Opinion
C071070
01-11-2017
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP MICHAEL APPLEGATE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F138)
Although defendant Phillip Michael Applegate raises routine and meritless challenges to a search warrant and to his sentence for possessing and transporting methamphetamine for sale, evading a police officer, and possessing syringes, he was convicted by a jury before a favorable change in the law redefining transportation to include the specific intent to sell. He insists the change in the law requires reversal of the transportation count because there is insufficient evidence he had the specific intent to transport his approximately nine grams of methamphetamine when he was fleeing police and was hit by a car, the jury was not instructed on an essential element of the crime and the prosecutor's argument exacerbated the deficiency, and possession for sale is a lesser included offense of transportation for sale. We agree defendant is entitled to the benefit of the change in the law, but we disagree that the change in the law necessitates reversal for reasons we explain herein. The judgment, therefore, is affirmed.
FACTS
Defendant has been a methamphetamine addict for many, many years and he was well acquainted with members of the Shasta Interagency Narcotics Task Force (SINTF). He admitted to prior convictions in 1993 for the sale or transportation of methamphetamine, in 1995 for possession of a controlled substance, and in 1997 and 2001 for possession of a controlled substance for sale. In this case he was charged with possession for sale, transportation for sale, resisting a police officer, possession of a syringe or needle without a permit, and various enhancements. He presented no witnesses at trial, but his lawyer argued he was a user, not a seller.
Two members of SINTF, armed with a search warrant, parked in front of a motel and watched defendant and a woman leave a motel room, put items in a truck, return to the room, and walk back to the truck. One officer approached the woman and another contacted defendant at the truck. The two knew each other. Defendant said, "What's up Rowen?" Because defendant had a bloody bandage on his right first index finger, the officer was reluctant to put him in a control hold and attempted to handcuff him in the front. When told he would be detained as authorized by the search warrant, defendant bolted. He ran back toward the motel but reached a dead end, turned around, ran back by the officers, and into the street. He was struck by a car, flipped over the hood, and his personal items, including a brown satchel containing 9.10 grams of methamphetamine and empty plastic baggies, went flying into the street. After a few seconds, he got up and tried to keep running, but hampered by a broken leg, he sat down and declared he was done. He was handcuffed and transported to the hospital. He had $1,404 in his wallet.
Inside the truck another officer found a toiletries bag containing prescription pill bottles with defendant's name on them. The officer also discovered a digital scale disguised as a cell phone and two syringes inside the toiletries bag. Defendant's cell phone recorded a series of text messages comparable to old fashioned pay-owe sheets commonly kept by drug dealers.
A drug expert opined that defendant possessed the 9.10 grams of methamphetamine for sale. His opinion was based on the quantity of the drug, the digital scale, the clean baggies for packaging, and the cash found in defendant's wallet. Defendant's cell records added compelling evidence, in the expert's opinion, of the intent to sell. The expert further testified that defendant had been a user for a very long time and that a longtime user could consume up to three grams a day.
A jury convicted defendant of possession for sale, transportation for sale, resisting arrest, and possession of the syringes. The trial court sentenced him to a total of 27 years in state prison. He appeals.
DISCUSSION
I.
Transportation and Flight
A. At Trial
Defendant raises several legal issues arising from the premise that the jury equated his flight from the police officers with transportation of the methamphetamine. Since there has been a significant change in the law regarding transportation for sale while this appeal has been pending, we will begin with a description of how the case was tried and how the issue was framed by defendant before the statutory change became effective. Then we will consider the impact of the statutory change on the verdict before us.
The jury was instructed on possession for sale and transportation for sale. At the time, possession for sale was a specific intent crime, whereas transportation for sale was a general intent crime. The court distinguished the two as follows, pursuant to CALCRIM No. 252:
"The crimes require proof of the union, or joint operation, of act and wrongful intent.
"The following crimes require general criminal intent:
"Count 2: Transportation of Methamphetamine; [¶] . . . [¶]
"For you to find a person guilty of these crimes, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he intentionally does a prohibited act; however, it is not required that he intend to break the law. The act required is explained in the instruction for the crime.
"The following crime requires a specific intent:
"Count 1: Possession of Methamphetamine for Sale. [¶] . . . [¶]
"For you to find a person guilty [of] these charges, the person must not only intentionally commit the prohibited act with the intent set forth above, but also must do so with a specific mental state. The specific mental state required is explained in the instruction for the crime."
The court then instructed the jury on the elements of the crimes of possession for sale and transportation for sale, pursuant to CALCRIM No. 2302 and CALCRIM No. 2300.
"Possession for Sale of Controlled Substance [¶] . . . [¶]
"To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed a controlled substance; [¶] 2. The defendant know of its presence; [¶] 3. The defendant knew of the substances nature or character as a controlled substance; [¶] 4. When the defendant possessed the controlled substance, he intended to sell it; [¶] 5. The controlled substance was methamphetamine; [¶] AND [¶] 6. The controlled substance was in a usable amount.
"Selling for the purpose of this instruction means exchanging methamphetamine for money, services, or anything of value."
"Sale, Transportation, etc. of Controlled Substance [¶] . . . [¶]
"To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant transported methamphetamine, a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substance's nature or character as a controlled substance; [¶] AND [¶] 4. The controlled substance was methamphetamine.
"A person transports something if he carries or moves it from one location to another, even if the distance is short."
The drug expert opined that defendant possessed the methamphetamine for sale. He did not opine whether he transported it for sale. The prosecutor argued he did transport the methamphetamine for sale. It is important to note that the prosecutor pointed out to the jury that "the defendant transported the methamphetamine from the room to the truck and then again from the truck running across the street trying to get away with it." Anticipating the defense that he was not transporting the methamphetamine but merely running away from the police, the prosecutor continued: "Now, the defendant may argue that, hey, he wasn't transporting it, he was merely running away from the police, but like I said at the beginning, he ran away with the meth. in his pocket. He wasn't trying to distance himself from the methamphetamine. He was trying to distance himself from the police officers while he was carrying his methamphetamine, and that's a major distinction."
Indeed, defense counsel did argue defendant was not guilty of transporting methamphetamine because he was simply running away from the officers.
In rebuttal, the prosecutor again argued: "So [defendant] did not go from one location to another, but the defense admits the defendant did, in fact, run away from the officers to get away from them with his methamphetamine. That was his intent. That's what I argued to you at the beginning, and that's what the officers told you. That is transportation. The entire reason he is running is to get his methamphetamine away from the officers.
"If you remember, I told you if he were trying to separate himself and not transport it, he would have thrown it, separate himself from the meth., but he was running with it to get away from the officers with the methamphetamine. Straight up, transportation."
During deliberations the jury inquired: "What is the definition of location as in count 2 [¶] 'a person transports something if he carries or moves it from one location to another, even if the distance is short.' " The court responded: "The word 'location' is not specifically defined in the instructions. Words not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."
In less than two hours of deliberations, the jury found defendant guilty as charged.
In defendant's opening brief, he argued that the jury instructions coupled with the prosecutor's argument, permitted the jury to equate his flight from the officers with the movement required for the crime of transportation of methamphetamine—a legally erroneous theory of transporting methamphetamine. In reply, the Attorney General asserted that the essence of defendant's argument was nothing more than a camouflaged claim that he lacked the specific intent to transport the methamphetamine for sale. The flaw, according to the Attorney General, was that transportation was a general intent crime. That was true then, but even the Attorney General acknowledges the crime now requires specific intent to sell. We turn then to the 2014 change in the law and assess how the change impacts this appeal. B. The Law Changes
Health and Safety Code section 11379 prohibits transportation of methamphetamine. At the time of trial section 11379 provided in pertinent part:
All further statutory references are to the Health and Safety Code unless otherwise designated.
"(a) Except as otherwise provided in subdivision (b) and in Article 7 . . ., every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance . . . shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years."
Effective January 1, 2014, section 11379 added the element crucial to the case before us. Section 11379, subdivision (c) now states: "For purposes of this section, 'transports' means to transport for sale." (§ 11379, subd. (c), as amended by Stats. 2013, ch. 504, § 2.) There is no dispute that defendant is entitled to the benefit of this change in the law during the pendency of his appeal. (People v. Eagle (2016) 246 Cal.App.4th 275, 279.) "The amendment explicitly intended to criminalize the transportation of drugs for the purpose of sale and not the transportation of drugs for nonsales purposes such as personal use." (Id. at p. 278.) In supplemental briefing, the parties have debated several additional issues springing from the addition of a new element of the crime. We address those now. C. Jury Allowed to Convict on Erroneous Legal Theory
1. Without Specific Intent: The addition of a new element to a crime after a defendant is found guilty risks depriving the defendant of due process when a jury was not instructed, and therefore, did not find the new element. The Attorney General concedes that generally, " 'failure to instruct on an essential element of the offense is necessarily prejudicial error.' " (People v. Joiner (1988) 204 Cal.App.3d 221, 224.) And the Attorney General also acknowledges that the new element, specific intent, is now required to sustain a conviction for transportation of methamphetamine under section 11379. Nevertheless, in this case the Attorney General insists the error is harmless beyond a reasonable doubt because the jury actually found the requisite special intent, albeit in the context of possession of the methamphetamine for sale. Based solely on the unique facts of this case, we must agree.
An automatic reversal is not required where, as here, the relevant inquiry posed by the omitted instruction was necessarily resolved adversely to the defendant beyond a reasonable doubt. (People v. Lee (1987) 43 Cal.3d 666, 676.) The relevant inquiry is whether defendant entertained the specific intent to sell methamphetamine. The jury expressly found, based on properly given instructions on the specific intent to sell methamphetamine while possessing it, that defendant did indeed have the specific intent to sell. Based on the evidence presented to the jury, a finding that he intended to sell while possessing the methamphetamine was tantamount to a finding he possessed it while transporting because the time frame in which defendant possessed it was the same time frame in which he was transporting it.
The evidence in this case is sparse but potent. The SINIF officers testified that defendant walked from the motel to the truck, deposited some items in the truck, returned to the motel room, walked back to the truck at which time he was confronted by the officers, he ran in and out of the motel, past the officers, and into the street where he was hit by a car. His brown satchel was found in the street with a sizeable quantity of methamphetamine. The significant point for the purposes of defendant's due process claim is that there was no time in this scenario in which he possessed the methamphetamine for sale but was not transporting it. As the Attorney General explains it, "There is no contrary evidence that appellant possessed the methamphetamine at any other time than during his indivisible course of conduct of walking to the truck and then fleeing from officers." The jury's finding that he possessed the methamphetamine for sale, therefore, necessarily constitutes a finding that he had the specific intent to sell the methamphetamine while he was transporting it during his flight from the officers.
Moreover, defendant has a mistakenly narrow understanding of intent. To say, as he does, that while he was running with his methamphetamine he intended to flee the police does not preclude a simultaneous and overarching intent to transport the methamphetamine to another location to complete the sales and avoid confiscation by his pursuers. In short, he could intend to flee and intend to sell. The fact that his primary motivation when confronted with law enforcement was to run away does not, as a matter of law, undermine the prosecution's theory that he ran, at least in part, to save the sale. The jury's finding that, in fact, he did intend to sell renders harmless beyond a reasonable doubt the lack of a second finding that he intended to sell while transporting the methamphetamine. This may be an exceedingly rare case in which we can say with such considerable confidence, indeed confidence beyond a reasonable doubt, that the jury necessarily resolved the specific intent inquiry in the absence of an instruction for the necessity to find the transportation was for sale. But when the possession and the transportation were coextensive and the jury found the defendant specifically intended to sell the methamphetamine he possessed, we also can say the jury necessarily found he transported it for sale.
2. Transportation: As mentioned, before the Legislature added specific intent as an element of transportation, defendant argued that the jury was allowed to convict on the erroneous legal theory by equating flight with transportation. The Attorney General insisted the argument was nothing more than a disguised challenge to the lack of intent and the offense, at that time, required only a general intent. We agree that the argument set forth in the opening brief has been subsumed in the supplemental briefing about the impact of the new legislation. Because defendant does not maintain that he was not carrying the methamphetamine as he ran away from the police, he does not challenge the act of transportation but only whether he intended to sell it as he fled. We address the sufficiency of that evidence below. D. Sufficiency of the Evidence
Defendant continues to insist there is insufficient evidence that he entertained the specific intent to sell. As mentioned above, his lawyer argued he is a user, not a dealer. The evidence certainly suggests otherwise.
Defendant's brown satchel, retrieved from the street after he went over the top of a car, contained over nine grams of methamphetamine. The drug expert testified that the quantity suggested an intent to sell. The inference was bolstered with the many accoutrements found that are associated with the sale of drugs including a digital scale, clean baggies, and records of sales. This evidence is more than sufficient to support the jury finding that defendant intended to sell the methamphetamine he possessed and transported.
Defense counsel hammered home the notion that for a longtime methamphetamine user like defendant, nine grams would only last him about three days. It was the jury's prerogative, not ours, to accept or reject the argument that the quantity was not indicative of an intent to sell because he was likely to consume it himself. Given the abundance of other evidence to suggest the intent to sell, the jury rejected the defense theory and we cannot say the evidence is insufficient to sustain the jury's finding.
We reiterate an argument the prosecutor made to the jury and defendant glosses over on appeal. Defendant focuses exclusively on his intent while attempting to flee from the police and insists he was transporting the methamphetamine not to sell it, but to get away. But the prosecutor suggested that there was sufficient evidence of the intent to sell as he walked from the motel to the truck, a short distance on foot but ample under existing law. (See, e.g., People v. Ormiston (2003) 105 Cal.App.4th 676; People v. Emmal (1998) 68 Cal.App.4th 1313.) We agree. The jury's finding of an intent to sell could be based on his intent while transporting his methamphetamine from the motel to the truck and not while he was fleeing. While it is true, as defense counsel argued at trial, no one testified they saw defendant carrying his brown satchel, there is substantial circumstantial evidence he had it with him as he left the motel room because the officers did not see him take it out of the truck and he had it on him when he was struck by the car. As a result, even if we were to accept defendant's argument he did not intend to sell the methamphetamine while he was running from the police, there is sufficient evidence to support the jury's finding that he did intend to sell it while he transported from the motel room to the truck. E. Lesser Included Offense
Defendant also contends that the addition of a specific intent to sell as an element of transportation under section 11379 renders possession for sale under section 11378 a lesser included offense. He urges us to reverse the section 11378 conviction because a person cannot be convicted of both a greater and lesser offense based on the same evidence. (People v. Sanders (2012) 55 Cal.4th 731, 736.) Defendant argues he could not transport the methamphetamine with the specific intent to sell it without also possessing it with the specific intent to sell. His argument has a logical, commonsense appeal, but it is based on an outmoded analysis of what constitutes a lesser included offense. The proper analysis required by more recent authority is based on the statutory elements of the offense and not the facts established by the evidence at trial.
Defendant relies on a footnote in a 1971 opinion by the California Supreme Court. In People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 3, the majority wrote: "In cases where defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges." As defendant points out, his possession in this case was "incidental to, and a necessary part of, the transportation charged" and "no prior, different or subsequent possession is shown." (Ibid.) The law, however, has changed since 1971.
We addressed the evolution of the law regarding lesser included offenses in an analogous case. In People v. Murphy (2007) 154 Cal.App.4th 979 (Murphy), the defendant was convicted of possessing and selling the same rock cocaine. (Id. at p. 982.) She too argued she was improperly convicted of a greater and lesser included offense. (Ibid.) We rejected the argument because she too had relied on an outdated test. "The outdated test of a necessarily included offense upon which defendant relies encompasses an offense in which the facts established by the evidence at trial make it impossible to commit one offense without also committing another. [Citations.] [¶] Applying the statutory elements test here, a conviction for the greater offense of selling the cocaine (count one) does not require, as one of its statutory elements, the lesser offense of possessing the cocaine for sale (count two); possession is not an essential element of the sale offense. For example, one can broker a sale of a controlled substance that is within the exclusive possession of another. (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524; People v. Rogers (1971) 5 Cal.3d 129, 134 [in fn. 3, however, Rogers applies the outdated test . . . ." (Murphy, supra, 154 Cal.App.4th at p. 983-984.)
Applying the statutory elements test in Murphy, we found defendant was properly convicted of the sale and the possession offenses. (Murphy, supra, 154 Cal.App.4th at p. 984.) As here, the trial court properly stayed the sentence for the possession conviction pursuant to Penal Code section 654, which prohibits multiple punishment. (Murphy, at p. 984.)
Similarly, in People v. Eagle (2016) 246 Cal.App.4th 275, a case involving the recent amendment to section 11379, we again applied the statutory elements test. "Under the elements test, possession of methamphetamine is not a lesser included offense of transporting methamphetamine." (Id. at p. 279.) Thus, even though the possession and the transportation in this case occurred simultaneously, and therefore, the facts established by the evidence at trial make it impossible to have committed one offense without also committing another, the application of the statutory elements tests requires us to consider not the facts but the generic elements of an offense in the abstract. Since it is hypothetically possible to be convicted of transporting methamphetamine without possessing it, we cannot say possession technically is a lesser included offense of transportation. Nonetheless, a defendant cannot be punished for both offenses. While conviction of both offenses is permitted, Penal Code section 654's bar against multiple punishment applies.
II.
The Search Warrant
A. Must the Search of a Person Named in the Warrant be Conducted at the Residence also Authorized to be Searched?
The search warrant executed in this case authorized the search of: "LOCATION #1: 5314 Chestnut St, Anderson, Ca; . . . [¶] PERSONS #1: Applegate, Philip Michael, white male, 43 years of age, DOB: 09-09-1965, 5-7, 185 Lbs, Brown hair and brown eyes. [¶] VEHICLE #1: 2001 maroon, Dodge truck, license plate number Ca 7G13611." The SINIF officers attempted to search defendant Philip Michael Applegate, as identified and authorized in the warrant, on a public street in front of a motel 16 miles from the Chestnut residence they also had authority to search. Unable to find any California authority to support the counterintuitive notion that a search warrant authorizing the search of a specifically named person, alleged to be involved in the possession and sale of methamphetamine, can only be served on the person in the residence also identified in the warrant, defendant cites an old New York case in which the police had focused on a florist shop as a potential gambling operation but searched a defendant a quarter mile from the shop (People v. Kerrigan (1975) 49 A.D.2d 857 ), a Georgia case in which the police searched the defendant's genitals for drugs, noticed a bulge in his pocket, and confiscated drugs at his place of employment although the warrant had been issued to search his home (State v. Dills (1999) 237 Ga.App. 165 ), and a Kentucky case in which the purpose of the warrant was to authorize a search of premises and persons at a specific address yet the police searched defendant five miles away from the searchable premises. (Parks v. Commonwealth (Ky. 2006) 192 S.W.3d 318.) We are under no compulsion to accept either the holdings or rationale of this secondary authority and reject a general rule that a person named in a search warrant cannot be searched on a public street for the drugs and accoutrements identified in the warrant. We independently review the legality of the search. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Defendant's request for us to take judicial notice of the distance is granted. --------
It is true the Fourth Amendment is intended to prohibit general searches. (People v. Balint (2006) 138 Cal.App.4th 200, 205-206.) Our framers feared exploratory searches and imposed the warrant requirement to curb government encroachment into our most private and sacred spaces. (Ibid.) Warrants are favored and presumed valid. (People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218, 224.) "By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." (Maryland v. Garrison (1987) 480 U.S. 79, 84 [94 L.Ed.2d 72, 80].)
Defendant insists there was no probable cause to search him so far away from the residence where the police suspected drugs and drug paraphernalia would be found. Not so. The federal and state Constitutions "permit the issuance of a warrant authorizing search of a person, so long as the person to be searched is particularly described." (Lohman v. Superior Court (1977) 69 Cal.App.3d 894, 900 (Lohman).) The warrant conformed to constitutional standards of specificity and supported a search of the person described as long as the search was not excessive in scope. The constitutional vice in Lohman was the fact it was served in a residence not described in the warrant and thereby violated the very privacy concerns the Fourth Amendment was designed to protect. (Id. at p. 905.) The court expressly distinguished cases, like ours, in which the defendant was described as the person to be searched and the search was conducted in public. "Officers may detain the person to [be] searched for the purpose of conducting the search [Citations]. If the person to be searched, having lawfully been observed, flees, officers may pursue him." (Id. at p. 903.) The court aptly observed that a search warrant authorizing the search of a person need not specify the place in which the search is to be conducted and distinguished the search of a private residence, with the attendant assault on the heightened privacy interests of the occupants, from cases in which "officers observed the person to be searched in public." (Ibid.)
Here too defendant was specifically described as the person to be searched for the drugs and drug paraphernalia described in the warrant. He had a long history of possessing, using, and selling methamphetamine and was likely to possess and transport his merchandise on his person. The SINIF officers had him under surveillance at a motel and approached him in a public parking lot where they attempted to search him. In these circumstances, defendant, like the residence described in the warrant, was a place to be searched. The officers properly obtained their warrant and would have searched in public had he not run into the street and been hit by the car whereupon his goods were scattered on the public street. Defendant's suggestion that the police officers lacked probable cause to search is completely without merit. To the contrary, they obtained the warrant naming him as the person to be searched, as favored by the Fourth Amendment, and they did not violate the reasonable scope of the warrant by commencing a search 16 miles from the residence also described in the warrant in a public venue. B. Did the Sealed Information Supply Probable Cause to Issue the Search Warrant?
In People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), the California Supreme Court "conclude[d] that, taken together, the informant's privilege ([Evid. Code] § 1041), the long-standing rule extending coverage of that privilege to information furnished by the informant which, if disclosed, might reveal his or her identity, and the codified rule that disclosure of an informant's identity is not required to establish the legality of a search pursuant to a warrant valid on its face ([Evid. Cod,] § 1042, subd. (b)) compel a conclusion that all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege and protect the identity of a confidential informant." (Hobbs, at p. 971.) "But, in order to preserve a defendant's right to 'reasonable access to information that might form the basis for challenging the validity of a search warrant,' a trial court must follow certain procedures when a search warrant affidavit has been fully or partially sealed. [Citation.] These procedures 'strike a fair balance between the People's right to assert the informant's privilege and the defendant's discovery rights.' " (People v. Heslington (2011) 195 Cal.App.4th 947, 956.)
"Once the affidavit is found to have been properly sealed, the court should proceed to determine ' whether, under the "totality of the circumstances" presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was "a fair probability" that contraband or evidence of a crime would be found in the place searched pursuant to the warrant' (if the defendant has moved to quash the warrant) or ' whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing' (if the defendant has moved to traverse the warrant). [Citation.]" (People v. Galland (2008) 45 Cal.4th 354, 364.)
Defendant and the Attorney General request us to exercise of our independent review of the sealed attachment to the affidavit to determine whether there was probable cause for the issuance of a search warrant. The trial court followed the Hobbs procedure by conducting an in camera hearing and reviewing the confidential attachment to the warrant affidavit. Neither party challenges these procedures. Our independent review of the record and the sealed materials confirms the propriety of the trial court's conclusion that disclosure of its contents would tend to reveal the identity of the informant, jeopardize his or her safety, and compromise law enforcement's ability to use the informant in the future. Further, under the totality of the circumstances, including the corroboration supplied by the sealed attachment, there was probable cause to support the issuance of the warrant in that there was a "fair probability" that contraband would be found either at the residence, on defendant, or in the vehicle described in the affidavit.
III.
Sentencing
A. Discretion to Strike Section 11370 .2 Enhancements
Defendant urges us to remand the case for resentencing because the trial court was unaware of its discretion to strike the section 11370.2 enhancements. At sentencing, the prosecutor reminded the court it had discretion to strike defendant's 1989 prior felony conviction for burglary but neither the prosecutor, defense counsel, or the court mentioned the possibility of striking the enhancements. The Attorney General does not assert on appeal that the court lacks the discretion to strike the enhancements. Nevertheless, defendant maintains that a fair reading of the record, particularly in the absence of cases validating his position that the court retains the discretion to strike the enhancements, reveals the court was unaware of its discretion to strike the enhancements.
The Attorney General reads the record differently and characterizes it as a typical "silent record" case. In other words, the Attorney General contends the record is silent as to whether the trial court understood it had discretion under Penal Code section 1385 to strike the section 11370.2, subdivision (c) enhancements. The Attorney General acknowledges that a remand for resentencing is the appropriate remedy when the misapprehension of discretionary sentencing is affirmatively demonstrated by the record, but insists that a petition for habeas corpus is the appropriate remedy when the record is silent. (People v. Fuhrman (1997) 16 Cal.4th 930, 944-945 (Fuhrman); People v. Meloney (2003) 30 Cal.4th 1145, 1151.) We agree.
Defendant asks us to infer that the court was unaware of its discretion because it failed to mention that it had the discretion to do so.
On appeal, however, "we presume that the trial court followed established law and thus properly exercised its discretion in sentencing a criminal defendant. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 644 [97 Cal. Rptr. 2d 528, 2 P.3d 1081] [reviewing court presumes trial court knew and applied correct statutory and case law], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal. Rptr. 2d 409, 25 P.3d 618]; People v. Esparza (2015) 242 Cal.App.4th 726, 742 .) Thus, we may not assume the court was unaware of its discretion simply because it failed to explicitly refer to its alternative sentencing choices. (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421 ; People v. Fuhrman (1997) 16 Cal.4th 930, 933, 944-947 [67 Cal. Rptr. 2d 1, 941 P.2d 1189].)" (People v. Weddington (2016) 246 Cal.App.4th 468, 492.)
Like the Attorney General, we characterize this as a "silent record" case. Although remand for resentencing is unavailable, defendant is not without a remedy. The Supreme Court reminds us: "Denial of remand on appeal in such cases does not leave a defendant who possesses a meritorious claim, supporting the exercise of discretion in his or her favor, without an effective remedy. A defendant in such a case is free to file a petition for writ of habeas corpus in the sentencing court, setting forth the circumstances that would support setting the matter for a new sentencing hearing and striking one or more prior serious or violent felony convictions pursuant to the provisions of section 1385. In the event the sentencing court concludes that the petition filed by such a defendant has possible merit, the court may seek an informal response from the People or issue an order to show cause. If, on the other hand, the court concludes that the petition fails to establish any basis upon which to invoke its discretion under section 1385, the court may summarily deny the petition." (Fuhrman, supra, 16 Cal.4th at p. 946.)
Here we also observe that the trial court refused to exercise its discretion to strike the strike "because in considering all of the applicable factors, the Court finds that the defendant is not outside the spirit of the strike scheme and the Court finds the interests of justice are served by imposing a sentence consistent with the strike scheme." The court found defendant had not overcome the presumption that he is ineligible for parole. The court explained, "Even if neither of those code sections applied, the Court would find defendant is not a fit candidate for probation, because the defendant has a significant history of theft and drug-related convictions. He has a prior history of -- has a poor history of complying with the terms of parole, and his ability to comply with the reasonable terms of probation is suspect, considering his past performance on probation and parole, and he has, in this Court's view, not expressed remorse for his actions."
The court imposed the higher term "because the Court believes the higher term best serves the interests of justice and the objectives of sentencing." The court further explained, "The matter in which the crime was carried out indicates planning, sophistication, or professionalism. The crime involved a large quantity of contraband. The defendant's prior conviction as an adult and sustained petitions as juvenile proceedings are numerous." Moreover, the court found no factors in mitigation.
As a result of the court's full-throated rejection of defendant's request to strike defendant's prior conviction, its imposition of the upper term, and its failure to find a single mitigating factor, we conclude the court would not have exercised its discretion to strike any of the enhancements even if we accepted defendant's argument the court was unaware of its sentencing discretion to strike the enhancements. " '[I]f the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.) B. Penal Code Section 654 Stay for Misdemeanor Resisting a Police Officer?
Penal Code section 654 bars multiple punishments for the same act or omission unless the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Defendant contends that his concurrent sentence for evading a police officer must be stayed pursuant to Penal Code section 654 because his conduct in transporting the methamphetamine and his flight from the police officers was pursuant to a single indivisible course of conduct pursuant to a sole objective. He is mistaken.
We revisit some of the same themes already considered. The first is debunking the premise once again that defendant could only entertain one objective or one intent. Based on the evidence of sales, including the scales, the text messages, and the packaging material, defendant demonstrated an intent to sell that preceded his encounter with the police officers. That objective, to sell his contraband, did not evaporate as soon as he fled and the officers pursued him. Rather he simply took on a more immediate objective as well—to get away with the loot.
The second false premise is defendant's exclusive focus on the time frame in which he was running away from the officers. He equates the transportation with his flight. But he minimizes or ignores the fact that he walked from the motel room to the truck, back to the motel room, and back to the truck before the officers confronted him. Thus, his objective, before ever encountering the officers, was possession and transportation for sale. He may have changed his focus, and therefore, his objective once he encountered the officers and decided to flee. But again the evidence suggests that he had two distinct objectives—to transport and to flee—and the multiple criminal objectives justify the trial court's factual finding, a finding we must uphold on appeal where, as here, it is supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BLEASE, J. ROBIE, J.