took place. Pitts had $308 in cash on him and a quantity of cocaine base when he and defendant were arrested. It could reasonably be inferred from the foregoing that defendant and Pitts were working together selling drugs during an extended period of time that afternoon and had not yet finished. It is also reasonable to infer that defendant would eventually receive his share of the money proceeds, or based on his possession of the glass pipe, drugs from Pitts at the conclusion of their sales. The evidence that payment from the unknown individual to defendant triggered the exchange of the cocaine base and that defendant used the words Were out [of drugs] is additional confirmation that defendant controlled the cocaine base. Possession of the drug is not a requirement.

Aiding and Abetting

[A]n aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 136.)

The jury was instructed in the language of CALCRIM No. 401 on the elements of aiding and abetting as follows. To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove: [] 1. The perpetrator committed the crime; [] 2. The defendant knew that the perpetrator intended to commit the crime; [] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [] and [] 4. The defendants words or conduct did in fact aid and abet the perpetrators commission of the crime. [] Someone aids and abets a crime if he or she knows of the perpetrators unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrators commission of that crime. [] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.

Defendant contends there is no evidence he intended to, and did in fact, aid and abet the commission of the crime. To the contrary, there is substantial evidence that defendant aided and abetted the sale of cocaine base. Defendant was next to Pitts when Officer Diaz approached, and defendant responded on behalf of himself and Pitts to Officer Diazs request to purchase. Defendant waited by the car, looking up and down the street as if he were a look-out, while Pitts retrieved additional cocaine base to sell to Officer Diaz. Defendant instructed Officer Diaz where to wait for the buy. Defendant then waited a short distance away while the buy occurred, as if acting as a look-out again. This is substantial evidence supporting a finding of aiding and abetting the sale.

Imposition of Attorney Fees

The trial court imposed attorney fees on defendant in the amount of $1,050 without notice, a hearing, evidence, or findings. Defendant contends the imposition of attorney fees was an abuse of discretion. Respondent agrees with the contention. We accept the concession.

Defendant asked the trial court to waive the attorney fees, as he would be in prison and had no ability to pay. The trial court stated it had been advised to impose the fees.

A trial court has discretion to impose attorney fees pursuant to Penal Code section 987.8,^[5]after a noticed hearing at which a determination is made of defendants present ability to pay the cost of his representation; however, a defendant sentenced to state prison shall be determined not to have an ability to pay, absent unusual circumstances. (Pen. Code, 987.8.) Defendant was represented by the public defenders office. As $1,050 in attorney fees was summarily imposed with no determination of ability to pay or reasonableness of the fees, and defendant was sentenced to state prison, we conclude the trial court abused its discretion. Accordingly, the attorney fees award must be reversed.

Additional Mandatory Fees

Respondent contends the trial court failed to impose the following mandatory fees: (1) a $50 criminal laboratory analysis fee under section 11372.5, subdivision (a); (2) an $85 fine under Penal Code section 1464, subdivision (a); (3) a $135 fine under Government Code section 76000, subdivision (a); (4) a state surcharge of 20 percent of the criminal laboratory analysis fee, or $10, under Penal Code section 1465.7, subdivision (a); and (5) a $15 state court construction penalty under Government code section 70372, subdivision (a). We agree with the contention; the additional fees, penalty, and surcharge must be imposed. (See People v. McCoy (2007) 156 Cal.App.4th 1246, 1254-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.)

DISPOSITION

The order imposing $1,050 in attorney fees is reversed. The judgment is modified to include a $50 criminal laboratory analysis fee under section 11372.5, subdivision (a), an $85 fine under Penal Code section 1464, subdivision (a), a $135 fine under Government Code section 76000, subdivision (a), a state surcharge of 20 percent of the criminal laboratory analysis fee, or $10, under Penal Code section 1465.7, subdivision (a), and a $15 state court construction penalty under Government Code section 70372, subdivision (a). Upon issuance of the remittitur, the clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the modifications. The judgment is affirmed in all other respects.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] All further statutory references are to the Health and Safety Code, unless otherwise specified.

^[2] Defendant was also ordered to pay a $20 security fee (Pen. Code, 1465.8, subd. (a)(1)) and a restitution fine of $200 (Pen. Code, 1202.4, subd. (b)). A parole restitution fine of $200 (Pen. Code, 1202.45) was imposed and stayed.

^[3] Pitts is not a party to this appeal.

^[4] The prosecutor argued the jury could find defendant guilty either as a perpetrator or an aider and abetter.

^[5] Penal Code section 987.8 provides in pertinent part: (b)  In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided. [] . . . [] (e)  At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following rights: [] (1)  The right to be heard in person. [] (2)  The right to present witnesses and other documentary evidence. [] (3)  The right to confront and cross-examine adverse witnesses. [] (4) The right to have the evidence against him or her disclosed to him or her. [] (5)  The right to a written statement of the findings of the court. [] If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendants financial ability. . . . [] . . . [] (g)  As used in this section: [] . . . [] (2)  Ability to pay means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [] (A)  The defendants present financial position. [] (B)  The defendants reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.