Filed 8/28/18 P. v. Hernandez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Sergio Hernandez appeals a judgment sentencing him to four years eight months in state prison upon a plea of no contest to four felonies. He asserts two errors in connection with his sentencing: that the court failed to stay the sentence on one count under Penal Code[1] section 654, and that the court wrongly considered irrelevant police reports at the sentencing hearing. There was no error and we shall therefore affirm the judgment.

Background

By a six-count felony complaint defendant was charged in count 1 with transportation for sale of a substance containing methamphetamine (Health & Saf. Code, § 11379, subd. (a)); in count 2 with possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)); in count 3 with transportation for sale of more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)); in count 4 with misdemeanor possession of a large capacity magazine (§ 32310); in count 5 with carrying a loaded firearm, a misdemeanor (§ 25850, subd. (a)(1)); and in count 6 with possession, use, and control of a false compartment with intent to conceal and transport a controlled substance (Health & Saf. Code, § 11366.8, subd. (b)).[2]

All six offenses were alleged to have occurred on January 5, 2016. On that day defendant was pulled over by a California Highway Patrol officer for speeding. The smell of marijuana smoke lead to a search of his vehicle and the ultimate discovery of a weapon, ammunition, 25 pounds of marijuana bud packaged in individual one pound bags and, inside a hidden compartment behind the trunk lining, one pound of methamphetamine.

Under a negotiated disposition, defendant agreed to plead no contest to counts 1, 2, 3 and 6. In exchange, the prosecution dismissed counts 4 and 5. The agreement did not include an indicated sentence.

The court sentenced defendant to a total of four years eight months in state prison, calculated as follows: on count 2, the midterm sentence of three years; on count 3, a consecutive sentence of one year; on count 6, a consecutive sentence of eight months; and on count 1, a concurrent sentence of three years which was stayed under section 654.

Defendant timely noticed his appeal.

Discussion

1. Section 654

Defendant contends the court erred in failing to stay the one year sentence on count 3 under section 654. As indicated above, the court sentenced defendant on count 2 for possession of methamphetamine while armed with a loaded weapon and under section 654 stayed the sentence on count 1 for the transportation of methamphetamine. Defendant contends the court erred in failing to also stay under section 654 the sentence on count 3 for the transportation of marijuana.

Section 654, subdivision (a), in relevant part, reads: “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.” As our Supreme Court has observed, this section is “deceptively simple in its terms . . . [but] has nonetheless confounded courts through the years.” (People v. Jones (2012) 54 Cal.4th 350, 361 (conc. opn. of Werdegar, J.).) In Jones itself, the court overruled a precedent of its own.

Most recently, in People v. Corpening (2016) 2 Cal.5th 307, 311-312, the court explained the proper analysis as follows: “Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘intent and objective’ or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo.”

In refusing to apply section 654 to the sentence under count 3 here, the trial court relied on People v. Buchanan (2016) 248 Cal.App.4th 603. In that case the court held that section 654 applies to possession for sale and transportation for sale of the same substance but recognized that “ ‘California courts have uniformly held that section 654 does not preclude multiple punishment for simultaneous possession of various narcotic drugs.’ ” (Buchanan, p. 611.) In addition to the cases cited in Buchanan, see People v. Menius (1994) 25 Cal.App.4th 1290, 1296 [“the law is clear that the possession of different drugs or controlled substances not only may violate different statutes, but may also be separately punished”]. Thus, the trial court here properly applied section 654 to stay the sentence under count 1 for transportation of the same controlled substance for the possession of which sentence was imposed under count 2. The trial court was equally correct that transportation of a different controlled substance does not constitute the same act under section 654. While People v. Corpening, supra, 2 Cal.5th 307 makes clear that section 654 applies if two convictions are based on commission of the same act, the case does not overturn the longstanding understanding that possession of different drugs normally involves the commission of different acts. And certainly the transportation of one drug does not constitute the same act as possession of a different drug.

As the trial court ruled, In re Adams (1975) 14 Cal.3d 629, on which defendant heavily relies, is inapplicable. In that case, the court did apply section 654 to the simultaneous transportation of several different controlled substances, but what was involved there was one “indivisible transaction, with the single intent and objective of delivering them to another person, [in which] only one act of illegal transportation occurs.” (In re Adams, p. 632.) At most, this precedent might require application of section 654 to count 3, transportation for sale of marijuana, if defendant had been sentenced on count 1, transportation for sale of methamphetamine, but sentence on count 1 was stayed. Defendant was sentenced on count 2 for the possession of methamphetamine while armed, which is not the same act as transportation for sale of marijuana.

Since the convictions under counts 2 and 3 were based on different acts, section 654 would apply only if the separate acts had the same “intent and objective.” Plainly they did not. (People v. Blake (1998) 68 Cal.App.4th 509.) As the Attorney General argues, “The evidence highlighted in Blake is strikingly similar to the evidence in this case and supports the same reasonable inference that appellant had separate objectives in possessing the methamphetamine and transporting the marijuana. Here, as in Blake, the methamphetamine and the marijuana were stored in different areas of the car—the marijuana in the trunk of the car and the methamphetamine in a secret compartment in the trunk. Like the marijuana in Blake, the marijuana here was packaged in one-pound increments, ‘consistent with multiple, individual sales.’ ” (Blake, p. 512.) The large amount of both drugs here was also “consistent with delivery to more than one individual” and, of course, the difference between the drugs suggested they were “ ‘directed at different buyers.’ ” (Ibid.) Although the officers who searched appellant’s car did not find a “pay-owe” sheet or a scale, they did find a loaded nine-millimeter handgun and extra ammunition in the console, which the trial court found reflected a “very high level of drug dealing”—similar to the Blake court’s conclusion that the materials found in Blake’s car evinced “an elaborate drug trafficking operation.” (Ibid.) “Given the similarities between Blake and the instant case, the trial court correctly imposed separate sentences for appellant’s offenses of possessing methamphetamine and transporting marijuana.”

Defendant argues that “the idea that marijuana and methamphetamine, if packaged separately or found in different parts of the vehicle, supports an inference that the drugs were intended for separate buyers, lacks any and all logical force.” We disagree. While these facts may not compel the inference drawn by the trial court, they are sufficient to support the trial court’s finding. (People v. Monarrez (1998) 66 Cal.App.4th 710, 715 [“the objectives of selling cocaine and heroin are separate”].)

2. Admission of police reports

Defendant also contends that the trial court erred in receiving and considering over his objections police reports attached to the prosecution’s sentencing memorandum describing a search of his parent’s home the day after defendant had been released on bail. Defendant contends the reports were irrelevant but they clearly were not.

Defendant’s sentencing memorandum urged the court to grant defendant probation, asserting that “since [defendant’s] arrest he and his family have reconciled and he has their support.” The prosecutor, urging imposition of the maximum prison sentence, argued that, to the contrary, defendant’s parents were “likely involved in their own criminal activity related to marijuana” and their home “would not be a safe place for defendant to reside if he wants to leave his criminal lifestyle behind.” The police reports attached to the prosecutor’s memorandum documented that the search of the parents’ home disclosed a locked storage shed containing 181 marijuana plants, equipment used for marijuana cultivation, and substantial amounts of American and Mexican currency. The reports not only indicated that the parents’ home where he indicated he would live if granted probation was not suitable for that purpose, but also cast doubt on the credibility of the claim of defendant, who was present at the time of the search, that his offenses were unique incidents and that he was not involved in substantial drug trafficking. Moreover, the evidence cast specific doubt on the veracity of defendant’s father, who had vouched for his son’s limited involvement in drug dealing; the father had previously testified that funds used to obtain defendant’s bail were the proceeds of an insurance settlement, which the police reports tended to show was unlikely. In all events, the court did not abuse its discretion in receiving and considering the police reports.

Disposition

The judgment is affirmed.[3]

Pollak, J.

We concur:

Siggins, P.J.

Jenkins, J.