P. v. Tenner

Filed 8/15/07 P. v. Tenner CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Willie Tenner appeals his convictions for two counts of possession of cocaine base for sale (Health & Saf. Code,  11351.5),[1] two counts of possession of methamphetamine for sale ( 11378), the sale or transport of a controlled substance ( 11352, subd. (a)), and transportation of a controlled substance ( 11379, subd. (a)).

He contends that the trial court abused its discretion and violated his right to due process by improperly consolidating the trial of offenses that occurred on two separate occasions. He also claims imposition of an upper term sentence based on aggravating factors determined by the trial court violated his right to a jury trial. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 30, 2005, Ventura police detained Tenner. He had $1,320 in cash and a key to a residence on Albatross Street in Ventura which the police had under surveillance. Later the same day, police officers executed a search warrant for the residence, gaining entry with Tenner's key. Janet Wilcox, Tenner's fiance, lived in the house but neither Wilcox nor Tenner were present at the time of the search.

Officers found a purse hanging on a bedroom wall. There was a large plastic baggie in the purse containing 19 cellophane-wrapped packages of rock cocaine and two baggies of methamphetamine. There were pieces of paper in the purse pertaining to Janet Wilcox but no wallet, makeup or keys. The police found narcotics paraphernalia in the bedroom, such as smoking pipes, empty baggies, a digital gram scale, and baking soda. There were also men's clothing in the bedroom consistent with Tenner's size, and a social security disability document in the names of both Tenner and Wilcox.

Wilcox testified at trial under a grant of immunity. She testified that she was Tenner's fiance, handled Tenner's expenses, and was a payee on Tenner's social security disability checks, but that Tenner had not lived with her in the house since February 2005. She testified that the drugs were for her personal use, but admitted that she previously told a police detective that the drugs were not hers and that she suspected the drugs belonged to Tenner who she believed was dealing drugs.

On September 22, 2005, California Highway Patrol officers ordered a weaving vehicle to pull over. The driver, later determined to be Tenner, threw a plastic baggie containing 17 bindles of rock cocaine and five bindles of methamphetamine out of the car window before stopping. In a search of the car, officers found plastic baggies, a digital scale, an empty insulin box, and an insulin prescription in Tenner's name. Tenner had $848 in cash on his person.

The drugs found during the June 30 search of the house on Albatross Street, and during the September 22 traffic stop were possessed for the purpose of sale based on the amount of drugs found at each location, the packaging, the presence of a digital scale, and the amount of cash found.

Tenner was charged for crimes arising out of the June 30 search and the September 22 traffic stop in two separate cases. The information regarding the June 30 search charged Tenner with possession of cocaine base for sale and possession of methamphetamine for sale. The information regarding the September 22 traffic stop charged Tenner with possession of cocaine base for sale, possession of methamphetamine for sale, and transportation of the cocaine and methamphetamine. Both pleadings alleged that Tenner had suffered two prior drug-related convictions within the meaning of section 11370.2, subdivision (a), one prior serious or violent felony conviction within the meaning of the three strikes law, and that Tenner had served four prior prison terms. (Pen. Code,  667, subd. (b).)

At the time of trial, the prosecution moved to consolidate the two cases. The prosecutor argued that the offenses were similar, close in time, and the evidence would be cross-admissible. Defense counsel argued that the offenses occurred on separate dates and that it was inherently prejudicial to try the two cases together. The court granted the motion, concluding that consolidation would not prejudice the defendant.

A jury convicted Tenner of all offenses, and Tenner admitted the allegations related to his prior convictions and prison terms. He was sentenced to 20 years in state prison, consisting of the upper term of 10 years for the June 30 possession of cocaine base for sale offense, plus 6 years for the 2 prior drug-related convictions, a consecutive 16-month term for the June 30 possession of methamphetamine for sale offense, and a consecutive 32-month term for the September 22 possession of cocaine base for sale offense. The court sentenced Tenner to a concurrent six-year term for the September 22 possession of methamphetamine for sale offense, and stayed sentences for the other offenses and the allegations.

DISCUSSION

No Error in Consolidating Cases for Trial

Tenner contends that the trial court abused its discretion by consolidating the charges arising from the June 30 search with the charges arising from the September 20 traffic stop. He argues that the evidence in the two cases would not have been cross-admissible in separate trials, and that the evidence supporting the September 22 charges was substantially stronger than the evidence supporting the June 30 charges. We disagree.

Penal Code section 954 provides in part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." Charges are considered to involve the same class of crimes when they involve a "'. . . "'common element of substantial importance.'" [Citations.]'" (People v. Mendoza (2000) 24 Cal.4th 130, 160.) If this requirement is met, as it was in the instant case, the defendant has the burden of showing prejudice from joinder of the charges. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) In addition, even if a consolidation order is proper when made, the effect of a consolidated trial may result in "gross unfairness" amounting to the denial of due process. (Ibid.)

We review a trial court's order granting consolidation for abuse of discretion. (People v. Ochoa, supra, 19 Cal.4th at pp. 408-409; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1120.) We conclude that there was no abuse of discretion in consolidating the cases, and no gross unfairness to Tenner as a result of the consolidation.

The factors considered in determining prejudice, are whether (1) evidence of the crimes would be cross-admissible in separate trials, (2) some of the charges are unusually likely to inflame the jury against the defendant, (3) a weak case is joined with a strong case or another weak case so that the combined evidence for the multiple charges may alter the outcome of some or all of the charged offenses, and (4) one of the charges carries the death penalty or joinder would convert the matter into a capital case. (People v. Bradford (1997) 15 Cal.4th 1229, 1315; People v. Sandoval (1992) 4 Cal.4th 155, 172-173.) There can be no prejudice if the evidence on each of the joined offenses would have been admissible in separate trials. (Bradford, supra, at pp. 1315-1316; see also People v. Jenkins (2000) 22 Cal.4th 900, 947-948; People v. Arias (1996) 13 Cal.4th 92, 126-127.) But the absence of cross-admissibility alone is not sufficient to establish prejudice. (Bradford, supra, at pp. 1315-1316.)

Tenner argues that the evidence would not have been cross-admissible for the purposes of establishing identity or a common plan or scheme but, as the prosecution argues, evidence of uncharged acts may be admissible for other purposes. Evidence of an uncharged act is admissible when relevant to prove a variety of other relevant facts, including motive, opportunity, intent, and knowledge. (Evid. Code,  1101, subd. (b).)

Although the trial court did not, and was not asked, to make an express determination, the record shows that evidence would have been cross-admissible in separate trials of the June 30 and September 22 offenses to prove knowledge and intent. The evidence would be cross-admissible to show knowledge of the nature of the drugs in question which is probative to whether Tenner had possession of the drugs. (People v. Thornton (2000) 85 Cal.App.4th 44, 47; People v. Martin (2001) 25 Cal.4th 1180, 1184-1185.) In addition, the evidence would have been cross-admissible to prove Tenner's criminal intent on both occasions because it is sufficiently similar to support a rational inference that he probably harbored the same intent in each instance. (E.g., People v. Cole (2004) 33 Cal.4th 1158, 1194.)

The defense theory was that the drugs found in the Albatross Street house belonged to Wilcox and, therefore, that Tenner did not possess the drugs for any purpose including the purpose of sale. Evidence that Tenner was arrested three months later in possession of roughly the same amounts of the same controlled substances permits a reasonable inference that Tenner had knowledge regarding the nature of the drugs found in the Albatross Street house and on September 22, possessed the drugs on both occasions, and intended to sell the drugs on both occasions. The inference is made even more reasonable by the fact that, on both occasions, the drugs were packaged in the same way, and a digital scale typically used to measure drugs and substantial amounts of cash were found by the police.

Tenner does not dispute that the evidence would be cross-admissible for purposes of proving knowledge and intent, but argues that the actual impact of the consolidated trial resulted in "gross unfairness" that deprived him of a fair trial. (People v. Ochoa, supra, 19 Cal.4th at p. 409; People v. Sandoval, supra, 4 Cal.4th at p. 174.) Relying on People v. Grant (2003) 113 Cal.App.4th 579, Tenner argues that gross unfairness resulted because the significantly stronger evidence of September 22 bolstered the weaker case for the June 30 offenses, the prosecutor's argument urged the jury to infer he was guilty of the June 30 offenses because drugs were found in his possession on September 22, and because the similarity of the evidencethe same drugs in the same packagingencouraged the jury to unfairly connect the two incidents. We reject this argument.

Grant is readily distinguishable. In that case, a 2001 charge of burglary of computer equipment from a school was consolidated with a charge of receiving and concealing property, also computer equipment, that had been stolen in 1998. The defendant had been arrested in the vicinity of the burglary, and the police found the computer equipment that had been stolen in 1998 in his garage. (People v. Grant, supra, 113 Cal.App.4th at pp. 584-585.) The court concluded that there was no abuse of its discretion in denying defendant's motion to sever, but that the joinder denied him a fair trial because the evidence of the two offenses was not cross-admissible, evidence of the burglary was weaker than evidence for the other charge, and for other reasons. (Id., at pp. 583-584.)

In the instant case, the evidence was cross-admissible and there could be no prejudice or unfairness based solely on that factor. In addition, although evidence of the September 22 offenses may have been somewhat stronger than that for the June 30 offenses, evidence regarding the June 30 offenses was not weak. The issue was whether Wilcox or Tenner, or both, had possession and control over the drugs found in the Albatross Street house. Apart from evidence regarding the September 22 offenses, there was substantial evidence connecting Tenner to the drugs. Tenner lived with Wilcox or, at least, was a regular visitor. His clothes were found in the house, his disability papers were found in the house, and Wilcox was his fiance.

No Cunningham Error

The trial court imposed an upper term sentence for one count of possession of cocaine base for sale. Tenner contends that the sentence was based on aggravating sentencing factors determined by the court in violation of his Sixth Amendment right to a jury trial. We disagree.

As the United States Supreme Court has recently reiterated, the Sixth Amendment right to a jury trial does not allow a judge to impose an upper term sentence based on aggravating facts that have not been tried by a jury. (Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 860].) It is established, however, that this rule does not apply to prior convictions, and that a defendant is not entitled to a jury trial for a sentence based on the fact of a prior conviction. (Id., at p. 868; see also Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey ( 2000) 530 U.S. 466, 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 246.) Here, the trial court imposed an upper term sentence on the basis of Tenner's prior convictions.

Tenner argues that the record is unclear as to the basis of the upper term sentence. He concedes that the trial court recited many of Tenner's multiple convictions on the record, but argues that the recitation occurred in the denial of his motion to dismiss a prior strike conviction and that, in imposing sentence, the court merely stated that the "factors in aggravation preponderate." He asserts that the court may have considered the number of convictions and his performance on probation and parole which, he argues, are factors related to Tenner's recidivism but not simply the "fact" of a prior conviction.

This argument has no merit. It is clear from the sentencing record as a whole that the trial court relied solely on the fact that Tenner had multiple prior convictions in imposing an upper term sentence. Tenner admitted these convictions, and there was no discussion on the record of any other aggravating factor. The mere mention of other recidivist-related factors in the probation report is insufficient to create any ambiguity regarding the basis of the sentence.

Assuming for the sake of argument that the trial court relied on impermissible aggravating factors, the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546, 2553]; People v. Sengpadychith ( 2001) 26 Cal.4th 316, 327.) Tenner's record of convictions made an upper term sentence a fait accompli and, arguably, any lesser sentence would have been an abuse of discretion.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Allan L. Steele, Judge*

Superior Court County of Ventura

______________________________

Susan B. Lascher, 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, Scott A. Taryle, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Health and Safety Code unless otherwise stated.

* Retired judge of the Ventura Superior Court sitting under assignment by the Chairperson of the Judicial Council.