Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 01F04045
DAVIS, J.
A jury convicted defendant Angela Alvarado of conspiracy to manufacture methamphetamine (Pen. Code, § 182, subd. (a)(1)--count one) and manufacture of methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)--count three). On each count, the jury found true an allegation that the substance containing methamphetamine exceeded 25 gallons of liquid. (Health & Saf. Code, § 11379.8, subd. (a)(3).) In November 2003, defendant was sentenced to state prison for two concurrent terms of 13 years, consisting of the low terms of three years for each offense plus 10 years for each volume enhancement.
In a prior appeal defendant contended, and the Attorney General conceded, the trial court improperly instructed the jury with respect to the volume enhancement on the conspiracy count. This court accepted the concession, reversed the true finding on that enhancement, and remanded to the trial court for retrial of the enhancement and resentencing or, if the People declined to retry the enhancement, simply for resentencing.
On our own motion, we take judicial notice of our records in case No. C045579. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On remand, the People elected to submit the case for resentencing. Following a hearing in March 2006, the trial court reinstated the low base term and the enhancement for manufacturing methamphetamine. The sentence for conspiracy was stayed pursuant to Penal Code section 654. The court reiterated the credits that defendant had earned prior to the original sentencing and stated that “[t]he rest of her time,” i.e., the period between the two sentencing hearings, “has been computed by the Department of Corrections.” The court declined to address the agency’s computations.
On appeal, defendant contends the trial court erred by (1) failing to obtain an updated probation report; (2) refusing to calculate her credits for the period between the two sentencing hearings; and (3) failing to strike the drug volume enhancement on the ground of disproportionate punishment. We shall modify the judgment.
Our statement of facts is taken from our prior opinion.
On May 15, 2001, Alvarado rented a 14-foot U-Haul truck in El Monte, California. She most likely paid cash for the one-way rental. The U-Haul was dropped off in Sacramento, although the original destination code was Modesto. The U-Haul was seen by a surveillance team at Grant’s Hardware Store in El Monte. The U-Haul, driven by Alvarado, pulled into the parking lot followed by a white Toyota Corolla. Three men who had arrived in the Corolla entered the hardware store and a few minutes later returned to the U-Haul. One man spoke with the driver of the U-Haul, who then backed the U-Haul truck to the store’s bay door area. The men loaded 12 five-gallon cans of denatured alcohol into the U-Haul truck.
The U-Haul and the Corolla left the hardware store and went to a residence on Cogswell Road in El Monte. A male Hispanic came out of the residence and placed a yellow two-foot square box into the back of the U-Haul. Then another male Hispanic came from the same residence and placed a white plastic bag that appeared to contain something heavy into the back of the U-Haul. The female Hispanic driver was behind the truck when both of these items were placed in the truck. After this, a male Hispanic exited the Cogswell house and rode around the neighborhood on a bicycle looking inside cars parked near the house.
Following the stop at the Cogswell house, the U-Haul truck followed a Ford Bronco on Interstate 5 northbound. Alvarado remained a passenger in the U-Haul truck for most of the trip from El Monte to Sacramento. Along the route, both vehicles stopped for gas, and videotape surveillance showed Francisco Hernandez, Miguel Martinez and Angela Alvarado. Hernandez and Martinez were seen getting into the Bronco and Alvarado was seen entering the U-Haul.
The two vehicles were later seen together at a Denny’s Restaurant in Turlock for a few minutes. The Bronco and the U-Haul then went in different directions for approximately 44 minutes. The two vehicles were again seen together off an exit north of Manteca. After this, the U-Haul proceeded north on Interstate 5 and the Ford Bronco proceeded south on Interstate 5.
Later that same evening, the U-Haul backed into the driveway and up to an open garage door at a residence in Sacramento. Alvarado was a passenger and the U-Haul’s driver was a male. A man carried white cans from the U-Haul and placed them into the garage. It sounded like the cans were dragged across the U-Haul and placed on the floor of the garage. It took only five or six seconds to empty the U-Haul. Alvarado was not seen leaving the U-Haul. The U-Haul left the residence after about 10 or 12 minutes.
The U-Haul was dropped off at a U-Haul facility in Sacramento. The back end of the U-Haul was empty. Alvarado got into a white BMW that was in the U-Haul parking lot. The BMW drove to the Sacramento residence. It then went to a gas station near Interstate 5 in Sacramento.
A narcotics task force had the Sacramento residence under surveillance on May 16, 2001. Around 3:30 in the afternoon, Ulises Hernandez arrived at the house in a black Chevy pickup truck. A short time later, a U-Haul truck and a Ford Bronco arrived at the house. Alvarado drove the Ford Bronco with an unidentified male passenger. The U-Haul was driven by Francisco Hernandez and Miguel Martinez was a passenger. The U-Haul was backed into the driveway. Alvarado walked to the back of the U-Haul. The roll-up door of the U-Haul was heard going up, along with the sounds of items being either put in or taken out of the U-Haul. Ulises Hernandez was seen at the back of the U-Haul truck. The garage door was open.
Alvarado entered the house through the garage and exited approximately eight minutes later with Ulises Hernandez. Alvarado and an unknown male drove off in the Ford Bronco and she was not seen again at the residence. Alvarado was arrested more than one year later, in October 2002, in El Monte.
On May 17, 2001, Ulises Hernandez, Francisco Hernandez and Miguel Martinez were seen carrying a 20-pound bag of cat litter and several rolls of paper towels into the Sacramento residence. Later, Martinez and Francisco Hernandez took several white five-gallon buckets into the residence. Ulises Hernandez took his wife and child to a hotel nearby. The detectives then sought and were granted a search warrant for the Sacramento residence. Ulises Hernandez was arrested while he was driving, approximately 15 minutes before the search warrant was executed.
When the search warrant was executed, Francisco Hernandez fled from the home and was arrested in the back yard. Martinez was apprehended in the home. Officers discovered a methamphetamine laboratory spanning half of the garage. The following items were found in the garage: a drug press, a screwdriver in the bottom of a barrel, a hydrogen chloride gas cylinder, methamphetamine in solution in five-gallon buckets, empty ice bags, pseudoephedrine extraction in a mop bucket, filter sheets, solution in an advanced stage of the methamphetamine manufacturing process, a large stirring stick, 53 one-gallon canisters of camp fuel, rubber gloves, duct tape, paper towels, multiple sizes of bags, cat litter, a funnel, a 50-pound bag of caustic soda, 12 five-gallon cans of denatured alcohol (three were empty), a turkey fryer, two 44-gallon garbage cans, a 22-liter round bottom flask, a rheostat, a garbage can containing 102 empty 1,000-count pseudoephedrine bottles, and a propane tank.
In the master bedroom of the Sacramento home, officers found mortgage documents and change of ownership documents bearing the name Mario Aguilar. On June 4, officers searched Mario Aguilar’s residence. They found digital scales and a receipt for a storage unit. A search of the storage unit turned up red phosphorous, payment receipts for an apartment with Ulises Hernandez’s name, a money order and phone bills in Ulises Hernandez’s name, and documents in Francisco Hernandez’s name.
Discussion
I
Defendant contends the trial court erred by failing to obtain an updated probation report for the second sentencing hearing held two years four months after the first hearing. We find no prejudicial error.
Preliminarily, we note that a probation report is not necessarily required if the defendant is statutorily ineligible for probation. (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins).) Defendant was statutorily ineligible in the absence of unusual circumstances. (Pen. Code, § 1203.073, subd. (b)(3).) But the trial court found that her “lack of prior record would qualify this as an unusual case.” Thus, she was statutorily eligible for probation.
In Dobbins, this courtnoted that an updated report is not necessarily needed in some cases where a recent report has been prepared that may be incorporated by reference. (Dobbins, supra, 127 Cal.App.4th at p. 180.) We cited California Rules of Court, rule 4.411(c), which presently states: “The court must order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.” We explained: “The Advisory Committee Comment to the rule suggests that a period of more than six months may constitute a significant period of time, even if the defendant remains incarcerated and under the watchful eyes of correctional authorities.” (Dobbins, supra, at p. 181.)
Hereafter, undesignated references to rules are to the California Rules of Court.
In this case, defendant remained incarcerated for two years four months, which is more than three times the period referred to in Dobbins and more than four times the period suggested by the Advisory Committee Comment. Even though she was never released from custody, as was the Dobbins defendant for a brief period, defendant was entitled to a supplemental or updated probation report prior to her resentencing. (Dobbins, supra, 127 Cal.App.4th at p. 181.)
We explained in Dobbins that there is no federal constitutional right to a supplemental probation report, that a failure to obtain a report implicates only California statutory law, and that review is governed by the Watson harmless error standard. (Dobbins, supra, 127 Cal.App.4th at p. 182; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Thus, we shall not reverse unless there is a reasonable probability of a result more favorable to defendant if not for the error. (Watson, supra, at p. 836.)
Defendant contends the error “cannot be deemed harmless,” and his counsel’s failure to request the report was ineffective assistance, because she “had spent a substantial amount of time in custody without incident [between the two sentencing hearings] and this conduct, if considered, could serve as the basis for a different sentence.” Defendant’s claim that she served time “without incident” is based on footnote 6 of her opening brief, which states: “According to information from Valley State Prison for Women[,] since [defendant’s] incarceration[,] she has worked in prison and has no disciplinary actions.” As the People properly note, this “information” from the prison is outside the appellate record and cannot be considered. (See rule 8.320.)
On this record, the failure to obtain an updated probation report was not prejudicial. At the original sentencing hearing, the trial court found unusual circumstances based on defendant’s minimal role in the crime, but it denied probation based on the circumstances, nature, and seriousness of the offense. The court imposed the low term because her role was less than that of her codefendants and because her prior record was insignificant; those mitigating factors outweighed any aggravating factors. Regarding the 10-year enhancement the court stated: “There is also an enhancement . . . . This was found to be true by the jury. The sentence will therefore be enhanced by ten years for a principal term of 13 years. The Court is aware of its discretion to strike the punishment for this enhancement and elects not to take that action because of the nature, seriousness, and circumstances of this case.”
At the subsequent sentencing hearing, the court stated: “I agree that her role was minor compared to the others. [¶] However, this was a major crime. The estimated street value of the finished product here would have been according to the probation report approximately two million dollars. This was almost 32 gallons of liquid methamphetamine.” After again selecting the low term of imprisonment, the court stated: “In addition there is [an] enhancement connected to count three for [section] 11379.8[,] subdivision (a)(3) of the Health and Safety Code. It is a ten-year enhancement. It will be imposed because of the amount of methamphetamine.”
Nothing in the present record raises a reasonable probability that a supplemental probation report would have dissuaded the trial court from its conclusion that the great quantity of methamphetamine (in excess of the 25 gallons specified in the statute) justified the 10-year enhancement. (Dobbins, supra, 127 Cal.App.4th at p. 182; Watson, supra, 46 Cal.2d at p. 836.) On this record, any deficient performance by defendant’s counsel was not prejudicial. (People v. Avena (1996) 13 Cal.4th 394, 418.)
II
Defendant contends, and the Attorney General concedes, the trial court erred by failing to calculate her actual time in custody since the original sentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 41 (Buckhalter).) We accept the Attorney General’s concession. Defendant was in custody between the two sentencing hearings for 855 days. We shall modify the judgment to award her this period of custody credit.
Our computation of credit is one day greater than that of the Attorney General because the period from November 14, 2005, through November 30, 2005, is 17 days, not 16.
Contrary to defendant’s contention, calculation of her in-prison conduct credit is the responsibility of the Department of Corrections and Rehabilitation, not the trial court. (People v. Chew (1985) 172 Cal.App.3d 45, 49-51, 52, disapproved on other grounds by Buckhalter, supra, 26 Cal.4th at pp. 38-40.) The court did not err by failing to calculate the credits defendant had earned pursuant to Penal Code section 2933.
III
Citing People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon), defendant contends the 10-year drug volume enhancement is “constitutionally disproportionate” to her individual culpability. The Attorney General responds that she has forfeited her Dillon claim by failing to assert it in the trial court. We have previously held that a constitutional objection to an aspect of a defendant’s sentence is forfeited if not asserted at sentencing. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061.)
Even if it is not forfeited, defendant’s Dillon claim has no merit. The court in Dillon noted that in In re Lynch (1972) 8 Cal.3d 410, the California Supreme Court held that “a statutory punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed.” (Dillon, supra, 34 Cal.3d at p. 478, fn. omitted.) “The cases since Lynch demonstrate that a punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant’s individual culpability. Thus, in [In re Foss (1974) 10 Cal.3d 910] we had ‘no doubt that heroin abuse presents a serious problem to our society or that harsh penalties may be necessary to restrict the supply, sale and distribution of this substance.’ [Citation.] Yet we stressed that the defendant had agreed to assist an acquaintance to obtain heroin only because the latter was an addict and was going through withdrawal; that the defendant was himself an addict and was suffering from withdrawal at the time of the events; and that the sole payment he took was enough of the narcotic for a dose of his own. [Citation.] We concluded that in such circumstances it shocked the conscience to automatically bar the defendant from parole for 10 years ‘without consideration for either the offender or his offense’ [citation].” (Dillon, supra, at p. 480.)
The 10-year volume enhancement in this case is comparable in its effect to the 10-year period of parole ineligibility in In re Foss, supra, 10 Cal.3d 910, disapproved on other grounds in People v. White (1976) 16 Cal.3d 791, 796, footnote 3. But no comparable factor reduces defendant’s individual culpability; she was neither suffering from withdrawals nor seeking to assist someone else who was so suffering. Instead, she argues merely that she “had no prior record, was employed and was raising three minor children.” None of these personal characteristics suggests “the punishment is grossly disproportionate to the defendant’s individual culpability[.]” (Dillon, supra, 34 Cal.3d at p. 479.) (In fact, a compelling argument could be made that committing such a serious offense while raising three children is itself an aggravating factor.)
In Dillon, the “excessiveness of defendant’s punishment” was “underscored by the petty chastisements handed out to the six other youths who participated with him in the same offenses.” (Dillon, supra, 34 Cal.3d at p. 488.) Here, however, the two most culpable codefendants were sentenced to the middle term, whereas defendant was sentenced to the low term. A third codefendant, whose culpability was somewhat lessened, received the same low term as defendant. This comparison with codefendants does not suggest that defendant’s sentence is grossly disproportionate. (Dillon, supra, 34 Cal.3d at p. 478.)
In a separate argument, defendant contends the trial court abused its discretion by failing to strike the volume enhancement. We disagree.
A trial court may strike the volume enhancement “if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.” (Health & Saf. Code, § 11379.8, subd. (d).)
At the original sentencing, the trial court expressly referenced its discretion as follows: “The Court is aware of its discretion to strike the punishment for this enhancement and elects not to take that action because of the nature, seriousness, and circumstances of this case.” At the second sentencing, the court did not refer to its discretion but it did state: “It is a ten-year enhancement. It will be imposed because of the amount of methamphetamine.” Thus, in both instances, the court exercised its discretion in the same manner for the same stated reason.
The court expounded on its reasoning when it sentenced a codefendant: “A ten-year enhancement is an extremely serious thing. . . . The Legislature has stated that when one engages in the manufacture of methamphetamine on a large scale, then the penalties must be severe because the rewards can be great. However, the effect on society is incalculable. [¶] The amount of methamphetamine here was huge. This lab had everything necessary to produce it . . . .”
Defendant’s only argument is that, having found that probation would have been warranted but for the seriousness of the crime, and having found that mitigation outweighed aggravation and justified the low term of imprisonment, the trial court abused its discretion by failing to further mitigate the punishment by striking the volume enhancement. The claim fails because the trial court could believe selection of the low base term was sufficient mitigation in light of the gravity of the offense. Such a determination is not arbitrary, capricious, or patently absurd, and does not fall outside the bounds of reason. (People v. Jordan (1986) 42 Cal.3d 308, 316; see People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Disposition
The judgment is modified to award defendant 855 days of prison custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P.J., MORRISON, J.