Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVI022096. Jon D. Ferguson, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, Scott C. Taylor and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant David Lashay Brown appeals from his conviction on multiple counts. We reject the majority of his contentions, but agree that the court erred in imposing unstayed sentences on two counts of resisting or obstructing an officer. Accordingly, we affirm the judgment but will remand with directions to the trial court to modify the sentence.
PROCEDURAL HISTORY
Defendant was convicted of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); counts 1 and 2); possession of marijuana for sale (Health & Saf. Code, § 11359; count 3); resisting an officer by force or violence (Pen. Code, § 69; count 4); and resisting an officer with firearm removal (Pen. Code, § 148, subd. (c); count 5). Two counts of receiving stolen property (Pen. Code, § 496, subd. (a)) were dismissed at the prosecutor’s election after the court granted a motion for disclosure of the identity of a confidential informant who was a material witness with respect to those counts.
All further statutory references will be to the Penal Code unless otherwise indicated.
We discuss below defendant’s contention that the motion for disclosure of the confidential informant’s identity should have been granted as to all counts.
In a bifurcated proceeding, the court found the allegation that defendant had suffered a prior strike conviction true and found that defendant had served one prior prison term. (§§ 667, subd. (b), 1170.12, subds. (a)–(d), 667.5, subd. (b).)
The court sentenced defendant to a total term of 12 years four months in state prison. Defendant filed a timely notice of appeal.
FACTS
On July 21, 2005, San Bernardino County Sheriff’s deputies obtained a warrant to search defendant’s home as part of an investigation into several vehicle burglaries. Sergeant Robert Hughes kept the home under surveillance while detectives finalized plans to execute the warrant. Around 10:00 a.m., a man resembling defendant left the house and drove away in a gray Chevy Tahoe SUV. Hughes radioed detectives and began to follow the SUV. Detective Greg Myler began to follow Hughes and the SUV. Other detectives continued to defendant’s house to execute the warrant.
Hughes activated his red emergency light and siren and had defendant pull over. Myler pulled up beside Hughes’s car. Hughes approached the SUV and asked defendant if he was David Brown. Defendant stated that he was and acknowledged that he lived at the address which was the subject of the search warrant. As Hughes returned to his car to radio in a report, Myler asked defendant to step out of his vehicle. Myler told defendant that he was being stopped pursuant to a search warrant. Defendant elbowed Myler in the chest, then began hitting Myler. Defendant struggled with both Myler and Hughes, hitting and striking Myler and grabbing at his waist area in the vicinity of his holster and handcuffs. When defendant was subdued, Myler rolled defendant onto his stomach and placed him in a choke hold while lying on top of him. Myler then discovered that both his handcuffs and his pistol were missing. Hughes found the handcuffs in a bush and handcuffed defendant. When Myler got up, he discovered his pistol lying on defendant’s back. Defendant had $130 on his person.
The search of defendant’s home pursuant to the warrant revealed a substantial amount of marijuana in the master bedroom and a small amount of marijuana in the pocket of a man’s jacket in a downstairs closet. The marijuana in the master bedroom was packaged in several larger and smaller plastic bags. There were also several empty smaller bags and two scales. The detectives also found two loaded handguns and a photograph of defendant holding a pistol similar to one of the two found in the bedroom. There was $170 in cash on the dresser.
When he was questioned after his arrest, defendant said that the marijuana was his but that he did not sell it. He said the guns were his and that he liked to collect guns. He also stated that he had been unemployed for the last six months.
LEGAL ANALYSIS
THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT’S MOTION TO REPRESENT HIMSELF
On the day trial was set to begin, defendant asked to be allowed to represent himself. After a lengthy colloquy with the court, defendant stated that the court had convinced him that self-representation was not in his best interest and withdrew his request. The following day, immediately before jury selection was to begin, defendant renewed his request to represent himself. He stated that he was ready to proceed. After further colloquy, the court denied the motion, on two grounds: that the motion was untimely because trial had already commenced, and that defendant’s disruptive behavior during the two hearings on his motions for self-representation gave the court a reasonable basis for believing that defendant would be disruptive if he were allowed to represent himself.
The court also expressed concern about defendant’s capacity to represent himself, but noted that defendant had been referred for an evaluation of his competence to stand trial pursuant to section 1368 and had been found competent. The court’s ruling on the motion was based solely on the issues of timeliness and disruptiveness, however.
Defendant now contends that the denial of the motion was reversible error. He asserts that the motion was timely, and that the trial court abused its discretion, under People v. Windham (1977) 19 Cal.3d 121 (Windham).
Defendant notes that under the federal rule, a motion for self-representation is normally deemed timely as a matter of law if it is made before the jury is impaneled, and that a timely motion must be granted unless it is shown that the motion is made for the purpose of delay. (See Armant v. Marquez (9th Cir. 1985) 772 F.2d 552, 555.) He does not, however, assert that his motion was timely as matter of law. We assume that he recognizes that the California Supreme Court has rejected the federal rule as “too rigid,” in favor of the rule enunciated in Windham, supra. (People v. Burton (1989) 48 Cal.3d 843, 854.)
In Windham, the California Supreme Court held that although a defendant has a constitutional right to represent himself, that right is absolute only if it is asserted “within a reasonable time prior to the commencement of trial.” (Windham, supra, 19 Cal.3d at p. 128 & fn. 5.) If the defendant waits until the trial has commenced to assert his right to self-representation, it is within the sound discretion of the trial court to determine whether the defendant may dismiss his attorney and represent himself. (Id. at p. 124.) If the motion is not made within a reasonable time prior to the commencement of the trial, the defendant has the burden of justifying the delay. (People v. Valdez (2004) 32 Cal.4th 73, 102 (Valdez).) A factor to be considered is whether granting the request will delay the trial. (Windham,at p. 128; Valdez,at p. 103.)
Here, defendant’s motion was made on the date jury selection was to begin. This is not a reasonable time prior to the commencement of trial. However, because defendant did not request a continuance but stated that he was ready to proceed, the lateness of the request does not in itself justify denying his motion. (See Valdez, supra, 32 Cal.4th at p. 103.)
The court’s ruling did not rely solely on timeliness grounds, however. An equal factor in the court’s determination was its conclusion that defendant would be disruptive at trial if he were allowed to represent himself. This is a legitimate ground for denying even a timely motion for self-representation. The constitutional right to self-representation depends upon a showing that the defendant is able and willing to abide by rules of procedure and courtroom protocol, and if the trial court determines that the defendant “is[,] and will remain[,] . . . disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words,” the trial court has the discretion to deny even a timely motion for self-representation. (People v. Welch (1999) 20 Cal.4th 701, 734-735.) The trial court’s denial of a motion for self-representation based upon the determination that a defendant is likely to be disruptive if allowed to represent himself “‘will not be disturbed in the absence of a strong showing of clear abuse.’ [Citations.]” (Id. at p. 735.)
Here, the trial court reasonably concluded that there was a risk that defendant would disrupt the proceedings if he were allowed to represent himself. During the lengthy colloquy concerning his original motion, defendant was argumentative. He accused both the court and counsel of not telling the truth and not playing by the rules. He frequently interrupted the court and stated that he did not believe what the court was telling him about prior rulings on his motions and that he did not believe the court’s statements concerning the applicable law. For example, he insisted that certain police witnesses had been excused from the trial and would not be permitted to testify. He said he did not believe the judge when he told him that the witnesses had not been “excused,” but had merely been excluded from the courtroom during the preliminary hearing. He also insisted that his motion to traverse the search warrant had never been heard, and adamantly refused to accept the court’s statement that the motion had been submitted without testimony and had been ruled upon. All of this amply supports the court’s conclusion that defendant would be disruptive if he were permitted to represent himself. Accordingly, there was no abuse of discretion.
THE MOTION TO TRAVERSE OR QUASH THE SEARCH WARRANT AND TO SUPPRESS EVIDENCE WAS PROPERLY DENIED; THE MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANT’S IDENTITY WAS PROPERLY GRANTED IN PART AND DENIED IN PART
Before the preliminary hearing, defendant filed a motion to traverse and/or quash the search warrant and to suppress evidence seized pursuant to the warrant. The affidavit in support of the warrant was based on information provided by a confidential informant, and the affidavit was sealed. Defendant asked the court to conduct an in camera hearing to determine whether the affidavit contained any material misrepresentations and whether it set forth sufficient competent evidence to support the finding of probable cause. The court conducted the in camera hearing as requested. It concluded that the affidavit in support of the search warrant did not contain any material misrepresentations, and that based on the information in the affidavit, there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant.
Defendant also filed a motion for disclosure of the identity of the confidential informant. The court made the prima facie finding requiring disclosure of the confidential informant’s identity with respect to the two counts of receiving stolen property. In response to that ruling, the prosecutor elected to dismiss those counts.
Defendant now asks that we review the sealed transcript of the in camera proceedings and all sealed and public materials to determine whether the search warrant should have been quashed or traversed and whether the court properly limited its ruling requiring disclosure of the confidential informant’s identity to the dismissed counts.
When a search warrant is sealed to protect the identity of a confidential informant who has supplied probable cause for issuance of the warrant, the court need not disclose the informant’s identity if disclosure is sought “merely to aid in attacking probable cause.” (People v. Hobbs (1994) 7 Cal.4th 948, 959.) The court may also refuse to disclose the content of the informant’s statements, if the disclosure would tend to reveal the identity of the informant. (Id. at p. 962.) Upon motion by the defendant to traverse the warrant, the court should hold an in camera hearing to determine whether the defendant’s general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the warrant affidavit or by any testimony at the hearing. If the materials and testimony do not support the allegations, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. (Id. at p. 974.) Upon a motion to quash the warrant for lack of probable cause, the court should hold an in camera hearing to determine whether, under the totality of the circumstances presented in the search warrant affidavit, there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. (Id. at p. 975.) If the court finds that the affidavit and related materials furnished probable cause for issuance of the warrant, the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. (Ibid.) Finally, upon a motion for disclosure of the identity of a confidential informant, the court should hold an in camera hearing to determine whether the informant is a material witness on any of the charged offenses. An informant is a material witness if there appears, from the evidence presented at the hearing, a reasonable possibility that the informant could give evidence on the issue of guilt that might exonerate the defendant. (People v. Lawley (2002) 27 Cal.4th 102, 159.)
We have examined the transcript of the in camera hearing and the public portions of the search warrant affidavit. The sealed portion of the affidavit is not contained in the record on appeal. However, there was extensive testimony at the hearing concerning the contents of the sealed portion of the affidavit. The record demonstrates that the trial court correctly determined that the confidential informant was a material witness only with respect to the two counts of receiving stolen property. The record also demonstrates that the trial court had a substantial basis for concluding that probable cause existed. (People v. Hobbs, supra, 7 Cal.4th at p. 975, citing Illinois v. Gates (1983) 462 U.S. 213, 238.) The court therefore properly denied the motion to traverse and/or quash the search warrant.
ANY ERROR IN ADMITTING DEFENDANT’S STATEMENTS ARGUABLY OBTAINED IN VIOLATION OF MIRANDA v. ARIZONA WAS HARMLESS
When defendant was questioned at the sheriff’s station after his arrest, Detective David Huston did not advise defendant of his rights, pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), before questioning him about the guns and the marijuana found in the house. After obtaining defendant’s admission that the marijuana and the guns were his and a detailed explanation as to how he came to possess the guns, Huston told defendant that he wanted to “grab [defendant’s] statement on record.” He then read defendant his rights, and defendant agreed to talk to him. Further questioning ensued, and more details were elicited concerning the marijuana and the guns. Defendant was also questioned extensively about a series of automobile burglaries in which defendant was a suspect and about stolen property.
At trial, after defendant’s motion to suppress his statements was denied, Huston testified that during the interview, defendant admitted that the marijuana was his but denied selling it, and admitted that the guns were his. He testified that defendant said he collected guns and stated that he had bought them on the street. Huston also testified that defendant said he had been unemployed for six months.
Defendant asserts that the court erred in admitting the above statements, in that the statements were obtained in violation of Miranda. He relies on Oregon v. Elstad (1985) 470 U.S. 298 (Elstad), and Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).
Defendant’s argument focuses on the statements he made after having received the Miranda warning. The Attorney General appears to concede that the statements defendant made before the Miranda warning was given were inadmissible.
In Elstad, officers went to a young suspect’s home to arrest him on a burglary charge. Before the arrest, one officer told the suspect’s mother that he “felt” that her son was involved in the burglary. The suspect, who was present, then acknowledged that he had been at the scene of the burglary. At the police station, after receiving the Miranda warning, the suspect made a full confession. The United States Supreme Court held that the exchange in the suspect’s home was not for the purpose of interrogation but merely to inform the mother of the reason for her son’s arrest, and that the failure to warn did not appear to have been a deliberate tactic. The court determined that the “innocent” Miranda violation, “unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will” to assert or waive his rights during the subsequent interrogation, did not taint the suspect’s post-Miranda confession, which the court determined to have been voluntary. (Elstad, supra, 470 U.S. at pp. 301, 309, 311-315, 318; see also Seibert, supra, 542 U.S. at pp. 614-615.)
In Seibert, a plurality of the court determined that the police engaged in a deliberate “two-step” tactic to elicit incriminating information before giving a Miranda warning. In contrast to the situation in Elstad, the initial, unwarned interrogation was conducted at the police station, and the questioning was “systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid.” (Seibert, supra, 542 U.S. at p. 616.) The suspect was then given Miranda warnings. The officer “said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used. [Fn. omitted].” (Seibert,at p. 616.) In determining whether the post-warning statements could be used at trial, the court focused on whether under the circumstances the Miranda warning was effective, whereas in Elstad, the court’s focus was on whether the post-warning statement was voluntary. (Seibert, at pp. 616-617; Elstad, supra, 470 U.S. at p. 318.)
In his concurring opinion in Seibert, Justice Kennedy laid out a different test, holding that the admissibility of post-warning statements “should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.” (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) How Seibert affects Elstad has been the subject of some debate. (See United States v. Carrizales-Toledo (10th Cir. 2006) 454 F.3d 1142, 1149-1152.) The majority of federal appellate courts which have addressed the issue have concluded that Seibert, “rather than overruling Elstad, carved out an exception to Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain the postwarning confession.” (United States v. Carter (2007) 489 F.3d 528, 534-536, and cases cited therein.) If such a strategy was not employed, the holding in Elstad applies. (United States v. Carter, supra, at p. 536.)
Our research indicates that no California state court has yet had occasion to resolve that issue. In People v. San Nicolas (2004) 34 Cal.4th 614, the California Supreme Court held that defendant’s non-Mirandized initial questioning after his arrest in Nevada, in which defendant made no incriminating statements and declined to speak until after he had spoken to an attorney, did nothing to coerce his subsequent Mirandized statement, which was made six days later in California. (Id. at pp. 638-639.) The court did not address the question whether a deliberate two-step strategy was employed.
Defendant contends that his post-Miranda statements should have been suppressed based on the factors applied in Seibert. Application of Seibert assumes, however, that the police employed a deliberate two-step strategy of eliciting incriminating statements in violation of Miranda in order to make the subsequent Miranda warnings ineffective. (Seibert, supra, 542 U.S. at p. 616.) Here, the trial court found that no such strategy was employed. We must uphold the trial court’s underlying factual findings if they are supported by substantial evidence. (People v. Waidla (2000) 22 Cal.4th 690, 730.)
Defendant contends that the record does not support that finding. Although we are inclined to agree with defendant that the record as a whole supports the conclusion that Huston did deliberately elicit defendant’s admissions before administering the Miranda warning, we need not determine whether the trial court’s ruling must be upheld by application of the substantial evidence rule, because we conclude that any error in admitting defendant’s post-Miranda statements was harmless beyond a reasonable doubt.
Huston did not inadvertently elicit a confession, as was the case in Elstad, supra, 470 U.S. 298. Nor was he merely asking routine booking questions about defendant’s drug use, as the Attorney General rather disingenuously contends. Rather, he began his interrogation by asking defendant if he wanted to talk about the items found in his home. When defendant denied knowing what Huston was referring to, Huston asked a series of background questions. He then segued into questioning about the items discovered in defendant’s home, and asked pointed questions clearly designed to elicit a confession that the marijuana and the guns belonged to defendant. Huston is a veteran detective with 13 to 14 years’ experience. It simply beggars belief that Huston merely “forgot” to administer Miranda warnings to a suspect in custody before asking pointed questions about contraband found during the search of the suspect’s home.
In order to find the erroneous admission of a defendant’s admission or confession harmless, we must conclude that there is no reasonable possibility that the error contributed to the verdict. (Arizona v. Fulminante (1991) 499 U.S. 279, 310; Chapman v. California (1967) 386 U.S. 18, 23, 26.) “To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt (1991) 500 U.S. 391, 403.) “Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is ‘whether the . . . verdict actually rendered in this trial was surely unattributable to the error.’” (People v. Neal (2003) 31 Cal.4th 63, 86, quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)
We recognize that a confession is so persuasive that it will often overwhelm the defense, and that the erroneous admission of a confession or admission is much more likely to be prejudicial than other categories of evidence. (People v. Cahill (1993) 5 Cal.4th 478, 503.) Nevertheless, “in many instances it [is] possible for an appellate court to determine with confidence that there is no reasonable probability that the exclusion of the confession would have affected the result.” (Id. at p. 505.) This is such a case.
There was strong circumstantial evidence that defendant possessed the marijuana, either by himself or perhaps jointly with another resident of the house. The majority of the marijuana, along with the packaging material and the scales, was found in the master bedroom. Defendant did not dispute the prosecution’s assertion that the master bedroom was his room, and he does not suggest that he could have done so. Dominion and control over the area where contraband is found is circumstantial evidence of actual or constructive possession of the contraband. (People v. Rushing (1989) 209 Cal.App.3d 618, 621-622.) Marijuana was also found in the pocket of a man’s jacket in a downstairs closet. There was evidence that defendant was the sole male resident of the house, and there was no evidence that any other male was present in the house. In addition, when defendant learned that his house was being searched pursuant to a warrant, he attempted to flee. Flight supports an inference of consciousness of guilt and constitutes an implied admission. (People v. Garrison (1989) 47 Cal.3d 746, 773.) Thus, even in the absence of defendant’s express admission that the marijuana was his, the evidence so strongly pointed to his possession of the marijuana that any error in the admission of his statements was harmless beyond a reasonable doubt.
Similarly, evidence independent of defendant’s admissions strongly supports the conclusion that defendant possessed the guns. The guns too were found in the master bedroom, along with a photograph of defendant holding a similar gun, and defendant did not dispute the assertion that it was his bedroom. In the absence of any evidence that the guns belonged to defendant’s mother or girlfriend, who were the only other occupants of the house, the presence of the guns in defendant’s bedroom can lead only to the conclusion that the guns were his. And, the consciousness of guilt defendant displayed when he attempted to flee is also an implied admission that defendant possessed the guns. (People v. Garrison, supra, 47 Cal.3d at p. 773.)
Thus, although we recognize that an admission is powerful evidence (People v. Neal, supra, 31 Cal.4th at p. 86; see also Arizona v. Fulminante, supra, 499 U.S. at p. 312), we can conclude beyond a reasonable doubt that even in the absence of defendant’s admission that he owned the marijuana and the guns, the jury would have convicted him of possession of marijuana for sale and of illegal possession of firearms. Defendant’s admissions therefore did not contribute to the conviction within the meaning of Chapman v. California, supra, 386 U.S. at page 26.
Defendant did not admit that he possessed the marijuana for sale. On the contrary, as Huston testified, defendant denied it. However, there was substantial evidence, including the amount of marijuana in the bedroom and the presence of packaging materials, which supports the inference that he possessed it for sale rather than personal use.
DEFENDANT WAS NOT PENALIZED FOR EXERCISING HIS RIGHT TO TRIAL
Shortly before jury selection commenced, the court offered defendant an indicated sentence of seven years eight months if he chose to plead guilty. The court said that it would apply the mitigating factor of early acknowledgement of guilt to impose concurrent rather than consecutive terms on some counts. The court also stated that section 654 would apply to counts 2 and 5. The court warned defendant that it might impose a greater sentence after hearing the evidence at trial and after learning about defendant’s record, “if those provide aggravating factors.” Defendant declined the offer. After trial, the court imposed a sentence of 12 years four months. It did not apply section 654 to any of the counts. It imposed the upper term on the principal count and imposed consecutive subordinate terms, based on aggravating factors it found applicable. Defendant now contends that by imposing a longer sentence after trial than it offered him prior to trial, the court impermissibly penalized him for exercising his right to trial.
Counts 1 and 2 charged illegal possession of a firearm; counts 4 and 5 charged resisting an officer with force or violence (§ 69) and resisting an officer with firearm removal (§ 148, subd. (c)), respectively.
A court may not chill a defendant’s exercise of his constitutional right to trial either by offering a more lenient sentence in return for a guilty plea than the court would impose following a trial, or by imposing a more severe sentence because the defendant elects to go to trial. (In re Lewallen (1979) 23 Cal.3d 274, 281 (Lewallen).) The mere fact that the defendant received a more severe sentence after trial than he was offered before trial is not enough to support the inference that he was penalized for exercising his constitutional rights, however. (People v. Szeto (1981) 29 Cal.3d 20, 35 (Szeto).) The court may legitimately impose a more severe sentence after trial if the evidence at trial or the probation report reveals more adverse information about the defendant than was known at the time the offer was made. (Lewallen,at p. 281.) It may also impose a more severe sentence if the evidence at trial reveals additional aggravating factors pertaining to the crime than were known at the time of the offer. (See Cal. Rules of Court, rule 4.421.)
If the court’s exercise of its sentencing discretion is supported by facts in the record, we will not infer vindictiveness. We can conclude that a defendant has been penalized for exercising his right to trial only if the trial judge’s comments reasonably give rise to that inference. (Szeto, supra, 29 Cal.3d at p. 35.) In Lewallen the trial judge said, after the defendant rejected a plea offer, “‘[I]f a defendant wants a jury trial and he’s convicted, he’s not going to be penalized with that, but on the other hand he’s not going to have the consideration he would have had if there was a plea.’” (Lewallen, supra, 23 Cal.3d at p. 280, italics omitted.) The California Supreme Court interpreted that remark to mean that the trial court had determined, before having heard the evidence or having learned of any aggravating factors, to treat the defendant differently merely because he had asserted his constitutional right to a trial. (Ibid.)
Here, the court informed defendant that the mitigating factor it would rely on if he entered a guilty plea—early acknowledgement of guilt—would not be available if he went to trial, and that he could receive a more severe sentence after trial if the evidence or probation report revealed aggravating factors not then known to the court. Defendant contends that this is specious, because an admission of guilt after the trial had commenced and nearly a year after defendant was arrested, could not be considered an early acknowledgment of guilt. (See People v. Alexander (1992) 8 Cal.App.4th 602, 605.) Even if that is true, however, we fail to see how an arguably improper pretrial offer of leniency gives rise to an inference that the sentence imposed after trial was vindictive.
The only other fact defendant cites in support of his contention is that although the court in its pretrial offer stated that section 654 precluded imposition of sentence on two counts, it did in fact impose sentence on those counts. We note that although defendant asserts on appeal that section 654 does preclude imposition of sentence on both counts of resisting an officer (see discussion below), he does not challenge the legality of the sentences imposed on the two counts of illegal firearm possession. We infer that defendant’s counsel has researched this issue and concluded that section 654 does not preclude imposition of sentence where the two counts are based on possession of two weapons on the same date. (Cf. People v. Spirlin (2000) 81 Cal.App.4th 119, 129-131, in which we held that possession of the same weapon on three different dates did not support multiple sentences on three counts of possession of a firearm by a felon.) Presumably, then, he recognizes that the court was in error when it originally stated that section 654 applied to those counts. The court’s correction of that error does not support the inference that the court acted vindictively in sentencing defendant.
As to the two counts of resisting an officer, the court concluded after having heard the evidence at trial that the two counts had separate objectives. As we discuss in the next section of the opinion, the court’s conclusion is erroneous. An error in the application of section 654 does not in itself support an inference of vindictiveness, however, and there is nothing in the record that does support such an inference, apart from the fact that the court imposed a more severe sentence. As discussed above, that is not enough to meet defendant’s burden. (Szeto, supra, 29 Cal.3d at p. 35.)
SECTION 654 PRECLUDES IMPOSITION OF SENTENCE ON BOTH COUNT 4 AND COUNT 5
Defendant contends that section 654 precludes imposition of sentence on both count 4, resisting a peace officer with force or violence (§ 69), and count 5, resisting a peace officer and removing a firearm from the person or immediate presence of the officer (§ 148, subd. (c)). The evidence showed that Myler struggled to subdue defendant to place him under arrest. During the course of the struggle, Myler’s gun came out of its holster. At the end of the struggle, when defendant was lying prone on the ground, the gun was found resting on defendant’s back. The trial court found that defendant acted with two objectives: to resist or delay Myler (count 4) and to cause Myler “significant harm” (count 5), presumably by using the gun on him. Defendant contends that both offenses were committed in furtherance of the single objective of avoiding arrest.
Myler did not know how his gun came out of his holster, and neither he nor Hughes saw defendant with the gun in his hands. However, Myler testified that he felt defendant’s hands “in the area” of his gun and that defendant’s actions “could” have caused the gun to come out of the holster. He also testified that the gun had never before simply come out of the holster during a struggle with a suspect. The jury evidently concluded that defendant removed the gun from the holster, as opposed to having dislodged it inadvertently during the altercation. (See People v. Matthews (1999) 70 Cal.App.4th 164, 172-175 [conviction under § 148, subd. (c) requires showing that defendant intentionally took or removed firearm from officer; inadvertently causing the officer to drop his weapon does not suffice].) Defendant does not challenge the sufficiency of the evidence to support that conclusion.
Section 654 provides that “[a]n 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.” (§ 654, subd. (a).) If all offenses were incident to one objective, the defendant may be punished for only one of the offenses. (People v. Perez (1979) 23 Cal.3d 545, 551.) On the other hand, if “[the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Whether multiple offenses were committed in furtherance of separate objectives is primarily a question of fact, and we ordinarily review such a finding under the deferential substantial evidence rule, considering the evidence in the light most favorable to the court’s ruling and presuming the existence of every fact the court could reasonably deduce from the evidence. (People v. Martin (2005) 133 Cal.App.4th 776, 781 (Martin).) In this case, however, we conclude that even if defendant seized the gun intending to use it on Myler, as the trial court found, this did not constitute a separate objective which permits punishment under both section 69 and section 148. This is a question of law, not of fact.
Section 69 penalizes a person “who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty . . . or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty.” (§ 69, italics added.) The statute is designed to protect police officers against violent interference with the performance of their duties. (Martin, supra, 133 Cal.App.4th at p. 782.) An act of violence against a police officer, committed with the objective of resisting arrest, is a violation of section 69, even though it also constitutes another offense, such as battery on a police officer or assault with a deadly weapon. (Martin,at pp. 781-783.) Section 69 would therefore encompass seizing the officer’s gun and shooting him with it, if the objective was to resist the officer in the performance of his duty. Here, if defendant intended to use Myler’s gun to cause him harm, his objective in doing so was to resist or avoid arrest. Thus, section 654 precludes imposition of sentence on both count 4 and count 5.
Section 654 mandates imposition of sentence under the provision which provides for the longest potential term of imprisonment. (§ 654, subd. (a).) Both section 69 and section 148, subdivision (b) provide for imprisonment in the county jail not to exceed one year or in state prison. We will therefore remand for resentencing to allow the trial court to determine which count should be stayed.
THE TRIAL COURT’S RELIANCE ON A SENTENCING FACTOR NOT FOUND BY THE JURY WAS HARMLESS
Defendant contends that his federal constitutional right to have a jury determine any facts used to impose the upper term on count 1 was violated because the trial court relied on two sentencing factors based on facts which were not submitted to or found by the jury.
The court found two aggravating factors: that the crimes were carried out in a manner showing sophistication, planning or professionalism (Cal. Rules of Court, rule 4.421(a)(8)) and that defendant’s performance on probation was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)). The Attorney General contends that the trial court’s reliance on defendant’s unsatisfactory performance on probation was permissible, in that it falls within the exception for recidivism. He contends that because that factor alone supports the upper term, any error in the court’s reliance on the planning or sophistication factor was harmless.
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed its earlier holding in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), that any fact, other than the fact of a prior conviction, which is used to increase the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt. (Blakely, at p. 301.) In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], the court held that California’s determinate sentencing law, as then in effect, violated a defendant’s right under the Sixth and Fourteenth Amendments to have a jury make the factual determinations used to impose a penalty beyond the statutory maximum. (Cunningham v. California, supra, 127 S.Ct. at p. 860.)
Defendant contends that unsatisfactory performance on probation or parole is beyond the scope of the narrow exception for the “fact” of prior convictions, as enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224, and reiterated in Apprendi, supra, 530 U.S. 466. He relies on People v. Govan (2007) 150 Cal.App.4th 1015. As the Attorney General points out, that case is no longer good law, in that review was granted and the case transferred to the Court of Appeal with directions to vacate its decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). (People v. Govan, supra, review granted July 18, 2007, S153330.)
In Black, the California Supreme Court held that the prior conviction exception extends beyond the mere fact of the conviction and includes “other related issues that may be determined by examining the records of the prior convictions.” (Black, supra, 41 Cal.4th at p. 819; see also People v. McGee (2006) 38 Cal.4th 682, 700-709.) The facts that defendant was on probation at the time of the current offense and that his performance on probation was unsatisfactory are both facts which arise out of the fact of a prior conviction and which may be determined merely by reference to the record of the prior conviction, which shows that defendant’s probation was revoked. They are therefore so closely related to the fact of the prior conviction that they come within that exception to the Apprendi/Blakely rule.
Whether unsatisfactory performance on probation or parole falls within the prior conviction exception is now under review in several cases, including People v. Towne, review granted July 14, 2004, S125677. Black remains the governing authority on this issue, however. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, even if a jury finding were required, the error would be harmless. If a reviewing court concludes, beyond a reasonable doubt, that if the question of the existence of an aggravating circumstance had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence, the error in not submitting the issue to the jury is harmless. (Sandoval, supra, 41 Cal.4th at p. 838.) Here, given the clarity of the record which shows that defendant’s probation was revoked, we can say beyond a reasonable doubt that the jury would have found it true that defendant’s performance on probation was unsatisfactory.
The same cannot be said as to the other aggravating factor. It is not clear what facts the court relied upon the determine that “the crimes” showed planning, sophistication or professionalism. Certainly, the crimes of resisting an officer showed none of those attributes, and possession of a firearm by a felon is not a crime which appears to lend itself to planning, sophistication or professionalism—a felon either possesses a gun, or he does not. It is not readily apparent to us that there is any evidence which supports the conclusion that defendant acted with professionalism or sophistication with respect to the charge of possession of marijuana for sale, and we therefore cannot say beyond a reasonable doubt that the jury would have found that circumstance to be true if the issue had been submitted to the jury. (Sandoval, supra, 41 Cal.4th at pp. 839-843.) Nevertheless, the error can be found harmless and the aggravated sentence upheld because there is one aggravating circumstance that the jury would have found true if the issue had been submitted to the jury, i.e., defendant’s unsatisfactory performance on probation. (Id. at p. 839.) Defendant does not contend that the trial court would not have imposed the upper term if it were relying solely on that circumstance, and we see no indication in the record that the court would not have done so. Remand for resentencing is therefore unnecessary.
DEFENDANT HAS FAILED SHOW THAT TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
As a general rule, evidence of a defendant’s poverty may not be introduced for the purpose of establishing a motive for theft or robbery. (See People v. Cornwell (2005) 37 Cal.4th 50, 96-97; People v. Koontz (2002) 27 Cal.4th 1041, 1076.) In his supplemental opening brief, defendant argues by analogy that evidence of his unemployment should not have been admitted to establish a financial motive for possessing marijuana for sale. He asserts that his attorney provided ineffective assistance, in violation of his right to counsel under the state and federal Constitutions, because he failed to object to evidence that defendant was unemployed. As he points out, the prosecutor made the following statement in his rebuttal argument: “What motive would [defendant] have to sell marijuana? Well, he doesn’t have a job, but he’s got cash. So selling marijuana certainly would let him have the cash that he needs to live the lifestyle he wants.” Defense counsel did not object.
Even assuming that the evidence of defendant’s unemployment was objectionable, defendant has failed to meet his burden of establishing prejudice. To prevail on a claim of ineffective assistance of counsel, the defendant must not only show an unprofessional error but also that there is a reasonable probability that the outcome of the trial would have been more favorable in the absence of the error. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Here, the evidence showed that defendant possessed a large amount of marijuana, far in excess of the amount one would expect to find if it were possessed solely for personal use: Two of the 10 baggies found contained a total of approximately 13 ounces of marijuana. There is no evidence as to how much marijuana the remaining eight bags contained. The marijuana was also packaged partly in large, freezer-sized bags and partly in smaller baggies, as though it was being taken from the larger bags and packaged for sale in the smaller bags. There were also empty smaller bags, indicating that they were intended to be used as packaging for future sales. The presence of scales tended to indicate possession for sale, as “casual marijuana smokers don’t weigh” their marijuana. And, the search apparently revealed no paraphernalia for smoking marijuana. The presence of cash—$170 in the bedroom where the marijuana was found and $130 on defendant’s person—was merely one more item of circumstantial evidence tending to show that defendant was engaged in sales, particularly in light of his lack of another source of income. It is not reasonably probable that defendant would have been acquitted of possession for sale but for the evidence of his unemployment.
One baggie contained 78.36 grams, or slightly less than three ounces; the other contained 288.86 grams, or just over 10 ounces. ( [as of Aug. 14, 2008].)
DISPOSITION
The judgment is reversed with respect to the imposition of unstayed sentences on both count 4 and count 5. The cause is remanded to the trial court for resentencing, with directions to stay imposition of sentence on either count 4 or count 5. The court is further directed to issue an amended abstract of judgment and provide a copy of the amended abstract to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
We concur: Hollenhorst Acting P.J. Richli J.