P. v. Turner

Filed 5/31/07 P. v. Turner 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

A jury found defendant Tatianna Turner guilty of possessing methamphetamine for sale and possessing cocaine for sale, and the court found true an enhancement based on a prior drug-related conviction. She was sentenced to six years eight months in prison, calculated as follows: three years for the cocaine conviction, a consecutive eight months for the methamphetamine conviction, plus a consecutive three years for the enhancement.

On appeal, defendant raises the following eight contentions: (1) the postsubmission substitution of jurors violated her constitutional rights; (2) the trial court prejudicially erred in refusing to excuse Juror No. 9 for misconduct; (3) the trial courts investigation into the juror misconduct was inadequate; (4) the trial court erred in denying her motion to discover information in the police personnel files; (5) the trial court erred in failing to compel the People to disclose the identity of a confidential informant; (6) the cumulative effect of these errors requires reversal of her convictions; (7) the court erred in imposing multiple punishment for her drug convictions; and (8) the courts imposition of consecutive sentences violated her constitutional rights. Disagreeing with all eight contentions, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution

Shortly before noon on December 15, 2004, sheriff deputies of Sacramento County stopped defendant in her Chevrolet Impala on Watt Avenue at a Rite-Aid parking lot to execute a warrant to search her person, her car, and an apartment on Annadale Lane. Deputies Scott Puffer and Kelly Manning did a quick pat down search of defendant, and Deputy Puffer found a pager and marijuana in her right front pants pocket. The search was difficult because defendants pants were so bagg[y]. Deputy Tim Ruiz searched defendants car and found a pouch containing a digital gram scale underneath the drivers seat and a checkbook containing $808 in cash in the center console. According to Deputy Erin McAtee, an expert in the investigation of narcotics-related activity who was also present at the search, sellers of methamphetamine almost always carry gram scales and often have pagers.

After the search of the car, Deputy Puffer drove defendant to Annadale Lane so the deputies could search the apartment. No evidence was found inside the apartment. In the bathroom of the apartment, however, Deputy Manning searched defendant again because she had frequently found people hiding narcotics in places that arent found during the cursory pat down search. When defendant unzipped her pants, Deputy Manning noticed a bulge in the front of [defendants] crotch. Defendant was hiding a drawstring bag in her underwear that contained three clear plastic baggies. One baggie contained 3.56 grams of methamphetamine, another baggie contained 23.6 grams of methamphetamine, and the third baggie contained 12.4 grams of cocaine.

Approximately six years before these crimes, defendant was searched by deputies at the Sacramento County Jail after being arrested and was hiding a baggie of drugs in her underwear containing a total of 3.4 grams of cocaine base that was packaged for individual use.

The Defense

On December 6, 2004, defendants grandmother won $24,000 playing bingo and gave defendant $750 of her winnings.

In closing, defense counsel argued that the deputies had planted the drugs on defendant.

DISCUSSION

I

The Court Did Not Err In Handling The Juror Misconduct

Defendant raises the following three contentions relating to the courts handling of juror misconduct that occurred after deliberations had begun: (1) the postsubmission substitution of jurors violated her constitutional rights; (2) the trial court prejudicially erred in refusing to excuse Juror No. 9 for misconduct; and (3) the trial courts investigation into the juror misconduct was inadequate. Before considering these contentions, we summarize the courts investigation of the juror misconduct.

During the fourth day of jury deliberations, the bailiff told the court that Juror No. 6 asked him if they were only supposed to be deliberating in the jury deliberation room? When the bailiff told her yes, Juror No. 6 said that during the previous days lunch break, she overheard Jurors Nos. 3 and 12 discussing the case in the front hallway. The bailiff told her he would relay this information to the court.

The court then questioned Juror No. 6. Juror No. 6 explained that in the morning outside the hallway of the deliberation room, she had overheard Jurors Nos. 3 and 12 whispering about [v]arious things . . . we were talking about in the jury room. They were talking about the cops being the bad guys. Theyre, you know, planting, you know, planting this stuff on [defendant]. [M]ost of [the conversation] was a whole lot of speculation, conjectures, theories, hypotheses. The conversation went on for only about five minutes because the bailiff showed up to bring all the jurors back into the deliberation room. Juror No. 6 heard what was said because she was the only one near the conversation although just about everybody was there waiting to be let back into the deliberation room.^[1] She was later approached by the foreperson, Juror No. 4, who had observed the interaction between Jurors Nos. 3 and 12 but had not overheard what they had said. Juror No. 6 confirmed that something had gone on, but did not tell Juror No. 4 or any other juror what she had overheard.

The court then questioned the foreperson, Juror No. 4. Juror No. 4 explained that the previous day when the other jurors were lined up in the hallway, she saw Jurors Nos. 3 and 12 leaning in, kind of talking for quite a long time right next to Juror No. 6. Nobody from the jury was standing or sitting next to Jurors Nos. 3 and 12 except for Juror No. 6. Juror No. 4 could not hear what the two were saying. She speculated the two might have been talking about the case because they were serious, [l]ooking up, [l]eaning in, and whispering. She did not say anything until the next day when she approached Juror No. 6, who confirmed that Jurors Nos. 3 and 12 were talking about the case. Juror No. 6 did not tell Juror No. 4 what she had overheard. Juror No. 4 believed the observation, was . . . obvious, but none of the other jurors had said anything about it.

The court then questioned Juror No. 3. The court told her that it had been reported that she might have had a discussion with a fellow juror about the case outside of the jury room in the hallway on a recess and wanted to ask [her] about that, and see if that, in fact, [wa]s the case. When asked if that was accurate, Juror No. 3 responded, Well, not that I know of. She said the only thing she could think of was that day in the hallway she asked Juror No. 8 to repeat something she (Juror No. 8) had said in the deliberation room because she (Juror No. 3) had not heard it. Juror No. 8 responded, Well, you know, shouldnt we go back into the jury room? Juror No. 3 said that everyone else had heard it except her, and then Juror No. 8 repeated what she had said in the deliberation room. When asked by the court if there was another occasion when she might have had a conversation outside the hallway with another juror, Juror No. 3 responded, I cant think of one. When asked whether she had a conversation in the hallway with Juror No. 12 about the case, she responded, No. When asked if she had a conversation with Juror No. 12 in the hallway about a topic unrelated to this case, she responded that she had not talked to Juror No. 12 much, but that she had seen him at breakfast that morning and he mention[ed] the case, but [they] didnt really discuss it or anything.

The court then questioned Juror No. 12. Juror No. 12 said he had instigated three or four conversations with other jurors about the case outside the deliberation room. He spoke with Juror No. 3 in the cafeteria that morning about prepar[ing] notes and how the case was going. He also spoke with Juror No. 3 the previous day while they were seated outside the deliberation room about how she thought the case was going, but he could not recall whether they talked about their thoughts on the evidence. At some point he had spoken with Juror No. 3 about the defense theory that evidence was planted. He spoke with Juror No. 9 about the case that day in the cafeteria. He talked more extensively with Juror No. 9 in Old Sacramento that day about the facts or analysis of the facts of the case. He spoke with Juror No. 7 that day outside the downstairs hall about our approach and why we are or are not making progress.

The court then questioned Juror No. 9. Juror No. 9 had a quick five-minute conversation the previous day with Juror No. 12 outside the deliberation room about his (Juror No. 9s) point of view. Juror No. 9 did not remember anybody else being there. He had a second conversation with Juror No. 12 that day at lunch in Old Sacramento when Juror No. 12 brought up a hypothetical that Juror No. 12 had discussed earlier in the day in the deliberation room. The hypothetical had facts similar to this case, but [n]o names of this case were brought in. Juror No. 9 did not share this conversation with any other juror. Juror No. 9 also said that he had commented outside the deliberation room to Juror No. 11 that he (Juror No. 9) was just going to let the jury discussion just fold, and [he was] not going to speak up anymore.

Lastly, the court questioned Juror No. 7. Juror No. 7 said that Juror No. 12 had approached him on more than one occasion and was just kind of expressing but not talking about the case. Once when they were walking down the hall, Juror No. 12 expressed his concern about how long this is taking. That day when they were getting on the elevator, Juror No. 7 complimented Juror No. 12 for his drawings on the board in the deliberation room. Juror No. 7 denied talking to any of the jurors about the facts outside the deliberation room and thought everyone is really careful not to talk about the actual case.

After the court had finished questioning these jurors, the People asked the court to remove Jurors Nos. 3 and 12 for misconduct. The court granted the Peoples request and removed those jurors, noting that it had admonished the jurors pretrial to discuss the case only in the deliberation room when all jurors were present, it repeated the instruction at the conclusion of the case, and repeated it every time they had a recess.

As to Juror No. 3, the court reasoned that she understood the admonition but blatantly lied to the Court. The court just did not believe her . . . based on her demeanor, based on the fact that she wouldnt make eye contact with [the court] . . . [and] on her visible reaction when [the court] asked her the questions.

As to Juror No. 12, the court reasoned that he also understood the admonition because when [the] court asked him if he had, in fact, been engaging in communications with other jurors outside the jury deliberation room, he hung his head down, and then paused, and then looked at [the court] and closed his eyes for a minute, and then said yes, and proceeded to indicate . . . that he has had communications with other jurors about the case. The court believed that Juror No. 12 systematically approach[ed] different jurors and tr[ied] to engage them in a conversation about the -- this case.

As to the other jurors who discussed the case outside the deliberation room, the court ruled they had not engaged in misconduct. Specifically, as to Juror No. 9, the court reasoned that he was truthful with the Court in terms of answering the questions that [the court] posed to him and [w]hile he may have talked about the case, it [wa]s not to the extent that [Juror No. 12] and [Juror No. 3] ha[d].

Defense counsel then move[d] for [a] mistrial on the grounds that we really dont know the full import of what has gone on and the jury [wa]s polarized. The court denied the request.

The next day, defense counsel asked the court to remove Juror No. 9 for his misrepresentations. The court denied the request. The court explained that the distinction between the conduct exhibited by the removed jurors and Juror No. 9 was that the conduct of Jurors Nos. 3 and 12 was malicious, and they were dishonest with the court.

The court then replaced Jurors Nos. 3 and 12 with the two alternates and admonished all of the jurors that they were to set aside and disregard all past deliberations and begin [their] deliberations all over again.

A

Postsubmission Substitution Of Jurors Is Constitutional

Defendant contends the postsubmission substitution of jurors allowed under Penal Code^[2]section 1089 violated her constitutional rights. She is mistaken.

Section 1089 authorizes substitution of an alternate juror before or after final submission of the case to the jury on a showing of good cause. Postsubmission substitution does not violate a defendants right to a trial by jury and its essential element of a unanimous verdict provided the trial court instructs the jury to commence deliberations anew. (People v. Collins (1976) 17 Cal.3d 687, 691-694.) Here, as we have noted, the court instructed the jurors that with the replacement of two of the jurors it must set aside and disregard all past deliberations and begin your deliberations all over again. As defendant recognizes, we are bound to follow the Supreme Courts holding in Collins. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Despite defendants arguments to the contrary, there is no cogent reason for us to urge the California Supreme Court to reconsider Collins.

B

The Court Did Not Err In Failing To Remove Juror No. 9

Defendant contends the court prejudicially erred in refusing to excuse Juror No. 9 for misconduct, violating defendants right to a fair trial and an impartial and unbiased jury. We disagree.

Although the trial court may substitute an alternate juror before or after final submission of the case to the jury on a showing of good cause (section 1089), its discretion to determine good cause is limited (People v. Collins, supra, 17 Cal.3d at p. 696), and the inability of the excused juror to perform his duty must appear in the record as a demonstrable reality (People v. Halsey (1993) 12 Cal.App.4th 885, 892). Many cases have considered the exercise of this trial court discretion. Few have found abuse. (Halsey, at p. 892.) This case is no exception.

The trial courts questioning of Jurors Nos. 9 and 12 showed that it was Juror No. 12 who instigated the two conversations with Juror No. 9 outside the deliberation room. Juror No. 9 was responsible only for making a minor comment to another juror (Juror No. 11) outside of deliberations regarding Juror No. 9s decision not to speak up anymore. When the court reminded Juror No. 9 that you are not to talk about this case to anyone outside that jury deliberation room, even another juror, he acknowledged that he understood and apologized. The trial court found Juror No. 9 truthful in his answers to the court and that [w]hile he may have talked about the case, it [wa]s not to the extent that [Juror No. 12] and [Juror No. 3] ha[d].

Given Juror No. 9s explanations for his conduct, the courts finding that he was truthful, his acknowledgment that he understood the admonition not to talk about the case outside of deliberations, and his apology for his conduct, the court did not err, constitutionally or otherwise, in keeping him on the jury.

C

The Courts Investigation Into The

Juror Misconduct Was Adequate

Defendant contends the trial courts investigation into the juror misconduct was inadequate. Specifically, she faults the court for failing to adequately question the six jurors that it did question and failing to question the remaining six jurors. Assuming this issue was properly preserved for appellate review, we find it unmeritorious.

When a trial court is put on notice that good cause to discharge a juror may exist, it is the courts duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error. (People v. Farnam (2002) 28 Cal.4th 107, 141.) Here, [c]ontrary to defendants assertions, the trial courts inquiry was more than adequate. (Ibid.)

The trial court held an extensive hearing on the matter that spanned 66 pages of reporters transcript. It first questioned Juror No. 6, who reported hearing the misconduct between Jurors Nos. 3 and 12. It then questioned Juror No. 4, whom Juror No. 6 said had witnessed (but not heard) the interaction between Jurors Nos. 3 and 12. Contrary to defendants suggestion, it was not imperative for the court to interview the other jurors who were lined up in the hallway near Jurors Nos. 3 and 12 because there were no other jurors in the area where the discussion had taken place, although others might have observed the interaction.

The court then questioned Jurors Nos. 3 and 12 who were implicated in the misconduct and in turn questioned Jurors Nos. 9 and 7 whom Juror No. 12 said he had spoken with outside of deliberations. Juror No. 9, whom the court did not remove, was reminded not to talk about this case to anyone outside that jury deliberation room, even another juror, and he apologized and acknowledged that he understood the courts admonition.

Although at least some of these jurors mentioned speaking with jurors other than the ones the court interviewed, there was nothing about these discussions to alert the court that the other jurors needed to be interviewed or removed.

Finally, the court entertained motions from both sides regarding the possible removal of certain jurors and explained in detail the factual and legal bases for its ruling on the motions.

On this record, the court had ample basis for determining whether [the jurors] could fulfill their obligations as jurors. No more was required. (People v.Farnam, supra, 28 Cal.4th at p. 141.) The court therefore did not err, constitutionally or otherwise, in its investigation of juror misconduct.

II

The Trial Court Did Not Err In Denying

Defendants Pitchess Motion

Defendant contends the trial court erroneously denied her motion to discover information in police personnel files under Pitchess v. Superior Court (1974) 11 Cal.3d 531 because she presented a plausible factual scenario that police planted the evidence, made a false arrest, committed perjury, and falsified police reports and probable cause. We find no error in the trial courts ruling.

To obtain disclosure of police personnel records, a defendant must submit an affidavit showing good cause for the discovery or disclosure sought. (Evid. Code, 1043, subd. (b)(3).) Good cause for discovery exists when the defendant shows both materiality to the subject matter of the pending litigation and a reasonable belief that the agency has the type of information sought. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.) A showing of materiality requires a defendant to set forth a specific factual scenario of officer misconduct that establishes a a plausible factual foundation and articulate[s] a valid theory as to how the information sought might be admissible at trial. (Id. at p. 1025.) We review the trial courts denial of discovery of information from police personnel files for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)

Applying these standards from Warrick, the court in People v. Thompson (2006) 141 Cal.App.4th 1312 (Thompson), held that the defendant failed to show good cause for the requested discovery because he did not present a specific factual scenario that [wa]s plausible when read in light of the pertinent documents and undisputed circumstances. (Id. at p. 1316.) There, the police claimed that the defendant gave an undercover officer cocaine base in exchange for two prerecorded $5 bills. (Id. at p. 1315.) The officer was wired during the transaction, and several other officers who were part of the buy team watched and listened to the transaction. (Ibid.) The defendant was arrested by the other officers after the exchange was completed, and the prerecorded bills were found on his person. (Ibid.) Defense counsel moved for discovery of the officers personnel records, stating in a declaration that the defendant did not sell drugs to the officer and the officers did not recover any buy money from the defendant. (Id. at p. 1317.) The defendant claimed that he was in an area where the officers were making arrests, and the officers fabricated the events when they realized he had a prior criminal history. (Ibid.)

The Thompson court concluded the defendants factual scenario was not plausible, because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense. Thompson, through counsel, denied he was in possession of cocaine or received $10 from Officer Saragueta. But he does not state a nonculpable explanation for his presence in an area where drugs were being sold, sufficiently present a factual basis for being singled out by the police, or assert any mishandling of the situation prior to his detention and arrest. Counsels declaration simply denied the elements of the offense charged. (Thompson, supra, 141 Cal.App.4th at p. 1317.) We find this case similar to Thompson.

Defense counsels first declaration in support of the Pitchess motion asserted that a substantial issue in the case involved fabrication of charges and/or evidence, false arrest, and illegal search and seizure by the officers involved due to the acts of dishonesty based upon the altered police report, excessive and illegal use of a police dog used for the purpose of intimidation and threats by officers Erin McAtee, . . . K. Manning . . . , Puffer, . . . and [O]fficer Peterson.

In two supplemental declarations, defense counsel further asserted that defendant did not possess the narcotics; Deputy McAtee made inconsistent statements in the police report such as giving different apartment numbers for the apartment which defendant entered, and although McAtee allegedly obtained narcotics sold to a confidential informant by the defendant, [t]here were no reports written about those narcotics and apparently [they] were never turned into evidence; Deputy Puffer used a police dog in an intimidating fashion supposedly to sniff out narcotics but the dog never found any narcotics, even though narcotics were later seized from the defendant; Deputy Manning was able to find narcotics that the dog could not detect which was highly improbable, and [s]he was aware of the other officers wrongdoing and she joined in with them.

The trial court denied the Pitchess motion because defendant failed to raise a plausible factual scenario that would constitute a defense. We agree with the trial court.

To find defendants version of events plausible, the police must have initially lied about the informant to get the warrant, lied later on during the day of the search about the police dog,^[3]lied about finding marijuana on defendant when they searched her in the Rite-Aid parking lot, and lied about finding methamphetamine and cocaine when Deputy Manning searched her underwear in the apartment. Defense counsels declarations simply did not present a factual basis for [defendant] being singled out by the police. (Thompson, supra, 141 Cal.App.4th at p. 1317.) Moreover, the declarations failed to explain when or how the police planted the marijuana, methamphetamine, or cocaine on defendant, and they failed to explain any of the other evidence the deputies found on defendant and in her car that supported her possession-for-sale convictions, namely, the pager, digital gram scale, and large amount of cash.

Just as in Thompson, while defendants scenario is not totally beyond the realm of possibility in the sense that virtually anything is possible, Warrick did not redefine the word plausible as synonymous with possible, and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations. (Thompson, supra, 141 Cal.App.4th at pp. 1318-1319.) The trial court here made such a common sense determination in finding defendants factual scenario was not plausible, and on appeal, we uphold that determination as a reasonable exercise of discretion. Because we find no abuse of discretion, we reject defendants claim that the error violated [her] constitutional rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

III

The Trial Court Did Not Err In Failing To Compel

Disclosure Of The Confidential Informants Identity

Defendant contends the trial court erred in failing to compel the People to disclose the identity of the confidential informant (CI) because the CI could provide material evidence to attack[] the affidavit attached to the search warrant and to challenge defendants guilt of the charged crimes. We find no error in the courts ruling.

A public entity may refuse to disclose the identity of an informant where disclosure is against the public interest because the necessity for preservation of confidentiality outweighs the necessity for disclosure in the interests of justice. (Evid. Code, 1041, subd. (a)(2).) Where a search is conducted pursuant to a facially valid warrant, disclosure of the informants identity is not required to establish the legality of the search or the admissibility of evidence obtained as a result of the search. (Evid. Code, 1042, subd. (b); People v. Luttenberger (1990) 50 Cal.3d 1, 24 [where informants tip goes only to probable cause, his or her identity is absolutely privileged].)

Notwithstanding these limitations, the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] (People v. Lawley (2002) 27 Cal.4th 102, 159.)

When in [a] criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. . . . During the hearing, . . . the prosecuting attorney may request that the court hold an in camera hearing. . . . The court shall not order disclosure, . . . nor dismiss the criminal proceeding . . . unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. (Evid. Code, 1042, subd. (d).)

We review the trial courts ruling on a motion to disclose the identity of an informant for abuse of discretion. (People v. Dimitrov (1995) 33 Cal.App.4th 18, 31.)

Here, the trial court correctly denied defendants motion to disclose the CIs identity based on lack of exculpatory or material evidence. According to the search warrant affidavit, the CI made controlled buys of cocaine from defendant between August 3 and August 10, 2004, and December 2 and December 9, 2004. However, defendant was not charged with the sale of drugs to the CI. Defendant was charged with possession for purposes of sale of the drugs found during a subsequent search, and there was no evidence the CI was a percipient witness to the search. If the informer is not a percipient witness to the events which are the basis of the arrest, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest. Thus, when the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility. (People v. Hardeman (1982) 137 Cal.App.3d 823, 828-829.) In such circumstances the cases have consistently found the confidential informant not a material witness. (In re Benny S. (1991) 230 Cal.App.3d 102, 108-109.)

On this record, the court did not err, constitutionally or otherwise, in failing to disclose the CIs identity, and review of the sealed transcript is unnecessary. Because we find no error in the courts ruling, we reject defendants assertion that the trial courts error violated her due process rights under both the state and federal [C]onstitutions.

IV

There Was No Cumulative Prejudice

Defendant contends the cumulative effect of the errors requires reversal of her convictions. Because we have found no errors, defendants contention fails.

V

Defendants Consecutive Sentences For Possessing Two Different Types Of Drugs For Sale Do Not Violate Section 654

Defendant contends her consecutive sentences for possession of methamphetamine for sale and possession of cocaine for sale violate section 654 because both drugs were found inside a single package hidden in her underwear. We find no error.

[T]he possession of different drugs or controlled substances not only may violate different statutes, but may also be separately punished. (People v. Menius (1994) 25 Cal.App.4th 1290, 1296.) Section 654 does not preclude multiple punishment for simultaneous possession of various narcotic drugs. (People v. Barger (1974) 40 Cal.App.3d 662, 672.) [D]ifferent drugs are directed at different buyers--in some cases, at different classes of buyers--and represent different dangers to society. It would be absurd to hold that a criminal who deals in one contraband substance can expand the scope of his inventory without facing additional consequences. (Menius, at p. 1297.)

Despite these authorities, defendant relies on In re Adams (1975) 14 Cal.3d 629 to argue that the court violated section 654 in imposing double punishment for the drug offenses. In Adams, the defendant transported five different controlled substances that he intended to deliver to one specific individual in a single transaction. (Id. at p. 632.) The California Supreme Court held that defendant could be punished only once for transporting the controlled substances because the simultaneous transportation of multiple substances was motivated by a single objective. (Id. at p. 635.) The court, however, distinguished the facts before it from cases involving possession of multiple substances and declined to disapprove cases holding that multiple punishments may be imposed for possession of multiple substances. (Ibid.)

Based on this distinction for possession as opposed to transportation, the other authority we have discussed, and defendants possession of three separate baggies of cocaine and methamphetamine, the court did not err in imposing consecutive sentences for defendants possession for sale of two different drugs.

VI

Defendants Consecutive Sentences Did Not Violate

Her Constitutional Rights

Defendant contends imposition of consecutive sentences violated her constitutional rights as last recognized in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856].^[4] We disagree.

In Cunningham, the Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham v. California, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36].) Cunningham did not address whether the decision to run separate sentences concurrently or consecutively must be made by the jury.

Section 669 imposes that duty on the trial court and in most cases, is a matter of the trial courts discretion. (People v. Morris (1971) 20 Cal.App.3d 659, 666.) While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required. The trial court is required to determine whether a sentence shall be consecutive or concurrent but is not required to presume in favor of concurrent sentencing. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.)

Section 669 provides that when a trial court fails to determine whether multiple sentences are to run concurrently or consecutively, they shall run concurrently. However, this does not create a presumption or other entitlement to concurrent sentencing. It merely provides for a default in the event the court neglects to perform its duty in this regard.

The trial court is required to state reasons for its sentencing choices, including a decision to impose consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(5); People v. Walker (1978) 83 Cal.App.3d 619, 622.) This requirement serves a number of interests: it is frequently essential to meaningful review; it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision; and it aids in preserving public confidence in the decision-making process by helping to persuade the parties and the public that the decision-making is careful, reasoned and equitable. (People v. Martin (1986) 42 Cal.3d 437, 449-450.) However, the requirement that reasons for a sentence choice be stated does not create a presumption or entitlement to a particular result. (See In re Podesto (1976) 15 Cal.3d 921, 937.)

Therefore, entrusting to the trial court the decision whether to impose concurrent or consecutive sentences is not precluded by Cunningham. In this state, every person who commits multiple offenses knows that, if convicted, he or she runs the risk of receiving consecutive sentences without any further factual findings. While such a person has the right to the exercise of the courts discretion, the person does not have a legal right to concurrent sentencing. As the Supreme Court said in Blakely v. Washington (2004) 542 U.S. 296, 309 [159 L.Ed.2d 403, 417], that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. Accordingly, defendants constitutional rights were not violated when the trial court imposed consecutive sentences.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

RAYE , Acting P.J.

BUTZ , J.

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^[1] Jurors Nos. 12, 3, and 6 were all seated in a row, with Jurors Nos. 12 and 3 seated together on the end.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.

^[3] The police reports make no mention of a police dog. At trial, Deputy Ruiz testified that he was the canine handler of the narcotic task force and that his dog is trained to scratch very vigorously at the location where the dog detects the odor of narcotics. He never uses his dog to search people because of the obvious possibility of injury. The dog was used only to search defendants car and the apartment.

^[4] We reject the Peoples claim that defendant forfeited this argument because she failed to raise it in the trial court. At the time defendant was sentenced on May 19, 2006, the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 was the law in California, making any objection on this issue futile.