P. v. Hooper
Filed 3/7/07 P. v. Hooper 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Amador)
‑‑‑‑
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DOUGLAS HOOPER, Defendant and Appellant. | C050830 (Super. Ct. No. 04CR7175) |
Defendant Robert Douglas Hooper received an aggregate state prison term of 10 years four months, after being convicted by a jury of residential burglary (Pen. Code, 459‑‑count III) and pleading guilty to two counts of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)‑‑counts I and XI), three counts of possession of a smoking device (id., 11364‑‑counts II, IV and XIII), two counts of possession of marijuana (id., 11357, subd. (b)‑‑counts V and XIV), one count of transportation of methamphetamine (id., 11379, subd. (a)‑‑count VI), and one count each of violating the Financial Responsibility Law (Veh. Code, 16028, subd. (a)‑‑count X), driving with a suspended drivers license with two prior convictions for the same offense (id., 14601.1, subd. (a)‑‑count IX) and unauthorized possession of a prescription drug (Bus. & Prof. Code, 4060‑‑count XII), supplemented by his admissions to two on-bail enhancement allegations (Pen. Code, 12022.1‑‑as to counts I and III).
Defendant contends that the court should have stayed the punishment for the three smoking device offenses (counts II, IV and VIII) pursuant to Penal Code section 654 (section 654) because, on each occasion, the devices were used only to consume the controlled substances that were also found in his possession. We disagree and shall affirm the judgment.
FACTUAL BACKGROUND
Since defendants only assignment of error involves offenses to which he pleaded guilty, we summarize the facts that pertain to those counts as they appear in the probation report.
On November 18, 2004, Amador County Sheriffs Deputies Rayzor and Stevens made contact with defendant as a person of interest in a burglary they were investigating. Defendant had been released from custody in a pending court case, with a search and seizure condition. During a search of defendants person, Deputy Rayzor removed a glass pipe, which he believed was used to smoke methamphetamine, from defendants front pants pocket. Defendant was placed under arrest for possession of the smoking device. A search incident to defendants arrest yielded a sock containing one bag of methamphetamine and another with white residue which was believed to be methamphetamine.
On November 12, 2004, Officer Michael Collins of the Jackson Police Department made contact with defendant while investigating a report of a stolen bicycle in the neighborhood. Collins knew of defendants search condition and ordered him to empty his pockets. Defendant complied and produced a clear plastic baggie containing a leafy green substance Collins suspected to be marijuana. Later that evening, defendant was taken into custody on suspicion of having stolen the bicycle. A search incident to his arrest produced two glass pipes believed to be used to smoke controlled substances and a clear plastic baggie containing a small amount of a leafy green substance that was suspected to be marijuana.
Counts XIII and XIV (possession of a smoking device and possession of marijuana)
On August 8, 2004, three months prior to the above incidents, Deputy Jarrett Benov of the Amador County Sheriffs Department spotted defendant leaving an apartment complex by jumping down an embankment. Deputy Benov detained defendant and noticed a bulge in his right pocket. During a pat-down search for weapons, defendant dropped a bag from his pocket and Benov heard the sound of glass breaking. Defendant acknowledged that inside the bag was a glass pipe used to ingest methamphetamine.
Deputy Benov then searched a fanny pack defendant was carrying and recovered a Ziplock bag containing 24.5 grams of marijuana and a smoking pipe with burnt residue.
DISCUSSION
Defendant contends that the three misdemeanor terms for possession of a smoking device (counts II, IV[1]and XIII) should have been stayed rather than ordered to run concurrently, because the facts show that the devices were used only to smoke the controlled substances concurrently found in his possession. Accordingly, defendant contends, possession of each of the pipes was an integral and indivisible part of [his] singular intent to consume the controlled substance.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) The defendant, however, may be punished for each offense if he acted with multiple criminal objectives that were independent of and not merely incidental to each other, even though the violations were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Beamon (1973) 8 Cal.3d 625, 637-639.) The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The defendants intent and objective are factual questions for the trial court, and its ruling will be upheld if supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Here, the court imposed concurrent sentences for each of the smoking device offenses, but did not order them stayed. By imposing the terms without a stay, the trial court implicitly found that in each case, defendant harbored separate intents in possessing the contraband substance and also possessing an unlawful smoking device. We review the [trial] courts determination of [the defendants] separate intents for sufficient evidence in a light most favorable to the judgment, and presume in support of the courts conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
Applying this standard, we find substantial evidence to support the trial courts determination that the smoking device and contraband possession crimes were primarily independent of each other. Possession of marijuana or methamphetamine along with devices for ingesting them are not part of a single, indivisible act. (Section 654.) One can possess either a smoking device or contraband, but need not possess both simultaneously.
Defendants assertion that he possessed the smoking devices only for the purpose of ingesting the contraband inside the baggies that he carried, is sheer speculation. For all that appears, the smoking devices could have been possessed for years, while the baggies of illegal substances may have been recent acquisitions.
If this were a case where defendant was apprehended while smoking contraband and, based on that act, suffered convictions for possessing both the contraband and the smoking device used to ingest it, his argument might have merit. Here, however, the smoking devices were found on different parts of defendants person, or elsewhere in his belongings. Those facts support a rational inference that defendant harbored multiple objectives in possessing both the drugs and the smoking devices.
We conclude that the trial court properly imposed concurrent, unstayed terms for each of defendants misdemeanor smoking device offenses.[2]
DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
DAVIS , Acting P. J.
ROBIE , J.
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[1] Although defendants opening brief asserts that the court should have stayed counts II, V and XIII, the Attorney General points out and we agree, that defendant must have meant counts II, IV and XIII, since it was count IV, not V, that charged him with a smoking device violation.
[2] In his reply brief, defendant relies on People v. Manila (2006) 139 Cal.App.4th 589. However, after defendant filed his reply, the California Supreme Court granted review in the case (S144885, review granted Sept. 20, 2006). Thus, the case is no longer citable as valid authority. (Cal. Rules of Court, rules 8.1105(d), 8.1115(a).)
