Opinion
C084119
11-15-2019
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY STUART LAWHORN, Defendant and Appellant.
MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
Appellant filed a petition for rehearing with this court. It is hereby ordered that the petition for rehearing is denied.
It is also ordered that the opinion filed herein on November 15, 2019, be modified as follows:
1. Footnote 3 at the end of last full sentence on page 3 is deleted.
This modification does not change the judgment. FOR THE COURT: /s/_________
Duarte, Acting P. J. /s/_________
Renner, J. /s/_________
Krause, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCYKCRF20159552)
Defendant Jeffrey Stuart Lawhorn appeals from his conviction for possessing methamphetamine for sale (two counts), maintaining a place, utilizing a fortified space, and intercepting public safety communications. He contends: 1) the trial court entered a valid judgment of acquittal as to the utilizing a fortified space count (count 4); 2) insufficient evidence supports his conviction on that count; 3) insufficient evidence supports his conviction for intercepting a public safety communication (count 5); 4) the trial court misapplied Penal Code section 654; and 5) the three-year enhancement for a prior drug conviction must be stricken.
Undesignated statutory references are to the Penal Code.
We agree that the trial court entered a valid judgment of acquittal regarding the fortified space count, substantial evidence does not support the conviction for intercepting a public safety communication, and the prior enhancement must be stricken. Accordingly, we reverse the judgment of conviction as to counts 4 and 5, strike the enhancement, and vacate the resulting sentences. Further, our review of the record reveals that the trial court failed to orally award custody credits at sentencing. We remand for full resentencing, including pronouncement of custody credit.
FACTUAL AND PROCEDURAL BACKGROUND
On July 9, 2015, police officers searched defendant's residence in Yreka. Defendant and codefendant Amanda Wilson, who was asleep on the couch, were present during the search. Next to Wilson was a small pouch containing a glass pipe and a straw; items associated with methamphetamine use. On the property officers found over a pound of methamphetamine, a digital scale, a ledger sheet, and over a thousand small plastic bags (packaging for methamphetamine sales). A monitor inside the residence displayed video feeds from security cameras mounted on the exterior. Officers also found a police scanner on a desk and a list of 10 common law enforcement codes on a nearby wall. The scanner was on, and the digital readout on the scanner was activated.
After searching the Yreka residence, officers searched the garage at defendant's parents' residence in Hornbrook. In the garage they found a storage cabinet with a safe attached to the bottom rack. They opened the safe using a code obtained through a recorded conversation between defendant and defendant's father. The safe contained cash, documents bearing defendant's name, and two one-gallon bags of methamphetamine weighing about four pounds total. The police also found containers and digital scales covered with methamphetamine residue in a desk. The packaging found at the two residences was indistinguishable, and the methamphetamine appeared to have been packaged by the same person.
An officer testified that the safe was "attached" to the storage racks, but he did not know "if it was welded or bolted."
A jury found defendant guilty of possessing for sale methamphetamine at the Yreka residence (Health & Saf. Code, § 11378; count 1), maintaining a place for selling or using methamphetamine (id., § 11366; count 2), possessing for sale methamphetamine at the Hornbrook residence (id., § 11378; count 3) in an amount more than one kilogram (id., § 11370.4, subd. (b); enhancement count 3), utilizing a building, room, space, or enclosure specifically designed to suppress law enforcement entry in order to sell, manufacture, or possess for sale methamphetamine (id., § 11366.6; count 4), and prohibited interception of public safety communications (Pen. Code, § 636.5; count 5).
In bifurcated proceedings, the trial court found defendant was previously convicted of two prior controlled substance offenses, including a violation of Health and Safety Code section 11379, defendant was previously convicted of three prior strikes (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and defendant had served a prior prison term (id., § 667.5, subd. (b)).
The trial court sentenced defendant to the upper term of three years on count 3, doubled to six years due to defendant's prior strike. The court imposed a consecutive term of three years for defendant's prior conviction for violating Health and Safety Code section 11379 and consecutive terms of eight months, doubled to 16 months, for count 1, and 16 months, doubled to 32 months, for count 4. The court also imposed a consecutive term of one year for the prison prior pursuant to Penal Code section 667.5, subdivision (b) and a concurrent term of six years for count 2. For count 5, the court imposed 180 days in jail to be served concurrent to the prison term. In total, the court sentenced defendant to 17 years in prison.
The trial court sentenced defendant as a single striker despite the finding he had three strikes and despite the court's denial of his Romero motion. This sentencing decision was evidently intended to atone for an error the court made during jury selection. A defendant charged with a crime punishable by life in prison is entitled to 20 peremptory challenges (Code Civ. Proc., § 231); here the court allotted him only 10. After the error--not raised as an issue on appeal--was brought to the court's attention, it did not analyze the effect of its error (see People v. Black (2014) 58 Cal.4th 912, 918 [setting forth factors to consider when determining whether allocating a defendant too few preemptory strikes is prejudicial error]), but instead sentenced defendant as a single striker "in an abundance of caution." This was not an appropriate remedy for the error. Further, the court did not dismiss the remaining strikes; they are still outstanding.
Additional facts will be set out in the Discussion as needed.
DISCUSSION
I
Judgment of Acquittal as to Count 4
Defendant argues that the trial court entered a valid judgment of acquittal as to count 4--utilizing a fortified space--and therefore lacked jurisdiction to sentence him as to that count. We agree.
A. Background
After the prosecution concluded its case in chief, defendant orally moved for judgment of acquittal on count 4 under section 1118.1, arguing that the prosecution failed to prove the elements of that charge. After taking a recess to review the authorities, and explaining its justification, the court stated, "So I'm going to grant the motion as to Count 4. [¶] So Counsel, going on from there . . . ." The prosecutor interrupted the court and stated, "I'm sorry, your Honor. [¶] Can I maybe try to persuade you to reconsider?" After additional argument the court reversed itself, stating, "we are going to go ahead and complete the case. I'm going to give both counsel an opportunity to review and argue. [¶] I am uncomfortable with jumping into this with so little that I will state that this is an intended decision at this point. You now both know what my concerns are. I will have the opportunity to think about it more. This will be one of those matters that we discuss when we go into jury instructions."
Section 1118.1 provides in relevant part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
When discussing jury instructions, the court stated, "And for the record because we have not made it clear, the Court indicated off the record that it was going to deny the 1118.1 motion with regard to count four and I gave that information to counsel in chambers just to give them the opportunity then, [defense counsel], to digest that and come up with argument." The court then denied defendant's section 1118.1 motion.
B. Analysis
When a trial court unequivocally grants a defendant's motion under section 1118.1, the order is final and may not be reconsidered--even when the order was legally erroneous--except to correct "purely clerical errors." (People v. Garcia (1985) 166 Cal.App.3d 1056, 1067, 1069.) "A judgment of acquittal under section 1118.1 is deemed entered as of the moment the court orally grants a defendant's motion for acquittal. [Citation.]" (People v. Azevedo (1984) 161 Cal.App.3d 235, 244, disapproved on other grounds by People v. King (2006) 38 Cal.4th 617.)
In People v. Moran (1973) 33 Cal.App.3d 724, the trial court granted the defendant's motion for acquittal on one count under section 1118.1 and granted the People's motion later in the trial to vacate that order. (Moran, at p. 727.) The appellate court observed that the grant of the section 1118.1 motion was "in effect, an 'order [for] the entry of a judgment of acquittal' as to each of those counts. ([]§ 1118.1.) Therefore, since '[the] rendition of judgment is the oral pronouncement' [citation], and since '[a] judgment of acquittal entered pursuant to the provisions of Section . . . 1118.1 . . . is a bar to any other prosecution for the same offense' ([] § 1118.2), defendant's conviction as to [the relevant count] must be set aside." (Moran, at p. 728.)
We see no difference between the trial court's actions in Moran and the trial court's actions here. While the trial court vacated its ruling in Moran "[l]ater in the trial" (Moran, supra, 33 Cal.App.3d at p. 727), nonetheless the court reconsidered its ruling after it had unequivocally granted defendant's motion on the record. Here, the trial court unequivocally granted defendant's motion for judgment of acquittal by stating, "So I'm going to grant the motion as to Count 4." The court then began moving on to the next issue when the prosecution interrupted and requested the opportunity to "persuade [the court] to reconsider." (Italics added.) In other words, with the understanding that the court had granted defendant's motion, the prosecutor requested that the court vacate its ruling and reinstate criminal proceedings against defendant, whom the court had just acquitted as to count 4.
Once the court entered the judgment of acquittal, the double jeopardy clause barred further proceedings on that charge. (See Smith v. Massachusetts (2005) 543 U.S. 462, 466-467, 473-474 [double jeopardy clause "prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict"].) The double jeopardy bar is in effect even if the court's order was legally erroneous. (Sanabria v. United States (1978) 437 U.S. 54, 64 ["when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous"].)
The trial court thoughtfully considered defendant's motion for judgment of acquittal and unequivocally granted the motion. A judgment of acquittal having already been entered as to count 4, we reverse the subsequent judgment of conviction.
Defendant argues that there is insufficient evidence to support his conviction for count 4 and that the court erred by not staying the sentence for that conviction pursuant to section 654. Because we conclude the trial court acquitted defendant on that count, we do not reach those additional claims.
II
Sufficiency of the Evidence of Intercepting a Public Safety Communication
Defendant next claims that there was insufficient evidence presented at trial to support his conviction for prohibited interception of a public safety communication to assist in the commission of a criminal offense or to avoid or escape arrest. We agree.
To assess the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence to support the verdict--i.e., evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.) "The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]" (People v. Vazquez (2009) 178 Cal.App.4th 347, 352.) "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.]" (People v. Farnam (2002) 28 Cal.4th 107, 143.) We do not reweigh evidence or reevaluate a witness's credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The jury found defendant guilty of violating section 636.5, which provides: "Any person not authorized by the sender, who intercepts any public safety radio service communication, by use of a scanner or any other means, for the purpose of using that communication to assist in the commission of a criminal offense or to avoid or escape arrest, trial, conviction, or punishment or who divulges to any person he or she knows to be a suspect in the commission of any criminal offense, the existence, contents, substance, purport, effect or meaning of that communication concerning the offense with the intent that the suspect may avoid or escape from arrest, trial, conviction, or punishment is guilty of a misdemeanor."
We agree with defendant that insufficient evidence supported his conviction. The evidence established that there was a police scanner at the Yreka residence, which was turned on. A list of common law enforcement codes was found on the wall next to the scanner. The digital readout on the scanner was activated. But no evidence showed that defendant had actually intercepted or even had been in the position to immediately intercept any public safety communications. No evidence showed that the scanner was tuned such that it would have intercepted public safety radio communications. While the People argue that defendant engaged in countersurveillance techniques and utilized security cameras on his property, those facts are not substantial evidence that he intercepted communications as required to violate the charged statute. The finding that defendant had intercepted a public safety communication was entirely speculative. We reverse the conviction for count 5.
III
Health and Safety Code Section 11370.2, Subdivision (c)
Defendant contends that the 2018 amendment to Health and Safety Code section 11370.2, subdivision (c) is retroactive, and therefore defendant's consecutive term of three years for a prior drug offense conviction should be stricken. The People properly concede the issue.
In 2017 the Legislature amended Health and Safety Code section 11370.2, subdivision (c) by eliminating enhancements for prior convictions for violations of section 11379. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.) In other words, defendant's prior felony conviction for violating Health and Safety Code section 11379 would no longer support the imposition of the three-year enhancement under Health and Safety Code section 11370.2, subdivision (c).
As both parties acknowledge, the amendment to Health and Safety Code section 11370.2 is retroactive and applies to cases like defendant's which are still on appeal and not yet final. (People v. Millan (2018) 20 Cal.App.5th 450, 455-456; see also In re Estrada (1965) 63 Cal.2d 740, 744.) The appropriate remedy is to strike the enhancement and remand for resentencing. (Millan, at p. 456.)
IV
Custody Credits
The abstract of judgment reflects that defendant was awarded 1,160 total days of custody credit, including 580 actual days and 580 conduct credits. But the trial court did not orally award those custody credits on the record. A sentence that fails to award the legally mandated custody credits is unauthorized and may be corrected whenever discovered. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
As we describe immediately below, we must remand for full resentencing. We direct the trial court to orally award custody credit at the resentencing hearing.
V
Remand
We remand this matter for a full resentencing. "[W]hen 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.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) The trial court has jurisdiction to modify every aspect of the sentence on the counts that were affirmed. (Ibid.) " ' "This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The validity of one component infects the entire scheme." ' [Citations.]" (People v. Hubbard (2018) 27 Cal.App.5th 9, 13.)
On remand, the trial court will have the opportunity to resentence defendant as appropriate given the remaining counts of conviction. The court must also address all of defendant's strikes on remand. The court must also address and orally award custody credit as appropriate.
Defendant argues that the sentence for count 1 must be stayed pursuant to section 654 because the conduct in counts 1 and 3 constitutes an indivisible course of conduct with a unified objective. Similarly, defendant argues the sentence for count 2 must be stayed. We remand for full resentencing and need not reach issues arising from the application (or non-application) of section 654. But we note that simultaneous possession of the same classification of controlled substances at different locations constitutes a single crime, for which a defendant cannot receive multiple convictions, let alone multiple sentences. (See People v. Schroeder (1968) 264 Cal.App.2d 217, 228 [simultaneous possession of narcotics of the same kind constitutes a single offense, which is technically different from considerations disfavoring imposition of multiple punishments upon crimes arising out of a single transaction under section 654]; People v. Harris (1977) 71 Cal.App.3d 959, 969-970 [defendant cannot be multiply convicted of simultaneous possession of a substance or its derivatives proscribed by only one subdivision].)
See section 667, subdivision (f)(1) ["Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has one or more prior serious or violent felony convictions"]; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 524 [a defendant who has a qualifying prior conviction must be sentenced under the three strikes law].
DISPOSITION
The judgment of conviction as to counts 4 and 5 is reversed. The three-year enhancement imposed under Health and Safety Code former section 11370.2, subdivision (c) is stricken. The resulting sentences are vacated. The matter is remanded to the trial court with directions to hold a full resentencing hearing in a manner consistent with this opinion, to include an oral award of custody credits. Following the hearing, the court should prepare a new abstract of judgment and provide a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Renner, J. /s/_________
Krause, J.