P. v. Pitts

Filed 6/26/07 P. v. Pitts CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John D. Conley, Judge. Judgment affirmed in part, and reversed and remanded in part.

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

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Patrick Vincent Pitts appeals from the judgment sending him to prison for the aggregate period of 25 years to life following a jury trial in which he was convicted of transporting marijuana, possessing marijuana for the purpose of sales, grand theft of an automobile by false pretense, and possession of a forged drivers license.[1] (See 11360, subd. (a), 11359; Pen. Code, 470b, 487, subd. (d)(1).) A subsequent court trial found that Pitts had three prior strike convictions and a prior prison term, although the one-year enhancement for the latter allegation was stricken by the court for sentencing purposes. (Pen. Code,  667, subds. (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d).)    

On appeal, Pitts contends he was deprived of his right to due process when the prosecution amended the information charging his transportation of marijuana but then failed to include reference to the amount that had to exceed 28.5 grams. We disagree. Pitts also contends the abstract of judgment must be corrected because it failed to accurately record the sentencing courts stay of the term on count two (the possession for sale of the marijuana) and instead stayed imposition of the term for count three (the grand theft of the vehicle). The Attorney General responds to this latter issue by noting that the sentencing court imposed an unauthorized sentence when it stayed the term for one count and ordered two other counts to be served concurrently. Pitts replies that the state failed to object to the discretionary finding and thus waived this complaint. We order the abstract corrected to conform to the actual judgment of the court, but, as raised by the Attorney General, one count of the judgment must be reversed and remanded as the courts order imposed an unauthorized sentence.

FACTS

Pitts was driving a 2000 Lincoln Navigator one morning at 90 miles an hour, a speed in excess of the maximum permitted by law. A police officer stopped the sports utility vehicle (SUV) and asked for identification from him. He represented himself to be Curtis Clay and proffered a drivers license in that name to the officer. The officer was suspicious of the license because it appeared to have been altered. Checking with the Department of Motor Vehicles, he determined the license was forged. The officer also learned that the license was used to defraud a few weeks before to purchase a Navigator from a dealership in Downey, California. Pitts was arrested. The officer searched the vehicle, finding a number of falsified identification cards in various names plus a gym bag containing plastic bags of marijuana, totaling far more than 28.5 grams in weight, as stipulated by the parties.[2]

DISCUSSION

1. Amendment of the Information

Pitts argues that the prosecution defectively charged him with a violation of section 11360, subdivision (a), by alleging in the information that [o]n or about March 27, 2005, in violation of Section 11360(a) . . . (SALE OR TRANSPORTATION OF MARIJUANA) a FELONY, PATRICK VINCENT PITTS did unlawfully transport, attempt to transport, import, attempt to import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away marijuana. Specifically, he decries the absence of the element that the amount of marijuana involved must exceed 28.5 grams. The Attorney General replies that technical defects in the pleading are waived by failure to demur. (See People v. Holt (1997) 15 Cal.4th 619, 672 [failure to demur [because] a charging allegation is not sufficiently definite waives any objection . . . [for] [n]otice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate . . . .]; see also Pen. Code,  1012.)

Pitts does not contendindeed, he factually could notthat he was not given advance notice of the actual charge; nor does he opine his defense was hampered due to the defect. He concedes the jury was properly instructed that the amount of the marijuana in question had to exceed 28.5 grams for it to return a guilty verdict on that count. (See CALCRIM No. 2361, as given.) His point is that all essential elements of an offense must be pleaded and found by the jury. (See generally Apprendi v. New Jersey(2000) 530 U.S. 466, 476.) Therefore, when the charging document merely recites the statute but fails to delineate each of the elements, it becomes irrelevanthe arguesthat the jury was properly instructed and found all those elements. In essence, he extracts the pivotal issue of United States v. Brown (10th Cir. 1993) 995 F.2d 1493, 1505, and applies it to his situation. However, the Brown case is not binding on us.[3] On the other hand, we are bound by the language of Penal Code section 952 and People v. Thomas (1987) 43 Cal.3d 818. Both those authorities hold that the information need not state the elements of an offense as long as the charging language sufficiently gives the accused notice of the offense which he or she faces.

Finally, Pitts argues that all the authority cited by the Attorney General predates the opinion of Apprendi, which, he argues, must prevail over all other authority. But Pitts fails to recognize the Apprendi opinion is basically an analysis of sentencing issues and the constitutional protections essential to them. Pleading requirements do not invoke the same concerns or protections.

Alternatively, he argues that United States v. Hill (9th Cir. 2002) 279 F.3d 731 mandates that every element of an offense be pleaded and proved or the conviction must be reversed. But that is a very broad interpretation of the Hill case. Hill established that when a person is charged under federal law as an accessory after the fact, both the charge of accessory and the underlying felony for which he or she assisted the perpetrator in evading arrest must be charged in order to provide defendant [] with constitutionally adequate notice . . . . (Id. at pp. 740-741.) Nonetheless, even the Hill opinion emphasized that [s]o long as a statutes words fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, an indictment that tracks the statute verbatim satisfies the above requirements. (Id. at p. 741.)

The pleading requirements were satisfied in this case. The charging document informed Pitts that he was being charged with a violation of section 11360, subdivision (a) which provides that every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished . . . . Each element of the offense as stated in section 11360, subdivision (a), was detailed in the charging document, as recited above. In another provision of the code, it was provided that if the amount transported was less than 28.5 grams, it was a misdemeanor. (See  11360, subd. (b).) Thus, the amount was not an element of the offense; it was a factual issue to be determined for sentencing considerations. That amount was a fact to which Pitts stipulated, and thus, he waived it for review on appeal. His argument is rejected.

2. Correction of the Abstract of Judgment

Pitts requests that we correct the abstract of judgment because the sentencing court stayed execution of sentence for the term imposed for count 3 pursuant to Penal Code section 654, but did not stay execution of sentence for the term imposed for count 2 as reflected in the abstract. He emphasizes the transcript clearly shows the courts order, and he requests the abstract be corrected to conform to the actual judgment.

Pitts is correct that the abstract of judgment incorrectly records that the term for count 3, instead of the term for count 2, was stayed pursuant to Penal Code section 654. The trial court ordered the 25-years-to-life term for count 2 to be served concurrently but that it was stayed. We order the clerk of the superior court to correct the abstract, so that it reads the term for count 2 is stayed pursuant to Penal Code section 654, not count 3.

The Attorney General responds that a correction is insufficient to remedy the real error: The sentencing court had to order each counts term to be served consecutively to all other terms because the facts underlying counts 1 and 2 were separate and distinct from those supporting counts 3 and 4. In other words, the Attorney General argues the trial court erred when it found the facts and circumstances supporting the crimes charged in counts 1, 2 and 3 occurred on the same occasion and arose from the same set of facts as those supporting count 4. (Cf. Pen. Code,  667, subd. (c)(6).)

Concurrent terms can only be imposed if all counts arose on the same occasion and from the same facts. (See People v. Hendrix (1997) 16 Cal.4th 508, 513.) The Attorney General argues the counts arose from separate events, and the judgment was thus unauthorized, necessitating a remand for resentencing.

Penal Code section 667 provides that [n]otwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: [] (1) There shall not be an aggregate term limitation for purposes of consecutive sentencing . . . . [] (2) Probation for the current offense shall not be granted nor shall execution or imposition of the sentence be suspended for any prior offense. [] (3) The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence. [] (4) There shall not be a commitment to any other facility other than the state

prison. . . . [] (5) The total amount of credits awarded pursuant to . . . [Penal Code] Section 930 . . . shall not exceed one-fifth of the total term of imprisonment imposed . . . . [] (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e). (Italics added.)

The sentencing court explicitly found that all counts arose on the same occasion and from the same operative facts.[4] The Attorney General argues the record fails to support the trial court in this finding: The theft of the Navigator comprising the charge in count 3 occurred on March 4, 2005 whereas the narcotics offenses charged in counts 1 and 2 occurred on March 27, 2005, as did the possession of the forged drivers license in count 4 for which Pitts received the initial 25-years-to-life term. Thus, it is contended, there could not be such a finding as a matter of law for the auto theft charge in count 3,[5] and the sentence for that count is unauthorized.

Rulings under Penal Code section 667, subdivision (c), are reviewedaccording to Pittsunder the deferential abuse of discretion standard. (See People v. McKee (1995) 36 Cal.App.4th 540, 546.) The Attorney General, however, characterizes the issue as unsettled: People v. Durant (1999) 68 Cal.App.4th 1393 declared the issue of the proper standard to be in dispute . . . . [The defendant] contends we must affirm the trial courts ruling if it is supported by substantial evidence. (People v. McKee (1995) 36 Cal.App.4th 540, 545-546, disapproved on another point in People v. Deloza [(1998)18 Cal.4th 585] at p. 600, fn. 10.) The People assert the appeal presents a question of law or a predominately legal mixed question of law and fact which is subject to de novo review. [Citation.] We need not resolve this issue as we find consecutive sentencing was statutorily required under the facts of this case. [] . . . We note . . . that the probation officers reported description of the crimes that occurred at different residences on different streets of the housing complex, in addition to the record at trial that was before the sentencing judge (who was also the trial judge), is sufficient from which time and distance can be inferred for purposes for our review. (Id. at p. 1402, fn. 8.)

Under either the approach employed in McKee or Durant, the courts finding in this case is supported by the record as to counts 1, 2 and 4; it fails completely as to count 3. (See generally People v. Lawrence (2000) 24 Cal.4th 219, 225-233 [two or more felonies must be consecutively served if not committed within close temporal and spatial proximity of one another and not sharing common acts of criminal conduct serving to establish the elements of the current felony].)[6] There was no close temporal and spatial proximity between the acts underlying (People v. Coelho, supra, 89 Cal.App.4th at p. 864, fn. 1) count 3 and those for counts 1, 2 and 4: They occurred three weeks apart and in another county.[7] The criminal acts comprising counts 1, 2 and 4 are clearly not those supporting the charge in count 3. The drivers license which was the focus of the charge in count 4 had to be possessed with the intent to commit a forgery; but it was not the forgery completed on March 4 (i.e., count 3) when Pitts took the Navigator as that crime was already completed when Pitts was found in possession of the license on March 27. The mandatory terms of the statute were clearly and indisputably applicable. (See e.g., People v. Jones (1998) 67 Cal.App.4th 724, 728-729 [consecutive sentences mandated when Jones burglarized a home by stealing a checkbook, used one check to later commit forgery and then subsequently threatened a witness in the burglary case; all three offenses separate for Three Strikes sentencing].)

The judgment should be affirmed nonetheless, Pitts argues, because the state waived the dispute regarding the trial courts finding by failing to object at the sentencing hearing. (See People v. Scott (1994) 9 Cal.4th 331, 353-354.) Had the prosecution objected in a timely fashion to the erroneous conclusion, he contends the error could have been remedied and the judgment correctly entered in the first instance.

Errors resulting in unauthorized sentences are expressly exempted from the Scott waiver rule. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1091.) And under the approach of either McKee or Durant, the trial courts conclusion that count 3 occurred at the same time and place as counts 1 and 4 had no possible support in the record: Counts 1, 2 and 4 occurred on March 27, 2005 in Orange County, whereas the incident resulting in count 3 occurred on March 4, 2005 in Los Angeles County.

The law deprives the trial court of discretion and requires consecutive sentencing only if the current crimes arose on different occasions and out of different sets of operative facts. It is of no import that the record fails to reveal whether or not the offenses occurred on the same occasionif the evidence supports the courts determination that the offenses arose from the same set of operative facts.. . . (People v. Hall (1998) 67 Cal.App.4th 128, 138-139, italics added.)[8] When the charging document indisputably shows the offenses occurred on different dates and places, there is no evidence under any standard which will support a contrary conclusion.

The term for count 3 must be reversed and remanded for resentencing.

DISPOSITION

The judgment is affirmed as to counts 1 and 4. The clerk of the superior court is ordered to correct the abstract of judgment to conform to the actual order of the sentencing court as to count 2: It was imposed but stayed pursuant to Penal Code section 654. The term for count 3 is reversed and remanded for resentencing. Once the abstract is corrected, the clerk is ordered to forward a copy of that corrected document to the Department of Corrections.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

FYBEL, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] Originally, Pitts faced nine counts: the four counts for which he was eventually convicted, plus two felony counts of receiving stolen property, a felony count of unlawful acquisition of account information, a felony count of identity theft, a felony count of receiving property under an assumed name and a misdemeanor count of identity theft. (See Health & Saf. Code, 11359, 11360, subd. (a); Pen. Code, 470b, 484e, subd. (d), 487, subd. (d)(1), 496, subd. (a), 530, 530.5, subds. (a) & (d).) However, on the day of trial, the prosecution moved to dismiss all but the four counts for which Pitts was convicted. The motion was granted.

All further section references are to the Health and Safety Code unless otherwise stated.

[2] The parties stipulated the amount was in excess of the statutory base of 28.5 grams; but the amount was far in excess of that amount: just one of the 20 plastic baggies contained 32.2 net grams of marijuana. The actual total weight was 171.11 as established by testimony at the preliminary hearing.

[3] The Brown case has also been overruled within its own jurisdiction. (See U.S. v. Prentiss (10th Cir. 2001) 256 Fed.3d 971, 973.)

[4] As noted in People v. Coelho (2001) 89 Cal.App.4th 861, [t]he statutory phrase committed on the same occasion refers to at least a close temporal and spatial proximity between the acts underlying the current convictions. [Citation.] The statutory phrase arising from the same set of operative facts refers to sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted. [Citation.] (Id., at p. 864, fn. 1.)

[5] The Attorney General also contends that counts 3 and 4 could be from the same set of facts and from the same occasion but that counts 1 and 2 were separate and distinct. This argument rests on an error from reading the record: count 4 occurred on the same date and at the same time as counts 1 and 2, not on the date and occasion of count 3.

[6] We note in this analysis that considerations used for determinations of multiple punishment under Penal Code section 654 are not relevant to those in a review of sentencing multiple current felonies under the Three Strikes law. (See People v. Deloza (1998) 18 Cal.4th 585, 591-595.)

[7] For example, in Lawrence, a defendant committed a theft, fled the store and then committed an assault and trespass several blocks away. He attempted to argue that the assault and trespass were related to the initial theft because he was merely attempting to find a place of relative safety, and the theft continued until such place was reached. This characterization was rejected by the Supreme Court (People v Lawrence, supra, 24 Cal.4th at pp. 219 & 227), as it was in People v. Jenkins (2001) 86 Cal.App.4th 699 when a defendant broke into a home, seriously assaulted the victims daughter who attempted to block his entry into her mothers room, then went downstairs to obtain a knife from the kitchen with which he returned and inflicted great bodily injury on the mother in the upstairs bedroom. (Id. at pp. 706-707.)

[8] In Hall, the appellate court held there was no evidence in the record that would enable the court to determine whether the offenses at issue occurred on the same occasion and whether they arose out of the same operative facts. (People v. Hall, supra, 67 Cal.App.4th at p. 138.) Hall was convicted of receiving stolen property, carrying a concealed firearm in a vehicle, and conspiracy to commit robbery, charges stemming from an incident in which an officer attempted to detain a stolen vehicle suspiciously driving down an alley. Hall, along with four others, leaped from the moving van and fled, but Hall was apprehended a short time later, identified by the detaining officer, and charged with the equipment found in the van used to commit robberies: a sawed-off shotgun, nylon stockings tied at the top and cut with holes for the eyes and nose, gloves and a simulated handgun. Thus, remand of the case was required to allow the parties to submit evidence on the issue and then permit the trial court to decide if the offenses all arose from the same set of operative facts and the same occasion. (Id. at pp. 138-140.)