P. v. Carpenter




Filed 3/15/17 P. v. Carpenter CA4/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS COLE CARPENTER,

Defendant and Appellant.



E064929

(Super.Ct.No. BLF1300185)

OPINION


APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Theodore Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Marcus Cole Carpenter, guilty of (1) conspiring to transport marijuana (Pen. Code, § 182, subd. (a)(1);Health & Saf. Code, § 11360, subd. (b)); (2) conspiring to possess marijuana for sale (Pen. Code, § 182, subd. (a)(1);Health & Saf. Code, § 11359); (3) possessing marijuana for sale (Health & Saf. Code, § 11359); (4) bringing a controlled substance into a prison (Pen. Code, § 4573); and (5) possessing marijuana in a prison (Pen. Code, § 4573.6).Defendant admitted suffering two prior strike convictions (Pen. Code, §§ 667, subds. (c)&(e)(1), 1170.12, subd. (c)(1)) and two prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)).The trial court sentenced defendant to prison for a term of six years, to be served consecutive to a prison term defendant was serving for a prior case.
Defendant raises two issues on appeal. First, defendant contends he cannot legally be convicted of both conspiracy to transport marijuana and conspiracy to possess marijuana for sale.Second, defendant contends the trial court erred by not conducting a hearing to determine if the jury had been improperly influenced.We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. PROSECUTION’S CASE
On August 3, 2013, defendant was incarcerated at Ironwood State Prison.On that day, defendant had a visit with Shamika Stallings.The visit was terminated after five hours due to correctional officers observing excessive physical contact between defendant and Stallings.After the visit was terminated, officers discovered defendant ingested balloons containing marijuana and tobacco while kissing Stallings.
Defendant explained that he and Stallings had arranged the transfer of marijuana during a prior visit.During the August 3 visit, the balloons were transferred during six kisses.After each kiss, Stallings went to the bathroom and placed more balloons in her mouth.
Defendant swallowed 36 balloons of marijuana and three balloons of tobacco.The balloons were approximately the size of a peanut M&M candy.In prison, marijuana is measured by toothpaste caps or chapstick caps.A cap-sized amount of marijuana would be worth approximately $50 in prison. Tobacco in the same amount would be worth $10 to $20.The total amount of marijuana was 25.57 grams. The total amount of tobacco was 3.06 grams.
Defendant told a correctional officer he had planned to sell the drugs. Defendant intended to sell the marijuana for “$50 for a cap and a hundred dollars for [a] gram.”The total value of the marijuana in prison was approximately $3,700.A urine sample taken from defendant on August 7 tested positive for marijuana.
B. DEFENDANT’S CASE
Defendant presented evidence that the marijuana was for personal use.Richard Lichten, a former Los Angeles County Sheriff’s Sergeant, who served as a watch commander overseeing jail operations, testified as an expert.Lichten believed the marijuana was for personal use because (1) the balloons were not a uniform weight, some weighed .7 grams, one weighed .48 grams, one weighed .5 grams, and another weighed .8 grams, which indicated the balloons were not prepackaged for sale;(2) 25.27 grams of marijuana is “not a big amount” for personal use;(3) defendant’s confession that he intended to sell the marijuana was not recorded, despite the prison having recording capabilities;(4) defendant handwrote a confession, which included information about receiving the marijuana, but nothing about intent to sell the drug;(5) correctional officers did not search defendant’s cell to look for a chapstick cap with marijuana residue or packaging materials;and (6) defendant tested positive for marijuana.
C. SENTENCE
The trial court imposed a six-year sentence for the offense of bringing a controlled substance into a prison. (Pen. Code, § 4573.)[1] The sentences for all of defendant’s other convictions in this case were stayed pursuant to section 654.
DISCUSSION
A. CONSPIRACY
1. DEFENDANT’S CONTENTION
Defendant contends he cannot legally be convicted of both conspiracy to transport marijuana and conspiracy to possess marijuana for sale because the two convictionsarise from a single agreement.
When there is a single agreement, even if that single agreement contemplates multiple crimes, there is a single conspiracy. (Braverman v. U.S. (1942) 317 U.S. 49, 53-54 (Braverman).) Typically, “a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’ [Citations.] Section 954 generally permits multiple conviction[s]. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same “act or omission.”’” (People v. Correa (2012) 54 Cal.4th 331, 337.)
In Braverman, the United States Supreme Court wrote,conspiracy “differs from successive acts which violate a single penal statute and from a single act which violates two statutes. [Citations.] The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute . . . . For such a violation only the single penalty prescribed by the statute can be imposed.” (Braverman, supra, 317 U.S. at p. 54.)
In Braverman, the petitioners were convicted of seven counts of conspiracy, which all traced back to a single agreement. (Braverman, supra,317 U.S. at pp. 50-51.) For each conviction, a two-year punishment could be imposed. The trial court sentenced each petitioner to eight years imprisonment. (Id. at p. 51.) The high court concluded there was a single agreement, and reversed the judgment of conviction for the petitioners to be resentenced. (Id. at pp. 52, 55.)
It is unclear to us in reading Braverman whether, when a single conspiracy has multiple underlying felonies,(1) there can only be a single conspiracy conviction, or (2) there can be multiple conspiracy convictions, but a single punishment (§§ 654, 954). On one hand the court explains that conspiracy differs “from a single act which violates two statutes,” and the court reversed the judgment of conviction, which would seemingly set it apart from the application of section 654. However, the court also writes that, because conspiracy is different, “only the single penalty prescribed by the statute can be imposed,” and it directed the trial court to resentence the petitioners—not to reduce the number of convictions—whichwould suggest section 654 could be applied. (Braverman, supra, 317 U.S. at pp. 54-55.)
Some courts have interpreted Braverman as permitting multiple conspiracy convictions for a single agreement, so long as there is only one sentence. (U.S. v. Colson (1981 11th Cir.) 662 F.2d 1389, 1392; Bramblett v. U.S. (1956 D.C. Cir.) 231 F.2d 489, 491-492; U.S. v. Mori (1971 Fifth Cir.) 444 F.2d 240, 245-246.) Other courts have interpreted the lawas permitting only one conspiracy conviction for a single agreement, even if that conspiracy has multiple underlying crimes. (Haji v. Miller (2008 E.D.N.Y.) 584 F.Supp.2d 498, 520; State v. Gallegos (2011) 149 N.M. 704, 718; State v. Pham (2006) 281 Kan. 1227, 1262.)
In California, section 654 addresses the issue of multiple convictions arising out of a single act or omission. The remedy provided by section 654 is to stay the punishment for the duplicitous convictions. (People v. Mesa (2012) 54 Cal.4th 191, 195.) For example, a defendant may be convicted of multiple crimes resulting from a single act of non-consensual intercourse. A trial court, upon finding the defendant had a single intent, may stay the sentences for all but one of defendant’s convictions pursuant to section 654. (People v. White (2017) 2 Cal.5th 349, 356.) We see no legal difference between the single incident of unlawful intercourse and the single unlawful agreement—section 654 applies in both situations. Therefore, we conclude there was no error because the trial court applied section 654 to both of defendant’s conspiracy convictions, thereby guaranteeing defendant is not being punished twice for a single conspiracy.Thus, defendant can properly be convicted of conspiracy to transport marijuana and conspiracy to possess marijuana, and there is no error because he is not being subjected to double punishment.
2. PEOPLE’S CONTENTION
The People had difficulty understanding defendant’s Appellant’s Opening Brief, in particular the contention addressed ante.As a result, the People offer different theories as to whatdefendant’s contention might be.One theory the People present is as follows: If the trial court had a sua sponte duty to instruct the jury that it must determine whether both conspiracy counts constituted a single, all-inclusive conspiracy, then the trial court erred by not giving that instruction. (CALJIC No. 17.05.) The People note there is currently a split in the courts of appeal as to whether trial courts have a sua sponte obligation to give such an instruction. The People concede that, if this court concludes there is a sua sponte duty, then the trial court erred and defendant’s conviction for conspiracy to possess marijuana should be reversed.In defendant’s Appellant’s Reply Brief, he agrees with the People’s assertion and concession that if the trial court had a sua sponte instructional duty concerning the conspiracy charges, then one of defendant’s conspiracy convictions should be reversed.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) We apply the de novo standard of review. (People v. Covarrubias (2016) 1 Cal.5th 838, 919.)
This court held, in a prior case, that there is no sua sponte duty to instruct the jury on the issue of whether there was a single conspiracy or multiple conspiracies. (People v. McLead (1990) 225 Cal.App.3d 906, 921.) Courts that have concluded there is no sua sponte duty view the issue as a question of law. (Ibid.; People v. Liu (1996) 46 Cal.App.4th 1119, 1133 [First Dist., Div. Three].) Courts that have concluded there is a sua sponte duty view the question as one of fact. (People v. Meneses (2008) 165 Cal.App.4th 1648, 1670 [First Dist., Div. Four]; People v. Jasso (2006) 142 Cal.App.4th 1213, 1220-1223 [Sixth Dist.]; People v. Morocco (1987) 191 Cal.App.3d 1449, 1453 [Fourth Dist., Div. One].)
In McLead, this court concluded there was not a sua sponte instructional duty; this court wrote that we agreed with the analysis in People v. Davis (1989) 211 Cal.App.3d 317. (McLead, supra, 225 Cal.App.3d at p. 921.) Davis concerned solicitation of murder—not conspiracy. (Davis, at p. 323.) The Davis court reasoned that the number of solicitations is not a question of fact for the jury because there are “‘necessarily as many solicitations as potential victims.’” (Id. at pp. 322-323.)
The Davis reasoning does not easily extend to conspiracy cases because conspiracies are counted by agreements, not victims or objectives. (People v. Meneses, supra,165 Cal.App.4th at pp. 1670-1671.) The issue of whether one or more agreements existed is a question of fact best decided by a jury. A trier of fact is better positioned to determine if an agreement was all-encompassing with multiple underlying crimes, or if there were separate agreements for each underlying crime. (People v. Morocco, supra,191 Cal.App.3d at p. 1453.)
In the instant case, defendant told a correctional sergeant that defendant and Stallings had “arranged it in a prior visit . . . for her to bring in the balloons with the marijuana.”Defendant was charged with conspiracy to transport marijuana (Pen. Code, § 182, subd. (a)(1);Health & Saf. Code, § 11360, subd. (b)) and conspiracy to possess marijuana for sale (Pen. Code, § 182, subd. (a)(1);Health & Saf. Code, § 11359).The evidence reflected one agreement between defendant and Stallings.Because defendant was charged with two counts of conspiracy, and the evidence supported the finding that there was one agreement, the jury should have been instructed to find whether there was one conspiracy or two conspiracies so as to clarify the jury’s understanding of the number of conspiracies. (CALJIC No. 17.05; People v. Jasso, supra,142 Cal.App.4th at pp. 1222-1223.) We conclude the trial court erred by not giving the instruction.
The trial court’s error is harmless beyond a reasonable doubt under the federal standard. (People v. Flood (1998) 18 Cal.4th 470, 504 [harmless beyond a reasonable doubt].) It is also harmless under the state standard because it is not reasonably probable defendant would have achieved a more favorable outcome absent the error. (Id. at p. 490.) If the jury had been instructed to determine if there were one overarching conspiracy or two separate conspiracies, the best result for defendant would have been the jury finding that there was a single conspiracy. The trial court would have then applied section 654 to at least one of defendant’s conspiracy sentences. At sentencing, the trial court applied section 654 to both of defendant’s conspiracy convictions.Accordingly, the instructional error was harmless because the best situation defendant could have hoped for, had the instruction been given, has already occurred—both of defendant’s sentences for conspiracy were stayed pursuant to section 654.
B. JURY
1. PROCEDURAL HISTORY
While the jury was lining up to enter the deliberation room, Stallings allegedly photographed the jurors. The jury foreperson told the courtroom deputy about Stallings allegedly photographing the jurors. The deputy informed the trial court. The court asked the deputy to locate Stallings. The deputy tried but was unsuccessful.The trial court informed the parties of the foreperson’s message to the deputy and the deputy’s unsuccessful attempt to locate Stallings.
The prosecutor argued that the jury’s deliberations were not affected by the incident. Defendant asserted the court should question the jurors to determine if the jury’s deliberations were affected.The trial court said there was “no indication from any source whatsoever that anyone’s sensibilities were heightened to the level that it would have affected one way or another in their coming to a fair and honest verdict. So I have no intent[ion of] questioning the jurors individually on this topic.”The trial court said it had planned to question Stallings as to “what she was doing.”The trial court’s plan to question Stallings was thwarted when the deputy was unable to locate Stallings.
Defendant argued there was too little information provided by the deputy to know how the jurors were feeling.The prosecutor asserted the jury immediately began deliberating, so there was no indication their deliberations were impeded by Stallings’s behavior.The trial court repeated there was no indication any jurors were anxious or otherwise affected by the possibility that Stallings photographed the jurors. The trial court did not question the jurors.
2. ANALYSIS
Defendant contends the trial court violated his right to an impartial jury by not questioning the jurors as to whether they were influenced by Stallings possibly photographing the jury.
“If at any time . . . a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate . . . .” (§ 1089.) “‘The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] . . . [¶] As . . . cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute “good cause” to doubt a juror’s ability to perform his duties and would justify his removal from the case.’” (People v. Cleveland (2001) 25 Cal.4th 466, 478.) We review the trial court’s decision under the abuse of discretion standard. (People v. Duff (2014) 58 Cal.4th 527, 561.)
There is nothing in the record suggesting jurors were unable to perform their duties due to Stallings possibly photographing them. For example, the jurors did not ask to be removed from the jury and they did not cease or suspend deliberations. The record reflects the jury continued with its deliberations.The trial record does not contain any information regarding jurors feeling distressed by the possible photography or any information about the jurors’ ability to perform their duties. Given there was no information causing doubt about the jurors’ ability to perform their duties, the trial court acted reasonably in not investigating the matter further.
Defendant asserts the trial court should have questioned the jurors because “[o]ne or more jurors could have easily seen Stallings taking pictures of them.”Defendant’s argument is based upon speculation, not evidence in the record. Because nothing in the trial record indicates a juror may have been unable to perform his/her duties, the trial court could reasonably conclude further inquiry was not required.[2]
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS



MILLER
J.


We concur:


HOLLENHORST
Acting. P. J.


SLOUGH
J.


[1]All further statutory references are to the Penal Code unless otherwise indicated.
[2] After the trial, defendant filed a motion for new trial based upon the jurors being intimidated by Stallings.In defense counsel’s declaration attached to the motion, based upon a posttrial discussion with jurors,she declared jurors “stated they were concerned because they believed that Ms. Stallings had their photographs and some of them lived near her residence.”The trial court denied the motion finding no evidence ofjuror misconduct.We do not rely on posttrial hearsay evidence in analyzing whether defendant’s conviction should be reversed, and therefore have not included this information in our analysis. (People v. Williams (1988) 45 Cal.3d 1268, 1318, abrogated on a different point in People v. Diaz (2015) 60 Cal.4th 1176, 1190; People v. Manson (1976) 61 Cal.App.3d 102, 216.)