Filed 12/18/18 P. v. Williams CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed in part; reversed in part with directions.

Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Raymond Williams guilty of (1) possession of phencyclidine (PCP) for sale (Health & Saf. Code, § 11378.5); (2) two counts of possession of cocaine base for sale (Health & Saf. Code, § 11351.5); (3) possession of a controlled substance for sale (Health & Saf. Code, § 11378); (4) possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)); and (5) possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1)).

As to all the foregoing counts, the jury found true the allegation that the crimes were committed with the intent to promote, further, or assist a criminal street gang. (Pen. Code, § 186.22, subd. (b).) The trial court found true the allegations that defendant suffered a prior strike conviction (Pen. Code, § 1170.12, subds. (a)-(d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)). The trial court sentenced defendant to prison for a term of 19 years four months.

Defendant raises two contentions on appeal. First, defendant asserts substantial evidence does not support his convictions for possessing cocaine base, a firearm, and ammunition. Second, defendant contends the trial court made sentencing errors. The People concede the trial court made sentencing errors. We reverse defendant’s sentence on Counts 2, 3, 7, and 8, and direct the trial court to resentence him, but otherwise affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Defendant resided in an apartment at 1264 North Sierra Way, in San Bernardino. On April 14, 2017, at approximately 7:30 p.m., San Bernardino City Police Officer Orozco (Orozco) was working with other officers, including Officer Sims (Sims), on a drug and gang sweep. While driving down North Sierra Way, Orozco saw four men “hanging out” under a carport at the apartment complex where defendant resided. The men were standing around a table. The four men included defendant, Byron Floyd, Jeffrey Brown, and Jerrick Jackson.

Orozco stopped the police car. As Orozco exited the car, defendant and Jackson ran through a doorway at the back of the carport. The doorway led to a walkway along the north side of the five-unit apartment complex. Sims, who was familiar with individuals in the past fleeing the carport through the doorway, was waiting along the walkway. Sims was advised, via radio, that defendant and Jackson were running toward the doorway. As defendant and Jackson approached Sims, Sims drew his gun and told them to stop. Defendant and Jackson stopped, and were placed under arrest. Jackson was holding a loaded nine-millimeter semiautomatic gun in one hand and a false can of Monster energy drink in the other hand. Inside the false can, Sims found vials of PCP. Sims found $219 in small denominations in Jackson’s possession.

As Orozco approached the carport, he saw Floyd sitting next to the table, pouring liquid out of a small vial. Floyd had emptied three to four vials. PCP is a drug that comes in liquid form and it has a pungent odor. Orozco recognized the smell of the liquid from the vials and identified it as PCP. Orozco saw a false can of Monster energy drink under the table. When Orozco unscrewed the lid on the can, he found several vials of PCP.

On top of the table, Orozco found three cell phones, six one-by-one inch baggies containing methamphetamine, a digital scale, two Altoid tins containing a dozen small rocks of cocaine base/crack cocaine, a bag containing marijuana, and an empty false Red Bull can. In total, the officers recovered 54 vials of PCP, over three grams of crack cocaine with the packaging, and over three grams of methamphetamine with the packaging.

After being arrested, defendant asked about his cell phone. Orozco presented defendant with the three cell phones that were found on top of the table, and defendant identified one of the phones as his. Defendant’s phone had been located next to the methamphetamine and crack cocaine.

Of the four men, only defendant resided at the apartment complex. On April 26, officers searched defendant’s “very, very small” one-bedroom apartment. No one was present inside the apartment when the officers conducted their search. Defendant remained in custody on April 26, and had been in custody since April 14. Floyd, Brown, and Jackson were arrested on April 14. On April 26, they were present in court, in custody.

Inside defendant’s bedroom, officers found mail and paperwork belonging to defendant and April Avery (Avery). A photograph of Avery, defendant, and a child was on the kitchen refrigerator. In a hall closet, officers found Jackson’s social security card, state identification card, and tax forms; none of the documents listed the apartment as Jackson’s residence. When Jackson was booked, on April 14, Jackson told Sims that he was transient and did not have a permanent address.

There was one bed in the one-bedroom apartment, and a loaded .22-caliber revolver was found between the mattress and box spring. Ammunition for a .38-caliber weapon was found in the top dresser drawer in the bedroom, along with 43.7 grams of crack cocaine and a scale. A safe was located in the bedroom. Officers pried the safe open and found $241.

Ammunition was found in the laundry room inside the apartment. The ammunition included a 50-round box of nine-millimeter ammunition, a 50-round box of .22-caliber high-velocity ammunition, a 50-round box of .22-caliber hyper-velocity ammunition, and a bag containing 19 nine-millimeter rounds and two .22-caliber rounds.

Floyd and Brown admitted to being members of the Grape Street Watts Crips, which is a Los Angeles gang. Defendant is a member of the 89th Street East Coast Crips, which is a Los Angeles gang. Jackson, who was the youngest of the four men, did not provide information about any gang affiliation he might have had. Members of different Los Angeles gangs will often work together when in San Bernardino for the sake of “survival because they lack the . . . territory . . . and they lack the numbers” in San Bernardino.

Gang members “typically give their firearm, drugs, [and] money . . . to a younger person.” “They’ll do that so if law enforcement arrives, they can run. They can flee, and they’re less likely to get captured.” Jackson, who was the youngest in the group, was carrying a firearm, drugs, and cash.

Another common strategy of gang members is to leave some of their drugs, money, firearms, and ammunition in a storage house, which is also referred to as a “trap house.” The purpose of the trap house is to protect the items from seizure by the police if the person selling drugs is arrested. Trap houses tend to be located close to where the drugs are being sold. When the facts of the case were presented as a hypothetical, Sims opined that an apartment such as defendant’s would serve as a trap house to facilitate drug sales to benefit the Grape Street Watts Crips.

The defense rested without presenting any witnesses of its own. During closing argument, the prosecutor asserted that the charge of possessing a firearm, the charge of possessing ammunition, and one of the charges of possessing cocaine base related to the items discovered on April 26, during the search of defendant’s apartment. In the first amended information, defendant was charged with possessing the firearm, ammunition, and cocaine base on April 14.

DISCUSSION

A. SUBSTANTIAL EVIDENCE

Defendant contends substantial evidence does not support his convictions for possessing the firearm, ammunition, and cocaine base that were discovered on April 26. Defendant asserts that because he was arrested on April 14, and the items were found on April 26, while defendant was still in custody, it cannot be concluded that he possessed the items on April 14. Contrary to defendant’s position, circumstantial evidence of constructive possession can constitute substantial evidence. (See People v. White (1969) 71 Cal.2d 80, 82-83.)

“[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citation.] ‘ “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” ’ ” (People v. Thomas (1992) 2 Cal.4th 489, 514.)

“Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.” (People v. Williams (1971) 5 Cal.3d 211, 215.)

The evidence reflects that, when defendant was booked, he gave 1264 North Sierra Way, Apartment E, as his address. That evidence reflects defendant lived in the apartment. Mail addressed to defendant was inside the bedroom of the apartment. That evidence indicates that defendant utilized the bedroom. There was one bed in the apartment. Because the apartment belonged to defendant and defendant utilized the bedroom, it can be reasonably inferred that defendant slept on the one bed in the apartment.

The firearm was found between the mattress and box spring. It is reasonable to infer that the firearm hidden under the mattress belonged to the owner of the bed, i.e., defendant. This inference is supported by the evidence that (1) defendant was outside the apartment building selling PCP, crack cocaine, and methamphetamine; (2) 43.7 grams of crack cocaine were inside the bedroom; and (3) gang members tend to store some of their drugs, cash, and firearms in nearby residences when selling drugs on the street. This evidence reflects defendant had an ongoing business of selling drugs, and it can be inferred that the firearm inside the apartment was used as a means of protecting defendant in that business.

Further, the evidence of multiple types of ammunition in the bedroom and laundry room support a conclusion that the firearm and ammunition were not purchased and brought to the apartment in the days after April 14. On April 14, Jackson was found to be in possession of a nine-millimeter semiautomatic. On April 26, officers located a .22-caliber revolver under defendant’s mattress. They also found a mixture of nine-millimeter, .22-caliber, and .38-caliber ammunition. The ammunition found in different areas of the apartment, in different calibers and types, e.g., high and hyper-velocity, supports an inference that the .22-caliber revolver had been in the apartment for more than 12 days when police found it because the circumstances reflect firearms were a part of life in the apartment.

Because defendant was selling a variety of drugs, including crack cocaine, on April 14, it can reasonably be inferred that the crack cocaine in defendant’s bedroom belonged to defendant. This inference is supported by the evidence reflecting gang members selling drugs on the street often store a portion of their drugs in a nearby residence to avoid having all the drugs seized by police during an arrest.

Defendant was seen standing in the carport of the five-unit apartment complex on April 14 selling drugs. It was possible to run from the carport to defendant’s apartment. Given that defendant was on the same property as the firearm, ammunition, and cocaine base, and he could quickly reach the apartment if needed, it can reasonably be found that defendant was in control of the contraband within his apartment while standing in the carport. In sum, substantial evidence supports the finding that the firearm, ammunition, and cocaine base were immediately and exclusively accessible to defendant and subject to his dominion and control. Accordingly, we conclude defendant’s convictions for possession of a firearm, ammunition, and cocaine base are supported by substantial evidence.

B. SENTENCE

1. PROCEDURAL HISTORY

At the sentencing hearing, the trial court said, “I indicated at [the] bench I wasn’t inclined to run them concurrent. I was going to stay punishment on some of the gang enhancement charges. In reviewing the comments of counsel and to slightly reduce the sentence I will run the charges in counts two and three concurrent because they were the same course of action or occurred at the same time and were basically in the same course of conduct I should say; however, I’m going to impose the aggravated term on Count 1 based on the prior record and the fact that the Court elected to run consecutive I will run concurrent [sic] and that result will save [defendant] on total calculations.”

The court continued, “The Court in setting the principal term had a chance to review the circumstances of the offense and [defendant’s] prior record as outlined in the probation report, a significant prior record; although, it is somewhat older than most. Most recent conviction was from 2007; however the prior record includes the robbery strike which was found true and a couple of corporal injury felonies over the course of a period of time of approximately 20 years’ span. Based on that and the fact that I am going to run some counts concurrent that I could run consecutive, I do find the position of the aggravated term in Count 1 is appropriate for the base charge of the possession for sale of PCP.

“As to Count 1 the court will impose the aggravated term of five years in state prison, doubled for the admission of the prior strike. That’s ten years state prison. I will follow the recommendation of probation and impose only the midterm on the gang enhancement. That’s an additional three years on Count 1. Total on Count 1 is 13 years. As to Counts 2 and 3, I will find that those counts are 654, and so no sentence will be imposed on those.

“As to Count 6, possession of a firearm by a felon, I’ll impose a consecutive one-third the midterm. That will be doubled for the prior strike. So that’s an additional one year and four months. I will stay the punishment on Count 6 as to the gang enhancement. Count 7 and 8 I will stay pursuant to 654. If my calculations are correct, I have 13 years on Count 1, one year and four months on Count 2. That’s 14, 4. Finally, I will impose an additional five years for the prior serious felony. Total commitment to state prison is 19 years and four months. This sentence will be followed by a period of parole three to four years.”

2. ANALYSIS

a. Contentions

Defendant contends the trial court erred by not pronouncing sentences for Counts 2, 3, 7, and 8, which were stayed pursuant to Penal Code section 654.[1] The People concede the foregoing contention is correct. Defendant also contends the trial court erred by selecting the upper term in Count 1 on the basis that other terms would be run concurrently, because, ultimately, the court did not order any terms to be served concurrently.

b. Section 654

“[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence. There is no authority for a court to refrain from imposing sentence on all counts, except where probation is granted. And failing to impose sentence on all counts can lead to procedural difficulties if the count on which sentence was imposed is later reversed or vacated.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1466.)

In the instant case, the trial court failed to impose sentences on Counts 2, 3, 7, and 8, prior to pronouncing the sentences stayed by section 654. Accordingly, we conclude the trial court erred. We will reverse the sentences for Counts 2, 3, 7, and 8 so the trial court may pronounce the sentence for each count. (See People v. Alford, supra, 180 Cal.App.4th at p. 1466 [sentence must be imposed and then stayed]; see also People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [“it is the oral pronouncement of sentence that constitutes the judgment”].)

c. Count 1

Defendant contends the trial court erred by selecting the upper term in Count 1 based upon some of defendant’s prison terms for other counts being served concurrently when, ultimately, the court did not order any term to be served concurrently.

The trial court said, in regard to selecting the upper term, “I indicated at [the] bench I wasn’t inclined to run them concurrent. I was going to stay punishment on some of the gang enhancement charges. In reviewing the comments of counsel and to slightly reduce the sentence I will run the charges in counts two and three concurrent because they were the same course of action or occurred at the same time and were basically in the same course of conduct I should say; however, I’m going to impose the aggravated term on Count 1 based on the prior record and the fact that the Court elected to run consecutive I will run concurrent [sic] and that result will save [defendant] on total calculations.”

It appears the trial court misspoke by using the term “concurrent” when it meant “stay.” It can be inferred that the trial court misspoke because it described the law for section 654, which results in a sentence being stayed. For example, the trial court said, “I will run the charges in counts two and three concurrent because they were the same course of action or occurred at the same time and were basically in the same course of conduct.” (See People v. Williams (2013) 57 Cal.4th 776, 781 [section 654 “prohibits punishment for more than one crime arising from a single indivisible course of conduct”].)

The trial court imposed the upper term on Count 1 due to defendant’s prior record and because the court intended to stay (§ 654) defendant’s prison terms on Counts 2 and 3. We are not persuaded that the trial court’s misstatement of the term “concurrent,” rather than “stayed,” requires the sentence for Count 1 to be reversed because the trial court’s reasoning remains intact; that reasoning being (1) defendant’s criminal record is serious, and (2) the sentences for Counts 2 and 3 were not ordered to be served consecutively.

DISPOSITION

The sentences for Counts 2, 3, 7, and 8 are reversed. The trial court is directed to resentence defendant on Counts 2, 3, 7, and 8. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.