P. v. Ma

Filed 10/17/06 P. v. Ma CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed as modified.

Leonard M. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.

* * *

A jury convicted Binh Thanh Ma of possession for sale of methamphetamine (Health & Saf. Code, § 11378), sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)).[1] The jury found true the allegation Ma was personally armed with a firearm (§ 12022, subd. (c)) during commission of the Health and Safety Code violations. The court found true the allegations Ma committed the offenses while out on bail in two separate cases (§ 12022.1, subd. (b)) and Ma suffered a prior strike (§ 667, subds. (d) & (e)(1)) and two prior prison terms (§ 667.5, subd. (b)). The court sentenced Ma to prison for 14 years and four months, consisting of 6 years for transportation of methamphetamine, one year and four months for possession of a firearm by a felon, four years for the firearm enhancement attached to the transportation of methamphetamine offense, two years for the enhancement for committing a felony while released on bail, and one year for a prior prison term enhancement.[2]

Ma contends insufficient evidence supports his convictions for transportation and possession for sale of methamphetamine. Alternatively, he asserts his sentence for possessing a firearm while a felon should be stayed pursuant to section 654, in light of the firearm enhancement imposed on his transporting methamphetamine conviction. As we shall discuss, sufficient evidence supports the convictions for transportation and possession for sale of methamphetamine, but Ma’s sentence for being an armed felon must be stayed under section 654.

FACTS

We recite the facts in the light most favorable to the People, resolving all conflicts in favor of the jury’s verdict. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)

On April 13, 2004, at about 9:30 p.m., Officer Thomas Finley was “patrolling the streets“ in a marked car when he noticed a silver SUV roll through a stop sign. Finley followed the SUV for a distance, then activated his lights and siren. The SUV pulled into the left turn lane. There, it stopped for “a long period of time” (at least 10 seconds), although no oncoming traffic prevented it from turning. Finley saw the front passenger lean forward, so his head disappeared and came back up, “a couple of times.” Thinking this was suspicious, Finley called for backup. The SUV finally turned left into a Wal-Mart parking lot. As his backup arrived, Finley approached the SUV. There were two people in the SUV, and Ma was the front passenger. Ma “had his legs apart” and leaned forward toward the floorboard so his hands were not visible. Finley “directed him to sit up and put his hands where [Finley] could see [them].” Ma was “nonresponsive” with “minimal eye contact“ and looked nervous. “He sat up slightly about halfway to a fully seated position, and then he went back down again.” After Finley commanded him for a second time to sit up, Ma “came back up and complied.” Finley asked Ma “if there was a gun in the car,” to which Ma replied, “Not that I know of.”

The SUV’s center console was open. Inside the console was an upright black bag containing a Gameboy and a plastic bag holding 55.3 grams of methamphetamine. The methamphetamine would be visible to a person looking down into the open console. Beneath the passenger seat was a semiautomatic handgun with one bullet in the chamber and six in the magazine, “ready to be fired.” Inside the Gameboy’s battery tray were 20 more bullets of the same type as in the gun.

Officer Ron Garwood, a narcotics expert, opined that the street value of the methamphetamine found in the SUV was $1,600. Based on the quantity of methamphetamine and the lack of user devices in the SUV, Garwood opined the drug was possessed for sale. He also testified that a mid-level drug dealer will often bring along a trusted person, rather than to operate alone. A person holding a gun “calls the shots” and “dictates how [the] drug transaction is going to go.”

DISCUSSION

Substantial Evidence Supports Ma’s Convictions for Transportation and Possession for Sale of Methamphetamine

Ma contends his convictions for transportation and possession for sale of methamphetamine should be reversed for lack of substantial evidence. He argues his convictions were “based on the presence of methamphetamine contained in a black pouch found in the center console of a vehicle in which [he] was a passenger.” He points out he was not the owner of the SUV and asserts there was no evidence he “knew of the presence of the methamphetamine.”

“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) This standard of review also applies when the evidence presented at trial is circumstantial. (People v. Towler (1982) 31 Cal.3d 105, 118.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Unlawful possession of methamphetamine for sale requires proof the defendant possessed the drug with knowledge of both its presence and illegal character and with the intention of selling it. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) Possession may be actual or constructive. (People v. Williams (1971) 5 Cal.3d 211, 215.) “[P]ossession 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.” (Ibid.) “The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation]. However, when the contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant’s presence, even where the evidence shows knowledge of the presence of the drug and of its narcotic character.” (People v. Jenkins (1979) 91 Cal.App.3d 579, 584, italics added.) Likewise, “proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession.” (People v. Redrick (1961) 55 Cal.2d 282, 285.)

“Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character.” (People v. Meza, supra, 38 Cal.App.4th at p. 1746.)

Both “crimes can be established by circumstantial evidence and any reasonable inferences drawn from that evidence.” (People v. Meza, supra, 38 Cal.App.4th at p. 1746.)

Here, substantial evidence supports the jury’s verdict. Ma leaned down toward a loaded handgun under his seat several times after the SUV was intercepted by the police, even after he was instructed to sit up.[3] An expert witness opined that a person with a gun controls a drug transaction. A large quantity of methamphetamine was in the open console beside Ma’s seat. Next to the drug was a Gameboy containing ammunition for the handgun. These circumstances belie Ma’s insistence the evidence was insufficient to show more than his mere presence in the SUV. He was present with a handgun, exercising dominion over the handgun and at least joint dominion over the methamphetamine. From these circumstances, the jury could reasonably infer: (1) Ma transported a usable quantity of methamphetamine with knowledge of its presence and illegal character; and (2) Ma possessed the methamphetamine with an intention to sell it and with knowledge of its presence and illegal character.

Ma’s Sentence for Possession of a Firearm by a Felon Must be Stayed

Ma contends his consecutive sentence for possession of a firearm by a felon should be stayed pursuant to section 654, because it punishes the same conduct as the four-year prison term imposed for the firearm enhancement to his transporting methamphetamine conviction.[4]

Subdivision (a) of section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

Whether section 654 applies to enhancements based on conduct (such as carrying a firearm) is an open question. (People v. Coronado (1995) 12 Cal.4th 145, 157 (Coronado).) In People v. Arndt (1999) 76 Cal.App.4th 387 (Arndt), we concluded section 654 applied to enhancements for causing or inflicting bodily injury to victims because those enhancements were based on the defendant’s conduct. (Id. at pp. 395-396.) In reaching this conclusion, we applied the approach set forth in Coronado, where our Supreme Court distinguished between “two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense.” (Coronado, supra, 12 Cal.4th at p. 156.) An example of the first category is a prior prison term enhancement based on a defendant’s status as a repeat offender. (Ibid.) Examples of the second category are those authorized under sections 12022.5 (personal use of firearm) and 12022.7 (inflicting great bodily injury), which “typically focus” on the defendant’s conduct during the current offense. (Coronado, at p. 157.) Because section 654 applies only to an “act or omission,” Coronado held section 654 inapplicable to a repeat offender enhancement based on the defendant’s status, as opposed to any underlying criminal conduct. (Coronado, at pp. 157-158.) Although Coronado is silent on whether section 654 applies to conduct enhancements, its rationale suggests the statute governs enhancements predicated on a defendant’s act or omission. Thus, as in Arndt, we apply Coronado’s approach and conclude section 654 applies to an enhancement for being armed in the commission of a crime.[5]

Section 654 bars double punishment for a single act or indivisible course of conduct in which the defendant had only one objective. (People v. Coleman (1989) 48 Cal.3d. 112, 162.) Here, the trial court impliedly found Ma engaged in more than one criminal act or entertained more than one criminal objective. Applying the substantial evidence standard of review (ibid.), we conclude the court’s factual finding is unsupported by substantial evidence. Ma simultaneously possessed the gun and the methamphetamine during the time he was observed in the SUV. There is no evidence of “a possession distinctly antecedent and separate from the primary offense” (People v. Venegas (1970) 10 Cal.App.3d 814, 821), i.e. no evidence that he possessed the gun before he entered the SUV or transported the methamphetamine. Therefore, the evidence was insufficient to support the court’s implied finding of more than one criminal act or objective.

Because Ma was sentenced twice for the single act of possessing a handgun while transporting methamphetamine in the SUV, his sentence for possession of a firearm by a felon (the offense providing for a shorter potential term of imprisonment) must be stayed pursuant to section 654.

DISPOSITION

The judgment is modified to stay the sentence on Ma’s conviction for possession of a firearm by a convicted felon (§12021, subd. (a)(1)). The trial court is directed to amend the abstract of judgment accordingly and forward the amended abstract to the Department of Corrections and Rehabilitation, Adult Operations. We affirm the judgment in all other respects.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

O’LEARY, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] The court stayed sentence on the possession of methamphetamine for sale conviction and its enhancements pursuant to section 654.

[3] Ma concedes, “for the purpose of appeal, that the evidence was sufficient to sustain the verdict that he was in possession of the gun.”

[4] Ma’s opening brief erroneously states the court imposed the firearm enhancement on his possession for sale of methamphetamine conviction. In fact, the enhancement was imposed on his transportation of methamphetamine conviction.

[5] The Supreme Court has granted review of People v. Manila (2006), previously published at 139 Cal.App.4th 589, and People v. Palacios (2005), previously published at 126 Cal.App.4th 428, both of which held section 654 applicable to firearm enhancements.