P. v. Ray-Bailey

Filed 8/14/07 P. v. Ray-Bailey 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Tehama)

----

A jury convicted defendant Susan La Jean Ray-Bailey of possession of methamphetamine for sale (Health & Saf. Code,
11378 -- count I; further undesignated references are to this code), maintaining a place for sale or use of methamphetamine
( 11366 -- count III), possession of marijuana for sale ( 11359 -- count IV), and possession of methamphetamine while armed with a loaded firearm ( 11370.1, subd. (a) -- count V), and found special allegations of vicarious arming true as to the counts of possession of methamphetamine and marijuana. (Pen. Code, 12022, subd. (a)(1).) The trial court sentenced defendant to an aggregate term of four years in state prison and ordered her to pay specified fees and fines.

On appeal, defendant contends concurrent sentences imposed by the trial court as to counts I, III and IV and the related enhancement violated Penal Code section 654. She also contends the trial courts imposition of the upper term as to count V violated her Sixth and Fourteenth Amendment rights under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We agree with defendants first contention as to the vicarious arming enhancement only, and modify the judgment to stay the sentence as to that enhancement pursuant to Penal Code section 654. Agreeing also with defendants second contention, we affirm defendants convictions, but vacate the sentence on count V and remand to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant rented room 413 at a hotel in Corning, California, on November 12, 2005. She told hotel staff that, because her husband was ill, they were not to provide housekeeping services for the room. Over the course of a four-day period, staff noticed approximately 15 people visit defendants room.

Authorities conducted several hours of surveillance of room 413 on November 16, 2005, and, based on their observations and prior information, obtained a search warrant. When the warrant was executed later that evening, police found Buck Boswell, Carie Smith and Carrie Moon inside. Police also discovered drugs and drug paraphernalia, police scanners, notations of police radio frequencies, video surveillance equipment (set up and operating to surveil the hallway outside the room and the hotel parking lot), a digital scale, two balance scales, plastic baggies, pay-owe ledgers, cellular phones, night-vision goggles, a nine millimeter semiautomatic pistol with four magazines in plain view on the nightstand, a loaded .357 revolver with the serial number partially scratched off, and $4,453 in cash. Officers searched Carie Smiths purse and found methamphetamine and syringes. They also searched her van and discovered a locked safe containing marijuana, methamphetamine and syringes. In all, police found 51.7 grams of methamphetamine and 157.6 grams of marijuana.

While police searched Smiths van, they encountered and detained defendant in the parking lot of the hotel. A search of her person and her car turned up nothing. Defendant told police she had rented room 413 at Boswells request, that she had agreed to bring food, laundry and linens to the room and that she had been staying in the room with Boswell for the last two days. She admitted she helped Boswell set up the computer equipment in the room, but thought it was for use in his construction business. She told police she purchased the two guns at the flea market, but denied having any knowledge of illegal items in the room. Defendant admitted she was only telling 90 percent of the truth.

By an amended information that included charges against Boswell and Smith, defendant was charged with possession of methamphetamine for sale (count I), maintaining a place for sale or use of methamphetamine (count III), possession of marijuana for sale (count IV) and possession of methamphetamine while armed with a loaded firearm (count V). As to counts I and IV, it was alleged that defendant was vicariously armed with a firearm.

At trial, defendant testified she had a very bad meth problem and was having marital problems, so she rented room 413 to store some stuff to sell and move back to Texas.^[1] Defendant admitted everything in room 413 was hers except the clothes, which she claimed were her husbands. She also claimed she won some money at the Casino and planned to sell some equipment and stuff and then fly back home with the kids. Defendant admitted she was trading drugs for the equipment she could later sell, and that she was using room 413 as a place to sell methamphetamine and use marijuana, but denied obtaining drugs from Boswell. She testified that she told police a different story at the time of her arrest because she was scared.

The jury found defendant guilty on all counts and found the special allegations true. The court declared count V to be the principal count and, finding the aggravating factors outweighed those in mitigation, sentenced defendant to the upper term of four years in state prison for that offense, a concurrent sentence of eight months for count I, and ordered that, as to Counts [III] and [IV], [defendant] will receive eight months for the crimes plus four months for the special allegations.^[2] Approximately 20 days after imposition of sentence, the trial court filed an order modifying the sentence as to counts I, III and IV from the eight months imposed to two years for each count to run concurrently to the principal term of four years. The modification makes no mention of the sentence imposed for the special allegations.

Defendant filed a timely notice of appeal.

DISCUSSION

I

Defendant contends the trial courts imposition of concurrent sentences for counts I, III and IV and the vicarious arming enhancement violated Penal Code section 654. We agree only that the four-month sentence for the vicarious arming enhancement should be stayed.

Penal Code section 654, subdivision (a) provides: 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

[Penal Code] [s]ection 654 applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction. [Citation.] The purpose of section 654 is to ensure that a defendants punishment will be commensurate with his culpability. [Citation.] Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.] (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.] (People v. Saffle, supra, 4 Cal.App.4th at p. 438.)

As defendant concedes, Penal Code section 654 does not preclude multiple punishment for simultaneous possession of various narcotic drugs. (People v. Barger (1974) 40 Cal.App.3d 662, 672; People v. Monarrez (1998) 66 Cal.App.4th 710; see also People v. Blake (1998) 68 Cal.App.4th 509; People v. Goodall (1982) 131 Cal.App.3d 129.) However, she urges that the trial courts finding that the crimes and their objectives were not independent of each other, they were committed at the same time and place indicating a single period of aberrant behavior compels a different result. We disagree.

In expressing its findings, the court referred specifically to page 10 of the probation report, quoting from the section entitled Rule 4.425: Criteria Affecting Concurrent or consecutive sentences. The court punctuated the purpose of that finding by adding, Because of that finding, three of the counts [that is, counts I, III and IV] will be running concurrent[ly]. It did so having previously determined that Penal Code section 654 did not preclude multiple punishments in this case. The record supports that finding. Defendant was convicted of possession of methamphetamine for sale and possession of marijuana for sale. There was substantial evidence that defendant was engaged in multiple sales of both methamphetamine and marijuana, including the significant amounts of both types of narcotics found in room 413, along with the packaging materials, the scales, the pay-owe ledgers and the number of people visiting room 413 over a four-day period. The narcotics are separately classified and regulated by the Legislature; they have different effects and pose different hazards to society. (People v. Monarrez, supra, 66 Cal.App.4th at p. 715 [defendant convicted of possessing cocaine and heroin on same occasion].) The evidence supports the punishment imposed.

Defendant was also convicted of maintaining a place for sale or use of methamphetamine. As defendant testified, she rented room 413 for the purpose of selling and using drugs. She admitted all of the items found in the room were hers, including the drug paraphernalia, the guns and the surveillance equipment. As the People aptly note, there is a marked distinction between an objective to sell small quantities of drugs on the street corner and a more sophisticated and dangerous objective to set up a hotel room with surveillance and weapons in order to distribute drugs on a greater scale. The evidence indicates an intent not just to sell drugs, but to sell a significant quantity of drugs to a greater number of people in a more sophisticated, organized manner. The evidence therefore supports the punishment imposed.

Defendant contends that the vicarious arming enhancement must also be stayed under Penal Code section 654 either as an enhancement to a stayed underlying offense or independently because, in conjunction with the underlying offense, it comprised an indivisible course of conduct with a single intent and objective: to possess drugs for sale. Having rejected defendants claim that the underlying offenses should be stayed under Penal Code section 654, we also reject her argument that the enhancement must be stayed on that basis. However, we agree that the sentence as to a special allegation of vicarious arming, independently, must be stayed under that section because the act of being armed while committing a felony (i.e., being in possession of methamphetamine) has already been punished via the sentence imposed as to count V. We note, however, that (1) the sentence as to the vicarious arming enhancement should also have been modified from four months to one year as required under Penal Code section 12022, subdivision (a)(1), and (2) there remains some confusion as to whether the trial court intended to impose that sentence for the special allegation under count I, or the special allegation under count IV, or both. We therefore remand the matter back to the trial court and direct it to
(1) clarify its pronouncement of judgment as to the sentence
it intended to impose regarding the special allegations of vicarious arming under count I and count IV, (2) modify any sentence imposed as to a special allegation of vicarious arming from four months to one year, and (3) stay any sentence imposed as to a special allegation of vicarious arming pursuant to Penal Code section 654.

II

Defendant contends the upper term sentence on count V violated the Sixth and Fourteenth Amendments to the United States Constitution in light of Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We conclude that her claim has merit.

The United States Supreme Court held in Cunningham, supra, 549 U.S. at page ___ [166 L.Ed.2d at p. 862] that under Californias determinate sentencing law the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.

Applying Cunningham, in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___ [2007 Cal. Lexis 7604, *29] (Black II), this states highest court recently held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions.

The People first assert that defendant has forfeited the issue because she did not raise it in the trial court. We disagree.

Defendant was sentenced on May 4, 2006. Before that, on June 20, 2005, our Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Because Black was controlling law at the time of defendants sentencing, she was not required to make a futile objection at that time. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)

Next, the People assert that any error under Cunningham was harmless beyond a reasonable doubt because the evidence of the aggravating factors used to support imposition of the upper term was uncontested and overwhelming. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) We are not persuaded.

The court found that the aggravating factors outweighed those in mitigation, specifically noting as follows: The manner in which the crime was carried out indicates planning, sophistication, and professionalism. The defendant obtained methamphetamine, marijuana, and video equipment for a couple of months. Prior to her arrest, she rented a room in which to sell drugs and video equipment out of, she set up surveillance equipment in the hotel room. [] And, pursuant to Penal Code [s]ection 1170.73 the Court does in fact consider the quantity of controlled substance and considers that as a fact in aggravation. As stated, the defendant possessed 51.7 grams gross weight of methamphetamine in the crystallized form. [] The Court finds that one factor in mitigation, defendant has no prior record of criminal conduct. Based on those findings, the court imposed the aggravated term of four years as to count V, the principal term. Those grounds -- i.e., the manner in which the crime was carried out and the quantity of the controlled substance -- are both factors that must be tried to the jury under Cunningham. Accordingly, defendants Sixth Amendment rights were violated by imposition of an upper term sentence. (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, at p. *29]; People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___, ___ [2007 Cal. Lexis 7606, *16] (Sandoval).)

[A]lthough harmless error analysis applies to such violations, the error in the present case was not harmless beyond a reasonable doubt . . . . (Sandoval, supra, ___ Cal.4th at pp. ___, ___ [2007 Cal. Lexis 7606, at pp. *2, *16].) While there is evidence to support a finding that the defendant possessed a significant amount of methamphetamine (51.7 grams gross weight) and that she carried out the crime in a manner that indicates planning, sophistication and professionalism, we cannot say beyond a reasonable doubt that the jury would have found either of those aggravating circumstances true beyond a reasonable doubt.

In light of the above, we vacate defendant's sentence on count V and remand the matter to the trial court for resentencing. Upon remand, the trial court may exercise its discretion to impose any of the three terms available for possession of methamphetamine while armed with a loaded firearm in a manner consistent with Sandoval, supra, ___ Cal.4th at pp. ___ [2007 Cal. Lexis 7606, at pp. *30-36].

DISPOSITION

All of defendants convictions and her sentences on counts I, III and IV are affirmed. The matter is remanded to the trial court for further proceedings as to the special allegations of vicarious arming in accordance with part I of this opinion. The sentence imposed on count V is vacated and the matter is

remanded to the trial court for further proceedings as to count V in accordance with part II of this opinion.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

RAYE , J.

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^[1] Defense counsel notified the court that defendant was electing to testify against counsels advice. The court heard and denied counsels motion to withdraw and permitted defendant to testify in narrative form.

^[2] The amended information alleged the vicarious arming enhancement as to counts I and IV. To further confuse matters, the abstract of judgment reflects a four-month sentence for the special allegation as to count I only.