Filed 10/5/18 P. v. Cerda CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Rolando Cerda of transportation of methamphetamine (Health & Saf. Code, § 11379/count 1),[1] possession for sale of methamphetamine (§ 11378/count 2), misdemeanor possession of drug paraphernalia (§ 11364/count 3), misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)/count 4), and misdemeanor possession of methamphetamine (§ 11377, subd. (a)/count 5). In a separate proceeding, the court found true a prior conviction enhancement (§ 11370.2) in counts 1 and 2.

On February 23, 2017, the trial court sentenced Cerda to an aggregate local term of seven years: the upper term of four years on count 1 and a three-year prior conviction enhancement in that count, a stayed aggregate term of six years on count 2, a concurrent 90-day term on count 3, a concurrent 120-day term on count 4, and a stayed 120-day term on count 5.

On appeal, Cerda contends: (1) the court erred in excluding three statements he made to a sheriff’s deputy; and (2) he is entitled to the benefit of a recent amendment to section 11370.2. We find merit to this last contention. Additionally, we conclude that the jury erred when it convicted Cerda of simple possession of methamphetamine.[2] Thus, we will modify the judgment accordingly, and affirm it as modified.

FACTS

On October 4, 2016, at approximately 8:30 a.m., Kern County Sheriff’s Deputy Juan Bravo was on patrol in Bakersfield when he saw Cerda walking a bicycle. After Bravo contacted him, Cerda fled on the bicycle, abandoned it and a bag at an apartment complex, and ran away. When another deputy spotted Cerda jogging a few blocks away, Cerda turned and fled again. However, when the deputy got out of the car and told Cerda to stop or he would be bitten by a police dog, Cerda stopped and was taken into custody. Deputies searched Cerda and found a bag that contained methamphetamine and weighed a total of 37 grams, a pipe for smoking methamphetamine, and $152 in currency, four $20 bills, five $10 bills, four $5 bills and two $1 bills.

At trial, Bravo testified he was familiar with Cerda from prior contacts and that prior to contacting him, he conducted a records check that disclosed Cerda had outstanding warrants. Bravo then stopped his patrol car next to Cerda and asked if he had any warrants. Cerda responded that he did not think so; Bravo replied that he did. Cerda said, “Oh shit” and fled on his bicycle.

Bravo further testified that after Cerda was arrested by another deputy, he transported Cerda to the central receiving facility (CRF),[3] where he interviewed him after advising him of his Miranda[4] rights. During the interview, Cerda stated he ran from Bravo because he thought he had a running chance and that the bag found in his possession contained methamphetamine that weighed approximately 30 grams.

Bravo testified as an expert that Cerda possessed the methamphetamine for sale. He based his opinion on the amount of methamphetamine seized, the amount and denominations of the currency found on Cerda, and Cerda’s flight. Bravo also testified that the amount alone can be sufficient for him to conclude that a narcotic is possessed for sale and that the $5 and $10 denominations were consistent with street-level sales of methamphetamine. The amount of methamphetamine Cerda possessed led him to conclude that Cerda possessed the methamphetamine for sale because it was not an amount that a user commonly purchases for personal use, which he testified would range from 0.1 grams to three grams.

During cross-examination, defense counsel asked Bravo if he recalled that after Cerda was arrested, Cerda mentioned that his outstanding warrants were for “failure to do work release[.]”[5] However, the court sustained the prosecutor’s hearsay objection despite defense counsel’s assertion that it was admissible pursuant to Evidence Code section 356. Subsequently, defense counsel asked Bravo if on the way to the CRF Cerda mentioned why he possessed the methamphetamine and whether the money was from cutting lawns. The court again sustained the prosecutor’s hearsay objections to each question.

After Bravo finished testifying, the following colloquy occurred out of the presence of the jury:

“THE COURT: [Defense counsel], anything for the record?

“[DEFENSE COUNSEL]: Yes, Your Honor. I asked a series of questions regarding Mr. Cerda’s statements that were objected to and the object[ion] was sustained under hearsay grounds. But I believe under Evidence Code [section] 356 they should be allowed in given the phrasing and context of the prosecutor’s questions with regards to Mr. Cerda’s Mirandized statements.

“THE COURT: Your comment?

“[PROSECUTOR]: Judge, I was very specific as to the types of questions that I asked the deputy, specifically the timing of the questions. As the Court is aware from the previous [Evidence Code section] 402 hearing, the statements that the defendant made, the spontaneous statements, don’t add or complete the interview that he had with Deputy Bravo at the [CRF]. They aren’t admissible for that purpose and they aren’t admissible when offered by the defense as admissions. There is no hearsay or applicable exception and it is my position that they were hearsay.

“THE COURT: [Defense counsel], back to you.

“[DEFENSE COUNSEL]: Your Honor, when Mr. Cerda makes a statement after being Mirandized, that statement is in the context of earlier statements he made in an overall conversation of information he’s given to Deputy Bravo. Knowing that he made those earlier statements to him, he made other statements that weigh directly from and upon those earlier statements, and I’ll submit on that, Your Honor.

“THE COURT: Thank you. Any follow up on that?

“[PROSECUTOR]: No, judge.

“THE COURT: Thank you. Court will call [sic] that reconsideration of these objections that were put out and made and sustained at the time. The Court based on argument is comfortable with its decision and its understanding of [Evidence Code section] 356 at this time given the context of the trial and the evidence that was present and so on, and we’ll leave it there. Thank you.” (Italics added.)

DISCUSSION

The Admissibility of Cerda’s Three Spontaneous Statements

Cerda contends the court erred in not admitting, pursuant to Evidence Code section 356, the following three statements he made to Deputy Bravo: (1) that he believed his outstanding warrants were for failure to sign up for work release (statement one); (2) that he possessed the methamphetamine for personal use (statement two); and (3) that the money found on him was from cutting lawns and doing yard work (statement 3).[6] Cerda also contends he had only two conversations with Deputy Bravo, a post-Mirandized conversation and a pre-Mirandized conversation that consisted of the statements Cerda initially made when contacted by Bravo and the spontaneous statements he made while being transported to the CRF. He further contends all three statements were admissible because (1) they were part of his pre-Mirandized conversation and his statement from that conversation, that he did not think he had warrants, was admitted into evidence; !(AOB: 22-24.)! and (2) they were “on the ‘same subject’ ” as his post-Mirandized conversation and the statements admitted from that conversation. Cerda also contends that statements two and three were admissible pursuant to Evidence Code section 356 because they were part of his post-Mirandized conversation and the prosecutor introduced statements from that conversation into evidence. Thus, according to Cerda, the court abused its discretion when it excluded the three statements. We disagree.

Evidence Code section 356 provides:

“Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”

“The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission … in evidence.’ ” (People v. Arias (1996) 13 Cal.4th 92, 156.)

“A court[, however,] does not abuse its discretion when under Evidence Code section 356 it refuses to admit statements from a conversation or interrogation to explain statements made in a previous distinct and separate conversation. (See People v. Williams (2006) 40 Cal.4th 287, 319 [within court’s discretion not to admit statements made by defendant in first interview with detectives to explain statements made in another interview 24 hours later].” (People v. Johnson (2010) 183 Cal.App.4th 253, 287 (Johnson), italics added.)

The record establishes that Cerda had three conversations with Bravo, not two as Cerda contends. The first conversation occurred when Bravo first contacted Cerda and asked if he had any warrants. Afterwards, Cerda fled on his bicycle, abandoned it in an apartment complex, and was eventually arrested by another deputy. While being transported to the CRF, Cerda made several spontaneous statements. In view of the intervening events and substantial lapse of time that occurred between Cerda’s initial statements to Bravo and Cerda’s spontaneous statements during the ride to the CRF, the spontaneous statements were clearly a distinct, separate conversation from Cerda’s initial conversation with Deputy Bravo. Further, after Cerda was transported to the CRF, he had to be removed from the patrol car, escorted into the facility, and taken to a location where he could be interviewed. Presumably, because he had already been arrested, he also would have been booked before Bravo interviewed him. Therefore, the interview at the CRF was a third, distinct conversation because it was also separated from Cerda’s spontaneous statements by a series of events that occurred over a substantial period of time and by the advisement to Cerda of his Miranda rights. (Cf. People v. Barrick (1982) 33 Cal.3d 115, 131 [court did not err in excluding defendant’s postarrest statements to explain prearrest statements where statements occurred at arrest site and were separated by series of events and admonishment of constitutional rights].)

Defense counsel attempted to establish that the three excluded statements were part of the spontaneous statements Cerda made while being transported to the CRF, but he was not able to because the court sustained the prosecutor’s hearsay objection to each of these statements. Further, since Cerda’s initial conversation with Bravo and his spontaneous statements were not part of the same conversation, the excluded statements were not admissible pursuant to Evidence Code section 356 to clarify the statements Cerda made in his initial conversation with Bravo. In any event, in the trial court defense counsel argued only that the spontaneous statements were admissible pursuant to Evidence Code section 356 to clarify Cerda’s post-Mirandized statements. Thus, Cerda forfeited his claim that the excluded statements were admissible to clarify his initial statements to Bravo by his failure to raise this issue in the trial court. (People v. Tully (2012) 54 Cal.4th 952, 979-980 [arguments not raised in the trial court are forfeited].)

Moreover, the court was not required to admit any of the spontaneous statements Cerda made while being transported to the CRF to clarify the statements he made during his post-Mirandized interview because the interview was a third, distinct conversation from the spontaneous statements. (People v. Barrick, supra, 33 Cal.3d at pp. 131-132.)

Additionally, no evidence was presented during the trial that Cerda made any of the excluded statements during his post-Mirandized interview, and the parties did not incorporate Bravo’s testimony during the preliminary hearing or the Evidence Code section 402 hearing into the trial record. Thus, the record does not support Cerda’s contention that he made any of the excluded statements during his post-Mirandized interview and that they were admissible pursuant to Evidence Code section 356 to explain the other statements he made during that interview. Accordingly, we conclude that these three spontaneous statements at issue were not admissible pursuant to Evidence Code section 356 and that the court did not abuse its discretion when it sustained the prosecutor’s hearsay objection and excluded them.

Cerda’s Prior Conviction Enhancement

Cerda’s prior conviction enhancement pursuant to section 11370.2 was based on his 2004 conviction for violating section 11378. Cerda contends he is entitled to the recent amendment to section 11370.2, which requires that his prior conviction enhancement pursuant to that section be stricken. Respondent concedes.

Senate Bill No. 180 (2017–2018 Reg. Sess.), which became effective on January 1, 2018, amends section 11370.2 to limit the scope of the enhancement to apply only to prior convictions for violations of section 11380 (Stats. 2017, ch. 677, § 1). As amended, the enhancement no longer applies to Cerda’s prior conviction for violating section 11378.

Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute’s operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendments to section 11370.2 were intended to operate prospectively only, the prior conviction enhancement pursuant to section 11370.2 the court found true must be stricken.

Cerda’s Conviction for Simple Possession of Methamphetamine

Cerda was convicted of possession for sale of methamphetamine (§ 11378/ count 2) and simple possession of methamphetamine based on his possession of approximately 30 grams of methamphetamine. Simple possession of a drug is a lesser included offense of possessing the same drug for sale. (People v. Adams (1990) 220 Cal.App.3d 680, 690; People v. Saldana (1984) 157 Cal.App.3d 443, 456-457.) “When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.” (People v. Sanders (2012) 55 Cal.4th 731, 736.) In accord with the above authorities, we conclude that Cerda’s conviction for simple possession of methamphetamine must be reversed.

DISPOSITION

Cerda’s conviction for simple possession of methamphetamine in count 5 and the prior conviction enhancement the court imposed in counts 1 and 2 pursuant Health and Safety Code section 11370.2 are vacated; the trial court is directed to correct its paperwork accordingly. As modified, the judgment is affirmed.