P. v. Thomas

Filed 10/27/06 P. v. Thomas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed as modified.

Defendant Michael Darryle Thomas pleaded no contest to multiple drug-related charges and prior drug conviction enhancements under Health and Safety Code section 11370.2,^[1] as well as other recidivism-related enhancements, and the trial court sentenced him to 12 years in state prison. On appeal, Thomas asserts the trial court committed sentencing error by: (1) misunderstanding its discretionary power to strike one of the section 11370.2 enhancements under Penal Code section 1385; (2) improperly computing his sentence by imposing the section 11370.2 enhancements on specific counts instead of the aggregate sentence; and (3) erroneously using his prior drug convictions as foundation for imposing both the aggravated term on count 1 and the section 11370.2 enhancements. We agree the section 11370.2 enhancements should have been imposed on Thomas's aggregate sentence and direct the trial court to modify its minute order and amend the abstract of judgment to correct the error. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On September 10, 2004, police executing a search warrant encountered Thomas sitting in the courtyard of an apartment complex. When officers asked to see Thomas's hands he made a sudden movement. A search of the area where Thomas was seated yielded two bags of methamphetamine and multiple pieces of cocaine base. Thomas was detained and subsequent questioning revealed a cell phone number through which he could be reached. Officers released Thomas from custody that same day. On September 14, 2004, an undercover officer used the cell phone number to contact Thomas and arranged to purchase cocaine base. Thomas appeared at the agreed upon location and was arrested. A search of his car revealed 4.4 grams of cocaine base and .33 grams of methamphetamine.

Stemming from the September 10, 2004 incident, Thomas was charged with possession of cocaine base for sale (§ 11351.5; count 6) and possession of methamphetamine for sale (§ 11378; count 7). Thomas was also charged with five counts arising from the events of September 14, 2004: sale of cocaine base

(§ 11352, subd. (a); count 1); transportation of cocaine base (§ 11352, subd. (a); count 2); transportation of methamphetamine (§ 11379, subd. (a); count 3); possession of cocaine base for sale (§ 11351.5; count 4); and possession of methamphetamine for sale (§ 11378; count 5). As to counts 3, 5 and 7, the People alleged Thomas had suffered a prior conviction within the meaning of section 11370.2, subdivision (c). Each count was accompanied by two section 11370.2 enhancements.^[3]

Thomas entered a plea of no contest and admitted the alleged enhancements and priors. At sentencing, Thomas requested the court exercise its discretion to strike at least one of the section 11370.2 enhancements in furtherance of justice under section 1385. Responding to the prosecutor's statement that she believed the court lacked discretion to do so, the trial court remarked that its "inclination" was to agree that it lacked the discretion to strike the enhancements. After hearing defense counsel's arguments to the contrary, the court stated: "I think I left my sentencing manual back in chambers. I know the answer is in there but it may be a moot point based on what I intend to do." The court then addressed Thomas, noted his nonviolent past, thanked him for serving in the military, and stated: "After serving your country, you went downhill. And I'm not going to get into an analysis how you got addicted, but, you know, one hopes that a prison term is a deterrent. That one goes to prison, gets out and says, I never want to do that again. And then makes a commitment to stay clean and yet there you are being released from prison time after time and going back to the same conduct. And I know you're smarter than that. And I think, prior to -- part of it may be that you're lying to yourself and telling yourself that you can't do it. You know, the first prison term should have been your last. So, as a judge I have to obey the law and I have to impose the sentence that I think is appropriate. And the law says that the court must consider a person's criminal history and attitude toward reoffending, is one of the factors. And, even though you say you were addicted, you have a choice and you have a brain and you could have chosen not to sell or possess controlled substances. And you made your choice. And of course in this system every choice has its consequences."

The trial court imposed the upper term of five years on count 1 as well as two consecutive three-year section 11370.2, subdivision (a) enhancements, citing as justification "some of the factors in aggravation includ[ing] the pattern of criminality that the defendant has demonstrated over the past 20 years or so. The concurrence of the two crimes, within a few day period, also indicates disregard for the law." For counts 3, 6, and 7, the court imposed the middle terms and two consecutive three-year section 11370.2 enhancements for each count to run concurrent to count 1, but stayed counts 2, 4, and 5 under section 654. The court also added a one-year consecutive term for a prison prior but used its discretionary powers under Penal Code section 1385 to strike the remaining four prison priors. Ultimately, Thomas received a total sentence of 12 years in prison and the court ordered him to pay $3,000 in restitution.

DISCUSSION

I.

Thomas contends the trial court erroneously believed it lacked discretion under Penal Code section 1385 to strike one of the section 11370.2 enhancements imposed on count 1.^[4] The People agree that the trial court had discretion to strike the enhancements upon determining that doing so would be in the furtherance of justice. (Pen. Code,

§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) They concede the court questioned whether or not it had such discretion, but maintain any error is harmless in view of the court's intent to impose both enhancements on count 1 regardless. The sole issue, therefore, is whether any presumed error was prejudicial, entitling Thomas to reconsideration of his sentencing.

Where a court affirmatively misunderstands the scope of its discretion to strike sentence enhancements in furtherance of justice, but the record nonetheless indicates the sentencing court "would not, in any event, have exercised its discretion to strike [them]," remand is unnecessary. (Romero, supra, 13 Cal.4th at p. 530, fn. 13; People v. Fuhrman (1997) 16 Cal.4th 930, 944.) Such is the case here, where the trial court indicated that the question of whether it had discretion to strike the section 11370.2 enhancements or not was "moot" because, in any event, it would not do so. Although recognizing Thomas's nonviolent past and service to his country, the court nevertheless cited his recidivism and apparent disregard for the law before it willingly imposed the maximum allowable sentence under count 1 -- both the upper term and two consecutive section 11370.2 enhancements -- though it need not have done so. (Pen. Code, §§ 669, 1170, subd. (b); Cal. Rules of Court, rule 4.420.) Because the record demonstrates the trial court would not have stricken Thomas's section 11370.2 enhancements even had it recognized its ability to do so, "[w]e are unwilling to remand the case merely to require the trial court to adhere to a formal ritual, with the same result." (People v. Thompson (1989) 209 Cal.App.3d 1075, 1086.)

II.

Thomas contends the trial court erred by imposing section 11370.2 enhancements on each of the unstayed concurrent terms on counts 3, 6, and 7. The People again concede the error. They correctly observe section 11370.2 enhancements relate to the nature of the offender, not that of the crimes charged, and are imposed only once in calculating the total sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds by People v. Ewoldt (1994) 7 Cal.4th 380, 398-402.) The remaining issue is the appropriate remedy for the improper sentence.

A defendant has a recognized interest in receiving an aggregate sentence imposed in accordance with law. (People v. Smith (1992) 10 Cal.App.4th 178, 182-183 & fn. 7.) Where sentence enhancements for drug priors are erroneously affixed to individual counts, the duplicative enhancements should be stricken even where, as here, the "real and practical consequences" of defendant's aggregate prison term will remain unchanged. (Ibid.) In the present case, the trial court improperly imposed eight sentence enhancements when only two total section 11370.2 enhancements should have been levied: one for each of Thomas's drug sales felony-priors under section 11352, subdivision (a). (People v. Tassell, supra, 36 Cal.3d at p. 90.) Since the superfluous enhancements were imposed concurrently to those properly exacted and thus do not affect Thomas's total prison term, the computational error is adequately remedied by directing the trial court to modify the minute order to strike the extraneous enhancements and prepare an amended abstract of judgment to reflect that the section 11370.2 enhancements do not attach to particular counts.

III.

Although Thomas concedes the argument was not raised below, he now contends the trial court imposed an unauthorized sentence when it founded imposition of both the aggravated term on count 1 and the section 11370.2 enhancements on the prior drug convictions which serve as the basis for those very same enhancements. The People respond the argument was not preserved for appeal and is therefore waived. We agree Thomas forfeited the claim of error.

Claims of unauthorized sentences are but "a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354.) Included in this narrow waiver exception are those unauthorized sentences levied in violation of the double punishment provision of Penal Code section 654. (People v. Scott, at p. 354,

fn. 17.) The standard forfeiture doctrine, however, applies to all other instances in which a trial court improperly articulates its discretionary sentencing choices, including "cases in which the court purportedly erred because it double-counted a particular sentencing factor." (Id. at p. 353; see also People v. DeSoto (1997) 54 Cal.App. 4th 1, 8.) Here, Thomas fashions his dual-use contention as a claim of unauthorized sentence under Penal Code section 654 so as to fall within the narrow forfeiture exception recognized in People v. Scott. However, Thomas neither explains, nor attempts to explain, how the court's dual-use at sentencing amounted to prohibited multiple punishment for the same act within the meaning of Penal Code section 654. In any event, the substance of Thomas's claim belies his characterization because his argument in fact alleges improper "double-count[ing] [of] a particular sentencing factor," not unlawful double punishment. A dual-use argument must be preserved for appeal and, by omitting any specific objection below, Thomas forfeited the claim.

IV.

A court has the inherent power to, on its own motion, correct clerical errors contained in its records. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Further, appellate courts may make necessary corrections at any time where discrepancies exist between the abstract of judgment, the judgment reflected in the reporter's transcript, and the trial court's minute order. (Id. at p. 188.) Both the abstract of judgment and minute order in this case contain clerical errors necessitating remedial action. The abstract incorrectly denotes the two section 11370.2 enhancements as tied to count 1 and also excludes count 7 entirely. The minute order likewise appends the section 11370.2 enhancements to specific counts and additionally misstates the number of prison priors stricken by the trial court. These errors are to be corrected on remand.

DISPOSITION

The matter is remanded and the trial court directed to strike the Health and Safety Code section 11370.2 enhancements affixed to counts 3, 6, and 7 and to impose the two consecutive Health and Safety Code section 11370.2 enhancements upon the total aggregate sentence. The court shall prepare an amended abstract of judgment and modified minute order consistent with this opinion and forward copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McINTYRE, Acting P. J.

IRION, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

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

^[2] Because Thomas pleaded guilty, our factual description is based on information contained in the probation officer's May 17, 2005 report.

^[3] Two prior felony drug-related convictions under section 11370.2, subdivision

(a) attached to counts 1, 2, 4, and 6. Additionally, the People alleged five prior prison conviction enhancements under Penal Code sections 667.5, subdivision (b) and 668 as a result of Thomas's two terms served for felony drug possession convictions (Pen. Code,

§ 11350, subd. (a)), two terms for felony burglary convictions (Pen. Code, §§ 459, 487.1), and one term for two felony drug sales convictions (§ 11352, subd. (a)).

No-probation prior conviction allegations attached to counts 1, 4, and 6 (Pen. Code,

§§ 1203.07, subd. (a)(11), 1203.073, subd. (b)(7).).

^[4] We refer to the section 11370.2 subdivision (a) and (c) enhancements collectively as "section 11370.2 enhancements" for ease of reference. Also, because each section carries a three-year term, distinguishing between 11370.2 subdivision (a) and (c) has no practical effect on Thomas's aggregate sentence.