Opinion
H045628
08-26-2020
THE PEOPLE, Plaintiff and Respondent, v. FORREST LEIGHTON BROWNTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16CR08648)
Defendant Forrest Leighton Brownton was convicted by a jury of possessing heroin for sale, possessing methamphetamine for sale, and bringing methamphetamine and heroin into a penal institution. Defendant argues on appeal that: two of the three convictions must be stayed under Penal Code section 654; a condition of mandatory supervision authorizing warrantless searches of his electronic devices is unconstitutionally overbroad; and the trial court failed to specify which prior conviction was the basis for a one-year prior prison term enhancement. Defendant also requests that we independently review the sealed proceedings in the trial court related to his motion for access to the arresting officer's personnel file (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)). For the reasons stated here, we will conditionally reverse the judgment for two reasons: the trial court erred in its resolution of the Pitchess motion; and one of defendant's prior convictions that formed the basis for a prior prison term enhancement may have been redesignated as a misdemeanor before defendant was sentenced.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by information with possessing heroin for sale (Health & Saf. Code, § 11351), including an allegation that he possessed over 14.25 grams of heroin (Pen. Code, § 1203.07, subd. (a)(1)); possessing methamphetamine for sale (Health & Saf. Code, § 11378); and bringing both heroin and methamphetamine into a penal institution (Pen. Code, § 4573). The information alleged defendant had served six prior prison terms (Pen. Code, § 667.5, subd. (b)). (Unspecified statutory references are to the Penal Code.)
A. TRIAL EVIDENCE
A police officer was dispatched to a call in Santa Cruz one afternoon in June 2016. Upon arriving on the scene the officer recognized defendant from previous interactions. The officer learned from dispatch that defendant was subject to warrantless search as a term of probation or mandatory supervision. The officer searched defendant and found a cell phone and a wallet. The wallet contained over $700 in cash, numerous gift cards, and an EBT card with the owner's name scratched off. The officer instructed defendant to remove his pants for inspection. Defendant complied, and the officer found a plastic baggie in a compartment on the inside of the fly area. The plastic baggie contained a crystalline substance later determined to be methamphetamine. The gross weight of the baggie and methamphetamine was 2.3 grams. The officer did not find any drug paraphernalia suggesting personal use, and defendant did not appear to the officer to be under the influence of any controlled substance. (Defendant sought disclosure of information from the arresting officer's personnel file by Pitchess motion, which we will discuss in Part II.B.)
The officer arrested defendant and drove him to the county jail. The officer testified that he usually admonishes suspects that bringing contraband into the jail is illegal, though he could not recall whether he advised defendant on that particular day. Defendant was booked and taken to a shower area where he was directed to remove all of his clothing for a visual intake search. When defendant removed his underwear, a deputy sheriff working as a correctional officer noticed two bindles wrapped in paper, which the deputy handed to the arresting officer. One contained 14.3 net grams of heroin, and the other contained over seven grams of methamphetamine. Defendant fainted after the intake search.
The arresting officer testified about several text messages recovered in a forensic search of defendant's cell phone which the officer believed related to drug sales. The messages were all sent or received within the three months preceding defendant's arrest. An incoming message read: " 'Hey, it's Jimbo. If you can, could you come to the west side New Leaf? I'm at work and sic. Have $40.' " The officer opined that "sic" might be referring to being sick from heroin withdrawal. Another incoming message read: " 'Need daytime too.' " The officer explained that "daytime" is a nickname for methamphetamine. A third incoming message asked: " 'Do you have a good price on q?' " The officer believed this was referring to a quarter ounce of something. Outgoing messages from defendant's phone included: " 'I really need a new batch of night. Every body misses the good stuff we had' "; and " 'I have the money from the day, but I can't move the night. Please tell me you got a new batch.' " The officer opined that "night" was a slang term for heroin. Other incoming messages sought "night" or "day," and some requested both.
Defendant testified on his own behalf. He admitted multiple prior convictions, and acknowledged being on mandatory supervision at the time of his arrest for the current drug offenses. He testified that he had injected heroin into his arm or leg muscle just before the arresting officer arrived, and that he did not feel the effects of the heroin until he had been arrested and was in the police car. He testified that his recollection was hazy between the time he arrived at the jail and when he woke up in the hospital after fainting. He acknowledged that the cellular phone from which the text messages were recovered was his, but claimed he had purchased it from someone else and that he had allowed his friends to use it.
B. VERDICT AND SENTENCING
The jury found defendant guilty as charged, and found true the allegation that he possessed over 14.25 grams of heroin. The court found four of the six prior prison term allegations true after a separate court trial (in which the prosecutor elected to proceed on only the first four convictions included in the information). The trial court imposed a split sentence of five years eight months, with the first three years to be served in county jail and the remaining two years eight months to be spent under mandatory supervision. (§ 1170, subd. (h)(5).) The sentence was calculated as follows: the middle term of three years for possessing heroin for sale (Health & Saf. Code, § 11351); eight months for possessing methamphetamine for sale (§ 1170.1, subd. (a); Health & Saf. Code, § 11378); one year for bringing methamphetamine and heroin into a penal institution (§§ 4573; 1170.1, subd. (a)); and one year for one prior prison term (§ 667.5, subd. (b)). The trial court stayed sentence on the remaining three prior prison term enhancements. As a condition of future mandatory supervision, the trial court required defendant to: "Submit person, vehicle, residence, and articles under your dominion and control to search and seizure at any time of the day or night by a peace officer, with or without a warrant for: controlled substances, paraphernalia, indicia of drug sales, and electronic devices (provide pass/lock codes for search)." The court elaborated orally at sentencing that an electronic device includes "anything with electronic storage, phone, cell phone, smartphone, computer storage, memory devices of any sort."
II. DISCUSSION
A. MULTIPLE PUNISHMENT
Defendant argues that punishment for two of his three convictions must be stayed under section 654, contending that separate punishment cannot be imposed for the simultaneous possession of multiple controlled substances. He also argues he cannot be separately punished for bringing drugs into the jail because it was based on the same possessory act that formed the basis for his convictions for possessing heroin and methamphetamine for sale. Despite defendant's failure to raise the objection at sentencing, a sentence that violates section 654 is unauthorized and therefore reviewable in the first instance on appeal. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.)
Section 654, subdivision (a) provides: "An 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." The starting point of a section 654 analysis is to determine whether the "different crimes were completed by a 'single physical act.' " (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) If so, section 654 prohibits multiple punishment regardless of a defendant's intent and objective. "Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives." (Corpening, at p. 311.) When the facts are undisputed, the application of section 654 raises a question of law we review de novo. (Corpening, at p. 312.) On contested facts, whether a defendant had multiple objectives presents a question of fact for the trial court, whose determination will be upheld on appeal if supported by substantial evidence. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713 (Monarrez).)
1. Possessing Two Controlled Substances is Separately Punishable
Defendant contends his possession of different controlled substances for sale implicates section 654 in two ways: possessing multiple controlled substances for sale is a single act (possession) with a single intent (to sell drugs). But as defendant himself acknowledges, appellate courts have consistently decided that section 654 does not proscribe multiple punishment in situations where a defendant is convicted of possessing or transporting two different controlled substances for sale. (See People v. Barger (1974) 40 Cal.App.3d 662, 672 ["California courts have uniformly held that section 654 does not preclude multiple punishment for simultaneous possession of various narcotic drugs."]; Monarrez, supra, 66 Cal.App.4th at pp. 713-715 [separate punishment for possessing two different controlled substances for sale]; People v. Buchanan (2016) 248 Cal.App.4th 603, 612 [separate punishment for transporting heroin and methamphetamine for sale].)
Although defendant acknowledges California courts have consistently rejected the argument that possessing two controlled substances is a single act (citing People v. Mandell (1949) 90 Cal.App.2d 93), he contends more recent Supreme Court authorities cast doubt on those established cases. He compares his case to Supreme Court cases involving a single physical act that satisfied the actus reus for two different crimes. (Citing People v. Jones (2012) 54 Cal.4th 350, 358-359 (Jones) [possessing and carrying the same firearm was not separately punishable].) But the Jones holding does not apply to defendant's case. Possessing heroin for sale cannot satisfy the actus reus of possessing methamphetamine for sale; the type of controlled substance and a defendant's awareness of it matters. Indeed, in explaining how to determine whether conduct is a single act, the Jones court adopted the reasoning from Justice Traynor's dissent in a case Jones overruled: " 'possession of one item is not essential to the possession of another separate item. One does not possess in the abstract; possession is meaningless unless something is possessed. The possession of each separate item is therefore a separate act of possession.' " (Jones, at p. 358.)
Defendant also contends he harbored only one intent and objective despite possessing two substances: "there was but one intent - the intent is to sell." Here again, defendant oversimplifies the analysis. Substantial evidence supports the conclusion that defendant had multiple objectives in possessing two different controlled substances: by having more than one controlled substance for sale, defendant was able to expand his pool of customers beyond those seeking only one type. The text messages on defendant's cell phone showed that while some individuals requested both methamphetamine and heroin, others asked for only "day" or "night." Defendant argues "the possession for sale of two different controlled substances itself does not appreciably increase the societal harm." He contends that because the market for those crimes already existed, "[i]f his tiny piece of that market was just a tiny bit larger because he possessed two different kinds of drugs, the community was not any worse off because of it." But we agree with the Monarrez court that "different drugs have different effects and pose different dangers to society" such that the possibility of separate punishment is warranted. (Monarrez, supra, 66 Cal.App.4th at p. 715.) And the fact that multiple customers were seeking controlled substances from defendant distinguishes this case from In re Adams (1975) 14 Cal.3d 629, where the evidence showed Adams transported a variety of drugs but with the single intent and objective of delivering them to one individual. (Id. at p. 635.)
2. Bringing Drugs Into Jail is Separately Punishable
Defendant contends he cannot be separately punished for both possessing controlled substances for sale and bringing the same controlled substances into the jail because it "was the same possession—committed at the same time, by the same person—that constituted the actus reus of all three crimes." But the culpable act of bringing a controlled substance into jail involves more than possession alone. Section 4573 requires defendant not only to knowingly possess a controlled substance but also to bring the substance across the jail threshold. Defendant's acts of possessing heroin and possessing methamphetamine began well before the distinct act of bringing those substances into the jail, as demonstrated by the officer's recovery of some of the methamphetamine during the field search. Defendant had the opportunity after his arrest to surrender the drugs before committing the act of entering the jail with them. Once he failed to do so, he became liable for a distinct crime that is separately punishable.
The "single physical act" authorities defendant cites are factually distinguishable. Jones involved a car search where an officer found an unregistered handgun. (Jones, supra, 54 Cal.4th at p. 352.) Jones was convicted of being a felon in possession of a firearm; carrying a concealed and unregistered firearm; and carrying an unregistered loaded firearm in public. The Supreme Court determined that on those facts section 654 allowed punishment for only one of the crimes because the "possession and the carrying were the same act, not two separate acts." (Jones, at p. 359.) Though defendant argues Jones supports his contention that there was "no distinction between the act of carrying and the act of possessing" the drugs, the crucial difference here is that section 4573 requires controlled substances to be not only carried but also carried into a penal institution. Defendant's possession of drugs for sale outside of the jail and his carrying the drugs into the jail took place at distinct times.
Defendant also cites Corpening, where the victims loaded their van with valuable coins they planned to sell at a swap meet. (Corpening, supra, 2 Cal.5th at p. 309.) As one victim was preparing to drive, a man approached with a gun and ordered the victim to get out of the van. The victim struggled as the man got in the van and started to drive away, resulting in the victim being dragged a distance before falling. (Ibid.) Corpening was an accomplice and pleaded guilty to, among other things, carjacking and robbery. (Id. at p. 310.) The trial court imposed punishment for both offenses. (Ibid.) The Supreme Court reversed, reasoning that the "forceful taking of [the victim's] van was a single physical act for purposes of section 654 because that act simultaneously accomplished the actus reus requirement" for both robbery ("the felonious taking of another's personal property by force") and carjacking ("the felonious taking of another's motor vehicle by force"). (Corpening, at p. 314-315.) Here again, Corpening is distinguishable because defendant's acts of possessing the two controlled substances were complete before the separate physical act of bringing those substances into the jail.
People v. Mesa (2012) 54 Cal.4th 191, also relied on by defendant, involved three shootings. For each shooting, Mesa was convicted of and sentenced for assault with a firearm (with a gang enhancement); possessing a firearm as a felon; and active gang participation. (Id. at pp. 194-195.) The Supreme Court determined that because the active gang participation convictions were based solely on the shootings that formed the basis for the assault and possession convictions, Mesa's "sentence for the gang crime violates section 654 because it punishes defendant a second time either for the assault with a firearm or for possession of a firearm by a felon." (Mesa, at p. 197.) Mesa is factually dissimilar because, unlike each shooting, defendant's case involved multiple distinct acts.
There was no error in sentencing defendant on all counts.
B. PITCHESS MOTION
Defendant requests that we independently review the trial court's resolution of his Pitchess motion. The People acknowledge that defendant is "entitled to this court's independent review of the transcript of the trial court's in camera hearing on the Pitchess motion."
Defendant moved under Pitchess for disclosure of any complaints related to the arresting officer. The prosecution conceded in its written opposition that defendant had made a prima facie showing of good cause sufficient to require a Pitchess hearing, at least as to possible false reports by the arresting officer. At the Pitchess hearing (which we summarize here without disclosing any confidential information), the custodian of records for the Santa Cruz Police Department testified that there were no records relevant to defendant's request. But when the court asked which files the custodian brought to court from the officer's personnel file, the custodian stated he had no records with him whatsoever. The trial court denied the motion without requiring the custodian to present the file, demonstrating the court did not itself review any records.
"A criminal defendant, on a showing of good cause, is entitled to discovery of information in the confidential personnel records of a peace officer when that information is relevant to defend against a criminal charge." (People v. Gaines (2009) 46 Cal.4th 172, 176 (Gaines).) "If the defendant establishes good cause, the [trial] court must review the requested records in camera to determine what information, if any, should be disclosed." (Id. at p. 179.) "[W]hen a trial court has failed to review the Pitchess documents at all, it is appropriate to remand the case to permit the trial court to review the requested documents in chambers and to issue a discovery order, if warranted." (Gaines, at pp. 180-181.)
Gaines and other Supreme Court authorities make clear that on a showing of good cause the trial court must review an officer's personnel records in camera. Here, the trial court's acceptance of a representation by the police department's custodian of records without actually reviewing the file did not satisfy that duty. The remedy for this violation of the Pitchess procedure is to conditionally reverse the judgment to allow the trial court to review the records. (See Gaines, supra, 46 Cal.4th at p. 180.)
C. MANDATORY SUPERVISION CONDITION RELATED TO ELECTRONIC DEVICES
Defendant argues the condition of mandatory supervision subjecting electronic devices in his possession to warrantless search infringes his Fourth Amendment right to be free from unreasonable searches, and is also unconstitutionally overbroad because it is not closely tailored to its purpose.
"[P]arolees and probationers retain some expectation of privacy, albeit a reduced one." (In re Jaime P. (2006) 40 Cal.4th 128, 137.) And "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." (Samson v. California (2006) 547 U.S. 843, 850 [finding California law subjecting all parolees to warrantless searches did not violate the Fourth Amendment].) The California Supreme Court has determined that "probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers." (People v. Robles (2000) 23 Cal.4th 789, 795.) The concept applies with full force to similar mandatory supervision conditions given that individuals under mandatory supervision have a lower expectation of privacy than probationers.
While defendant retains some expectation of privacy, that expectation is greatly diminished until he completes his term of mandatory supervision. That diminished expectation of privacy is markedly different from the broader privacy rights guaranteed under the Fourth Amendment to individuals who are not serving sentences or on grants of probation or parole. It is that pre-conviction expectation of privacy that was at issue in Riley v. California (2014) 573 U.S. 373 (Riley), where the United States Supreme Court announced the general rule that police may not conduct a warrantless search of a cellular phone seized incident to an arrest. (Id. at p. 386.)
It is undisputed that there were incoming and outgoing text messages on defendant's cell phone indicating drug sales. The purpose of the challenged conditions is to prevent defendant from using electronic devices in the future to buy or sell controlled substances. Defendant's use of an electronic device in committing two of the conviction offenses, as well as his status equivalent to parole rather than probation, distinguish this case from those where similar probation conditions have been rejected as unconstitutionally overbroad. (See In re P.O. (2016) 246 Cal.App.4th 288, 291-293, 298 [modifying juvenile probation condition because search of electronic devices bore no relationship to public intoxication adjudication].) Robust access to defendant's electronic devices is critical to ensure that he does not commit similar crimes while on mandatory supervision.
D. PRIOR PRISON TERMS
Defendant argues the trial court failed to specify which prior conviction was the basis for the prior prison term enhancement it imposed, and that one of the convictions may have been redesignated as a misdemeanor under Proposition 47.
At the court trial on the prior prison term allegations, the prosecutor elected to proceed on only the first four on a list of six prior convictions alleged in the information. Defense counsel argued that the final three prior convictions of the six listed (only one of which was then being tried) had been redesignated under Proposition 47, and those three convictions were now misdemeanors and could not qualify as prior prison terms. The court nonetheless found true four prior prison term allegations. At sentencing, the probation report noted one felony conviction found true as a prior prison term had been "Reduced to [a] misdemeanor per Prop. 47." (The report references case No. F19653 instead of F09653, but the conviction dates are the same.) The trial court imposed a one-year enhancement for one prior prison term and stayed the remaining three.
The Supreme Court decided in People v. Buycks (2018) 5 Cal.5th 857 that "Proposition 47's mandate that the resentenced or redesignated offense 'be considered a misdemeanor for all purposes' (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 ... enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors." (Buycks, at p. 871.) The remedy for an erroneously imposed prior prison term enhancement is to strike it. (Id. at p. 896.) That decision applies to individuals, like defendant, whose judgments are not final. (Id. at pp. 882-883; citing In re Estrada (1965) 63 Cal.2d 740, 745.) Relying on that authority, defendant argues the matter should be remanded to allow him to "present documentation to the court establishing the redesignation of the last three offenses from felonies to misdemeanors" and that if the one-year enhancement was imposed for a redesignated offense, defendant's "sentence should be reduced by one year."
Although the probation report suggests one of the four relevant felony convictions had been redesignated as a misdemeanor, defendant appears to acknowledge that prior convictions are not automatically redesignated under Proposition 47 (defendants have to petition for redesignation), and nothing in the record affirmatively demonstrates that any of his offenses have been redesignated. Judicial economy favors allowing defendant to provide evidence on this issue on remand. Even if one of the prior prison terms must be stricken, however, the trial court may still impose a one-year enhancement based on one of the three remaining prison priors. (See Buycks, supra, 5 Cal.5th at p. 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].)
III. DISPOSITION
The judgment is conditionally reversed and the matter remanded for two purposes: (1) for the trial court to conduct a proper Pitchess review; and (2) to allow the defendant to present evidence that the offense underlying one of his prior prison terms has been redesignated as a misdemeanor, such that one of the four terms found true must be stricken.
If the trial court's Pitchess inspection reveals no relevant information, the trial court shall reinstate the judgment of conviction and sentence (with the exception of possibly striking one prior prison term enhancement). If the Pitchess inspection reveals relevant information, the trial court shall order appropriate disclosure, allow defendant an opportunity to show prejudice, and order a new trial if defendant demonstrates a reasonable probability of a more favorable outcome had the information been previously disclosed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Danner, J.