Opinion
D069831
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. RYAN MORRISON et al., Defendants and Appellants.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant Ryan Morrison. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Terry Hewitt. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT
It is ordered that the opinion filed herein on April 27, 2017 be modified as follows:
On page 6, in the second full paragraph, delete the following sentence:
DNA testing of the blood on the tote bag matched Morrison's DNA.
There is no change in judgment.
BENKE, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD262563) APPEAL from judgments of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed as modified, with directions. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant Ryan Morrison. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Terry Hewitt. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants and appellants Ryan Morrison and Terry Hewitt (sometimes collectively defendants) of first degree burglary (Pen. Code, § 459; count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2) and possession of heroin (Health & Saf. Code, § 11350, subd. (a); count 3). As to count 1, the jury further found that the burglary was of an inhabited dwelling house (Pen. Code, § 460) and that a person other than an accomplice was present during its commission (Pen. Code, § 667.5, subd. (c)(21)).
Morrison admitted a prison prior (§§ 667.5, subd. (b) & 668), a prior serious felony (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)), two strike priors (§§ 667, subds. (b)-(i), 1170.12 & 668)) and to being on felony probation when he committed the burglary as charged in count 1 (§ 1203, subd. (k)). The court sentenced Morrison to prison for an indeterminate term of 25 years to life on count 1; to a determinate term of six years on count 2, to run concurrent with count 1; and, after striking a prison prior, to a consecutive five-year term for the prior serious felony enhancement (i.e., the "nickel prior").
Hewitt admitted to three prison priors (Pen. Code, §§ 667.5, subd. (b) & 668), a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c), and to being on felony probation when he committed the burglary as charged in count 1 (Pen. Code, § 1203, subd. (k)). The court sentenced Hewitt to nine years in prison.
All further statutory references are to the Penal Code unless otherwise noted.
Hewitt contends that his burglary conviction must be reversed for lack of substantial evidence to show he entered the residence or actively aided and abetted codefendant Morrison's entry into the residence; that there was insufficient evidence he possessed methamphetamine for sale and/or possessed the heroin found in Morrison's car; and that the court erred in giving a flight instruction under CALCRIM No. 572 and in failing to give a unanimity instruction in connection with count 2.
Morrison separately contends there is insufficient evidence he possessed the methamphetamine for sale in count 2; that, in the alternative, the court erred in failing to give a unanimity instruction in connection with count 2, as Hewitt likewise contends; and that the court erred when it failed to treat his two strike priors as one strike and otherwise abused its discretion when it failed to strike one of his strike priors in furtherance of justice.
Morrison further contends his abstract of judgment should be corrected to show (1) his sentence on count 2 was to run concurrently with his indeterminate sentence on count 1; (2) the victim restitution of $2,500 was joint and several as to defendants; and (3) his sentence on count 2 was five years, as pronounced by the court at the sentencing hearing, and not 11 years as stated in the abstract of judgment.
As we explain, we conclude Morrison's abstract of judgment should be corrected to show that he was sentenced to a five-year term on count 2 to run concurrent with his indeterminate sentence on count 1 and that victim restitution was joint and several as to defendants. Although Hewitt did not raise the issue in his opening brief, we further conclude Hewitt's abstract of judgment should also be corrected to show victim restitution was joint and several, as pronounced by the court at his sentencing. In all other respects, we affirm the judgments of convictions.
FACTUAL OVERVIEW
We view the evidence in the light most favorable to the judgments of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to each of defendants' contentions of alleged error are discussed post.
Witness B.L. testified that she has lived in La Jolla, California for about 18 years, including on June 22, 2015, when her house located in a cul-de-sac was broken into while she was at home. On that day, B.L. also had a guest staying in her house, Veronica K.
On the day of the break-in, B.L. got up about 6:00 a.m. and called a friend to inquire if he needed a ride to a medical appointment. Shortly after B.L. hung up the phone, she heard what she described as a "big bang." Initially, B.L. believed the sound was the result of an earthquake. However, when she heard another loud bang, she realized it was the sound of glass shattering. B.L. in response opened her window and looked outside. She saw a glass door to her house broken and someone wearing what she described as a dark brown or black "cape" enter her daughter's bedroom. B.L. called 911. A tape recording of that call was played for the jury.
On the recording, B.L. described hearing noises in her daughter's room, which was located adjacent to her bedroom. Crying, B.L. whispered to the 911 operator that she was so scared she was shaking; that before she called 911, she heard a man at the glass door say, " 'My job is done' "; that she could hear voices having a "conversation" "inside the home," although she could not hear specific words being spoken; that she was "positive" she "heard more than one voice" coming from the inside the house; that she could hear "footsteps and movement" inside the house; and that shortly before police arrived, she heard a "screeching" noise inside the house, which caused her to be concerned for her guest Veronica, as it sounded like somebody was being "strangled, held, crying."
Once police contacted her, B.L. jumped from her bedroom window located over the garage. The officers caught B.L., who estimated her window was about 10 feet off the ground. Police escorted B.L. to the front of the house. B.L. then saw for the first time a silver car parked behind her garage that neither belonged to her nor her guest. On investigation, police determined the car was registered to Morrison.
Later, after the police had cleared the house, B.L. went back inside with police and saw the double-paned glass door in her daughter's room had been shattered by a rock, with glass covering the room. On investigation, police found blood droplets on the exterior and interior of the house, suggesting that someone was cut while entering the house through the broken glass door. Subsequent DNA testing by law enforcement showed the likelihood the DNA was from a person other than Morrison was one in 130 sextillion in the Caucasian population.
A sextillion is a one followed by 21 zeros.
B.L. testified the rock used to shatter the window came from an area just outside her daughter's door. An officer later noticed an indentation on the wall opposite the glass door that "matched the rock perfectly," suggesting the rock had been thrown with substantial force. B.L. also observed that a door near the kitchen/living room had been opened; that the bottom half of the door had been damaged as if someone had "kicked it"; that items had been "shattered" near there as well; and that a water pitcher she kept in the refrigerator was "splattered" on the living room floor. Upstairs, near where her guest Veronica was staying, B.L. also found that a closet had been "ransacked."
B.L. later identified several items taken from her house that police recovered from Morrison's car. This included art paint, a laptop computer, some cords for the computer, several keys to her house and a brown tote bag ostensibly for the laptop. B.L. noticed there was blood on the tote bag. DNA testing of the blood on the tote bag matched Morrison's DNA.
Witness Veronica testified she was staying in B.L.'s house on the morning of the break-in. About 6:00 a.m. that day, Veronica heard noises inside the house. Initially she heard footsteps, then a noise as if someone was "hitting at something." A short time later, a police officer called Veronica on her cell phone. The officer told Veronica to lock her bedroom door and hide.
San Diego Police Officer Phillip Worthington testified he and his partner responded about 6:03 a.m. to a dispatch of a "hot prowl res[idential] burg[lary]" at B.L.'s house. On arrival, Officer Worthington saw a dark "plastic bag" covering the rear license plate of a car parked in the driveway. He also observed a man inside the car, later identified as Morrison. Officer Worthington saw the man's left hand was bleeding profusely. A registered nurse, Officer Worthington took Morrison's pulse and found Morrison had an elevated heartrate. Officer Worthington observed Morrison's pupils were dilated and his eyes were "fluttering," both of which further suggested Morrison was under the influence of a controlled substance. Police later discovered in the car two bags of what appeared to be a controlled substance and a dark "bindle" they suspected contained heroin.
Subsequent analysis of the bindle by a criminalist showed it was in fact 3.2 grams of heroin. With respect to the two bags, testing on what the criminalist referred to as bag "A" was found to contain 23.85 grams of methamphetamine. Bag "B," which was found with bag "A" and contained what appeared to be the same crystalline substance, was not tested for methamphetamine. Bag "B" weighed 17.03 grams, which unlike bag "A," included the outer packaging. Finally, a third bag found in one of the backpacks belonging to Hewitt was tested and was found to contain 12.92 grams of methamphetamine.
Officer Worthington testified that, after other officers contacted the man in the car, he along with other officers went around back and contacted B.L. With the help of another officer, Officer Worthington caught B.L. when she jumped out of her bedroom window. Once B.L. was safe, police used canine units to search and clear the house. Shortly thereafter, police apprehended a man hiding in some bushes about a block away from B.L.'s house. The man was later identified as Hewitt.
Police recovered two backpacks in the immediate area where Hewitt had been found hiding. In one of the backpacks, police found a paper covered in what appeared to be "fresh" blood. Inside one of the backpacks, police found, as noted, a bag of a white crystalline substance. The bag was wrapped in a bloody towel. Police also found "several small plastic bags" in the backpacks. Officer Worthington opined the small bags were "commonly found on people who sell controlled substances," as they take a quantity of the drug stored in a large bag and "compartmentalize" the drug into smaller bags for sale. DNA testing of blood on one of the baggies and the bloody towel matched the DNA of Morrison.
On Hewitt, police found an iPod, two cell phones and a pair of "black and blue mechanic[-]type work gloves" that, based on his training and experience, Officer Worthington opined were frequently used by individuals to "break[] into houses and cars." Officer Worthington testified that one of the phones found on Hewitt was an actual working phone. When Officer Worthington examined the other phone, he found it had a false cover. When he opened it, Officer Worthington found a "mini digital scale" with a white crystalline substance on it.
Officer Worthington participated in the search of the silver car. Inside the car, officers found items belonging to B.L., as noted. Officers also found inside the car four wigs; a "red" mask," a "white knitted" mask, a black "ski mask" and a "gas mask"; a "hatchet"; a black bag containing two smaller bags with a "large amount" of a "crystalline substance" and a "black tarry substance"; a credit card inside of Morrison's wallet belonging to "Dasia Dunn" along with about $590 in cash; two flashlights; some "bloody money" on the front passenger seat; dark clothing; a small guitar and clarinet; bolt cutters; and a security badge, among other items.
San Diego Police Officer Brett Crawford and his partner also responded to the call. Officer Crawford activated his body camera before contacting any suspects. A three-minute clip of the video from that camera was played for the jury.
Officer Crawford testified and the video showed that as he approached the house, he came upon a silver car; that a car door was open; and that based on the shadows of the rear window of the car, it appeared to Officer Crawford that a subject was sitting in the right front passenger seat inside the car. The subject was later identified as Morrison. Officer Crawford noticed the rear license plate to the car was concealed by a plastic bag.
Officer Crawford contacted B.L., who confirmed she heard two male voices inside her house. B.L. also told Officer Crawford she had a guest in the house. Officer Crawford called the guest (i.e., Veronica) on her cellphone and instructed her to lock the door and stay inside her room.
About 30 minutes after arriving at the scene, medical responders, who had been dispatched to treat Morrison for his hand laceration, contacted Officer Crawford. The medical responders reported that while they were treating Morrison, they saw a male laying in some bushes about two houses down the street. The man appeared unresponsive. Officer Crawford along with other officers approached the bushes and saw the man later identified as Hewitt. The man followed the commands of the officers.
Neighbor Jean McGowan testified she was awakened by her barking dogs about 6:00 a.m. on the day of the break-in. McGowan and her husband looked outside and saw police activity at B.L.'s house, located directly across the street. McGowan estimated that about a week or two before the break-in, B.L.'s house had been tented for termites. The afternoon before the break-in, McGowan and her husband noticed a "silver sedan-type car" at the "very top" of the cul-de-sac that looked similar to the car that they saw parked in the driveway of B.L.'s house on the morning of the break-in.
Deputy Sheriff Rick Ellington, a 38-year veteran of the San Diego County Sheriff's Department, testified that a typical dosage unit for a heroin-user was .05 grams; that using such measure, 3.2 grams of heroin was about 60 dosage units; and that, because the price of heroin had dropped because of supply and demand, 3.2 grams of heroin had a "street value" of around $150. Regarding the methamphetamine, Deputy Ellington testified that a typical dose for a methamphetamine user also was .05, or 20 doses, per gram; and that a gram of methamphetamine sold for about $40. Deputy Ellington opined it was "very" common for individuals who possess and use drugs to sell them as well in order to support their use.
Deputy Ellington opined that purchases of drugs over 3.5 grams, which he referred to as an "eight ball," strongly suggested the purchaser was going to resell that drug. In his experience, once that quantity of drugs is purchased, the buyer typically tells the dealer he or she is reselling the drug in order to obtain more drugs, in even larger quantities, in the future.
Deputy Ellington testified that the 3.2 grams of heroin could have been possessed for sale but that this amount was a "wobbler" because it also could be possessed for personal use. With regard to the methamphetamine, he further testified (under an assumed hypothetical) that the 23.85 and 17.03 grams of this controlled substance found in two separate bags was possessed for sale given the "sheer quantity" of the drug. That one or both of the individuals who possessed this drug (in the hypothetical) appeared under the influence of the drug did not change Deputy Ellington's opinion that this quantity of drug was possessed for sale because, as he noted, "oftentimes people that are involved in the sales of controlled substances are also users." Deputy Ellington's noted (in the assumed hypothetical) that possession of $590 in cash by one of the individuals in possession of the drugs further suggested the drugs were for sale.
Deputy Ellington also testified that, if one of the individuals (in the hypothetical) was separately found with 12.92 grams of methamphetamine in his or her possession, several empty plastic baggies and a scale disguised as a cellphone (on which a white residue was found), that individual would also be possessing the drugs for sale as opposed to for personal use.
Assuming a dose of methamphetamine was .05 grams, Deputy Ellington opined that the 12.92 grams found in the backpack belonging to Hewitt constituted about 258 dosage units; that the 23.85 grams found in Morrison's car was about 477 dosage units; and that the 17.03 grams (minus one gram for packaging), also found in the car, was about 326 dosage units. Based on these dosage units, Deputy Ellington opined defendants possessed the methamphetamine for sale and not for personal use.
DISCUSSION
I
Sufficiency of the Evidence
A. Guiding Principles
The standard of review for a challenge to the sufficiency of the evidence supporting a conviction is well established: " 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. D'Arcy (2010) 48 Cal.4th 257, 293 (D'Arcy).)
A judgment will not be set aside unless it appears " 'upon no hypothesis whatever is there sufficient substantial evidence to support [the jury's findings].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) Thus, "unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
B. Hewitt's Burglary Conviction (Count 1)
Hewitt contends the evidence is insufficient as a matter of law to support his burglary conviction because, unlike codefendant Morrison, Hewitt's blood was not found inside the house and none of the items recovered from the house were in his possession or in the two backpacks recovered where he was hiding. We disagree.
"[T]he substantive crime of burglary is defined by its elements as: (1) entry into a structure, (2) with the intent to commit theft or any felony. (§ 459; see also CALCRIM No. 1700.) If these elements are proven, the crime of second degree burglary has been committed. (§§ 459, 460, subd. (b).) However, if, in addition to these elements, there is also proof that the structure was inhabited at the time of the entry, the crime is elevated from second degree to first degree burglary. (§ 460, subd. (a); see also CALCRIM No. 1701.) First degree burglary is a greater substantive offense than second degree burglary because it requires proof of all the elements of second degree burglary and the additional element that the area entered was used as a dwelling." (People v. Anderson (2009) 47 Cal.4th 92, 101, fns. omitted.) "[T]he crime [of burglary] is complete, i.e., one may be prosecuted and held liable for burglary, upon entry with the requisite intent." (People v. Washington (1996) 50 Cal.App.4th 568, 578-579, italics omitted.) A burglary can be committed without an actual taking of property. (People v. Magallanes (2009) 173 Cal.App.4th 529, 535-536.)
Here, we conclude there is substantial evidence in the record to support Hewitt's burglary conviction, despite the fact the police did not find any items belonging to B.L. on him or in his immediate possession. (See People v. Magallanes, supra, 173 Cal.App.4th at pp. 535-536.) The record nonetheless shows B.L. repeatedly testified she heard two voices inside her daughter's room, which was adjacent to her own room. Although B.L. could not make out what the voices were saying, she was "positive" she heard two different voices inside the house. Officer Crawford confirmed when he contacted B.L. that she told him she heard two male voices inside her house. This substantial evidence is credible and alone supports Hewitt's burglary conviction. (See People v. Young, supra, 34 Cal.4th at p. 1181.)
But there's more. The record also shows that Morrison's blood was found on the glass door defendants used to gain access to the house; on the floor inside the house; on one of the multiple baggies found inside the backpacks recovered in the area where Hewitt was found hiding a short time later; and on a towel wrapped around a bag of methamphetamine also found in one of the same backpacks. In addition, the record shows that not only was the glass door smashed open but that another door near the kitchen/living room was also found open inside the house. B.L. testified both doors were locked beforehand.
In light of the fact blood evidence belonging to Morrison was found in the backpacks recovered from Hewitt; the fact B.L. heard one of the suspects say " '[m]y job is done,' " or words to that effect, at or near the time she was leaning out her bedroom window; the fact B.L. also heard a scream and the substantial injury Morrison sustained to his hand that rendered him incapacitated and that required medical treatment, we conclude the evidence in the record—and the inferences to be drawn from that evidence—support the finding that both Morrison and Hewitt entered the house and that Hewitt exited the house through the door near the kitchen, where no blood was found, and fled (as discussed in more detail, post) while Morrison, bleeding heavily, returned to the silver sedan, where he was found injured by police. (See People v. Kraft (2000) 23 Cal.4th 978, 1053 [noting under the substantial evidence test, a court of review must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, including all reasonable inferences drawn from circumstantial evidence].)
In light of our decision, we need not decide whether Hewitt's burglary conviction also could be upheld on an aiding and abetting theory on which the prosecution also relied. Nonetheless, we note there appears to be substantial evidence to support his burglary conviction on this basis as well, inasmuch as Hewitt and Morrison drove together to B.L.'s house in a car that contained various masks/disguises in plain view and that had its rear license plate purposely obscured; that shortly after the burglary, Hewitt was found hiding nearby in some bushes and, when contacted, was found with mechanic-like gloves on his person; that Morrison's blood was found inside the house and inside Hewitt's backpacks; and that various items from B.L.'s house were found in Morrison's car. (See People v. McCoy (2001) 25 Cal.4th 1111, 1118 [noting to " 'prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense" ' "].)
C. Possession of Methamphetamine for Sale (Count 2)
Defendants next separately contend the evidence is insufficient as a matter of law to support each's conviction for possession of methamphetamine for sale, as opposed to possession for mere personal use. We disagree as to both defendants.
It is axiomatic that " '[u]nlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.' " (People v. Harris (2000) 83 Cal.App.4th 371, 374.) Intent to sell may be, and is often, established by circumstantial evidence. (Ibid.) When reviewing a challenge to the sufficiency of the evidence to support a conviction based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding does not warrant reversal. (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290.)
Expert testimony is admissible when it relates to a subject that is sufficiently beyond common experience that the opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).) In cases involving possession of drugs, officers may give their opinion that the narcotics are held for the purpose of sale based upon the quantity, packaging and normal use of an individual. (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 860.) Based on such testimony, convictions of possession for the purpose of sale have been upheld. (Newman, at p. 53.)
Turning first to Hewitt, the record shows on contact police found two backpacks in the immediate area where Hewitt had been hiding. Inside the backpack(s), police found what was later determined to be 12.92 grams of methamphetamine and several small, empty baggies. On Hewitt's person, police also found a mini digital scale—disguised as a cellphone—with a white crystalline substance on it.
Deputy Ellington, a 38-year veteran in law enforcement, testified that a typical dose for methamphetamine use was .05 grams. As such, he further testified the 12.92 grams of methamphetamine was about 258 dosage units. In light of the sheer quantity of methamphetamine found in Hewitt's backpacks, when considered in light of the other evidence including the empty baggies and the mini digital scale found in his possession, Deputy Ellington opined Hewitt possessed the methamphetamine for sale.
This substantial evidence supports the finding Hewitt possessed the methamphetamine with the intent to sell. (See People v. Lopez (1994) 21 Cal.App.4th 1551, 1555-1556 (Lopez) [noting police officer with appropriate expertise may testify cocaine is sold in small plastic baggies to explain the significance of the evidence seized].) As such, we uphold his conviction on count 2 for possession of a controlled substance for sale.
That there was other evidence in the record that supported an opposite finding—including that Hewitt was a "heavy user" of methamphetamine and was perhaps "high" on the drug at the time he committed the instant offenses—does not change our conclusion. (See D'Arcy, supra, 48 Cal.4th at p. 293 [noting the principle that "[i]f the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding" (italics added)].) The jury as trier of fact considered such evidence and rejected Hewitt's contention he possessed the drugs merely for personal use. (See Lopez, supra, 21 Cal.App.4th at pp. 1555-1556.)
Turning next to Morrison, the record shows police found in two bags in his car: one containing 23.85 grams of methamphetamine and another containing 17.03 grams of the same white crystalline substance, including the outer packaging. Deputy Ellington testified the 23.85 grams of methamphetamine consisted of 477 dosage units, based on a .05-gram per dose basis, and the other bag with the same crystalline-appearing substance consisted of 326 dosage units, for a total of 803 doses between both bags, based on the same unit of measurement.
Deputy Ellington testified it was common for two individuals to work together to sell controlled substances, with one individual being primarily responsible for holding the proceeds from the sales and the other for making the sales. Based on the fact Hewitt possessed several empty baggies and a digital scale containing a white crystalline substance, and based on the fact Morrison was found with $590 in cash and with about 803 doses of methamphetamine in his car, in light of such evidence and Deputy Ellington's testimony, we further conclude there is more than sufficient evidence to support Morrison's conviction on count 2 for possession of a controlled substance for sale. (See Lopez, supra, 21 Cal.App.4th at pp. 1555-1556.)
Again, that Morrison contended he also was a "heavy user" of methamphetamine and the scale found in Hewitt's backpack was merely a "means for a user to measure the amount of drugs" does not change our conclusion that Morrison possessed the methamphetamine for sale. (See D'Arcy, supra, 48 Cal.4th at p. 293; see also People v. Cravens (2012) 53 Cal.4th 500, 507-508 [noting a jury, not the appellate court, must be convinced of the defendant's guilt beyond a reasonable doubt and further noting if the circumstances reasonably support the jury's finding of guilt beyond a reasonable doubt, a court of review will not reverse even if it believes that it might reasonably reconcile the circumstances with a contrary finding]; People v. Bolin, supra, 18 Cal.4th at p. 331 [concluding a conviction shall stand "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [it]' "].) Again, the jury as trier of fact clearly rejected Morrison's contention he possessed the drugs for personal use when it found Morrison guilty in count 2 of possession of a controlled substance for sale.
D. Possession of Heroin (Count 3)
Hewitt alone contends there was insufficient evidence that he had constructive "possession" of the heroin found in Morrison's car. We disagree.
To convict a defendant of unlawful possession of a controlled substance, the People must prove the defendant (1) possessed, (2) a usable amount of a controlled substance, (3) knowing (a) he or she possessed it and (b) it was a controlled substance. (People v. Busch (2010) 187 Cal.App.4th 150, 161.) Possession may be actual (e.g., in the defendant's hands) or, such as in the instant case, constructive, exclusive or even joint. (Ibid.) A defendant constructively possesses a controlled substance if he or she has " 'the right to exercise dominion and control over' " (1) the contraband, or (2) the place where it is found. (Ibid.)
Each of the elements may be proved by circumstantial evidence and any reasonable inferences drawn from such evidence. (People v. Tripp (2007) 151 Cal.App.4th 951, 956.) "Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction." (People v. Redrick (1961) 55 Cal.2d 282, 290.)
Although an "opportunity of access to a place where narcotics were found . . . , without more, is insufficient to support a finding of unlawful possession" (People v. Glass (1975) 44 Cal.App.3d 772, 777, italics added), we conclude on the record here there is more than sufficient evidence to support a finding of constructive possession of the heroin by Hewitt.
The record shows that Hewitt and Morrison drove together in Morrison's car—where the heroin was found—to B.L.'s house (see People v. Haynes (1967) 253 Cal.App.2d 1060, 1070 [constructive possession of drugs shown via evidence of jointly occupying the house where drugs were found]; People v. Saldana (1984) 157 Cal.App.3d 443, 455 [constructive possession of drugs shown via evidence of jointly occupying bedroom where drugs found]); that this car was seen at the top of the cul-de-sac the day before the break-in; that both suspects appeared to be on drugs when contacted by police; that both suspects separately possessed substantial quantities of methamphetamine for sale; that, although Morrison did not possess baggies or a scale, Hewitt in fact possessed those items in his backpack(s) found in his immediate location; that such facts support the inference that Morrison and Hewitt were working together in connection with the sale of methamphetamine, as discussed ante; that this inference is further supported by evidence of Morrison's blood that was found on one of the baggies in Hewitt's backpack; that in light of the evidence of cooperation and the inferences to be drawn from such evidence, Morrison and Hewitt had access to, and knowledge of, the other's possession of controlled substances including the heroin; that on Hewitt's cellphone, police found a text message from May 31 that said, " 'Do you have any black?' "; and that the People's expert testified that the reference to "black" on Hewitt's phone meant heroin.
Reviewing the evidence in the light most favorable to the judgment and drawing all inferences the jury reasonably could have drawn from the evidence (People v. Rodriguez (1999) 20 Cal.4th 1, 11), we conclude based on the foregoing there is sufficient evidence supporting the jury's finding that Hewitt constructively possessed, and also knew of the existence of, the heroin found in Morrison's car. (Compare People v. Boddie (1969) 274 Cal.App.2d 408, 410 [reversing a defendant's conviction for possession of heroin when the defendant, who appeared intoxicated and had 13 fresh scab marks on his arm, was merely a passenger in a car in which a balloon of heroin was found and when the driver of the car, who clearly knew of the presence of the drug, reached under the seat of his car in the presence of law enforcement, obtained two similar balloons and swallowed them].) As we have explained, that there is contrary evidence presented by Hewitt that could have supported an opposite finding does not warrant a reversal of his conviction on count 3. (See D'Arcy, supra, 48 Cal.4th at p. 293.)
II
Instructional Error
A. Flight
Hewitt alone contends the court erred when it instructed the jury on flight because the instruction was not supported by the evidence. We disagree.
The flight statute, section 1127c, provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he [or she] is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his [or her] guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
The trial court, based on CALCRIM No. 372, instructed the jury as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
"In general, a flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his [or her] movement was motivated by a consciousness of guilt.' " (People v. Bradford (1997) 14 Cal.4th 1005, 1055 (Bradford), quoting People v. Ray (1996) 13 Cal.4th 313, 345.) As noted, evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest "a purpose to avoid being observed or arrested." (People v. Crandell (1988) 46 Cal.3d 833, 869.) To obtain the instruction, the prosecution need not prove the defendant in fact fled—i.e., departed the scene to avoid arrest—but only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. (See People v. Turner (1990) 50 Cal.3d 668, 694-695.)
Here, we conclude there is ample evidence in the record to support instructing the jury with CALCRIM No. 372 as it pertains to Hewitt. Indeed, the evidence in the record shows he and Morrison both were involved with the burglary of B.L.'s house; that after Morrison lacerated his hand ostensibly while gaining access to the house through the shattered glass door, Morrison returned to his car, where he patiently sat with his car door open until law enforcement arrived; that unlike Morrison, Hewitt left the scene of the burglary and was found about 30 minutes later hiding in some bushes about a block away from the break-in; that when initially found by medical responders, Hewitt pretended to be unresponsive; that on contact, Hewitt promptly responded to officers' commands; and that, in addition to finding mechanic-type gloves and a mini digital scale with a white crystalline substance on it that was disguised to look like a cellphone, police also found 12.92 grams of methamphetamine in his backpack and several small, empty baggies, including one with Morrison's blood on it.
Although Hewitt offers various reasons why his conduct did not support a flight instruction, including the fact he was on probation and/or was under the influence, we nonetheless conclude the evidence supported instructing the jury with CALCRIM No. 372 because a reasonable jury could conclude that, after participating in the burglary of B.L.'s house, Hewitt's decision to flee the scene was " 'was motivated by a consciousness of guilt' " (see People v. Bradford, supra, 14 Cal.4th at p. 1055) and to avoid detection. (See ibid. [noting flight " ' "requires neither the physical act of running nor the reaching of a far-away haven," ' " but that it does " ' " manifestly . . . require . . . a purpose to avoid being observed or arrested" ' "].) Consequently, the court properly gave the flight instruction as it pertained to Hewitt.
B. Unanimity
Defendants each contend the court was required sua sponte to give a unanimity instruction in connection with count 2 because methamphetamine was found both in Morrison's car and in Hewitt's backpack, which they contend constituted two distinct incidents of possession. We disagree.
"As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679.) "There are, however, several exceptions to this rule. . . . There . . . is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Ibid.)
Here, the record shows each defendant offered the same defense to count 2: that each was a "heavy user" of methamphetamine and that, therefore, they possessed the drugs for personal use and not for sale. Because defendants offered the same defense that was rejected by the jury and because there was no conflict between them concerning ownership of any of the methamphetamine found in their "joint" possession, we conclude that a unanimity instruction was not necessary and/or that the trial court's failure to give such an instruction was harmless error. (See People v. Jennings, supra, 50 Cal.4th at p. 679; see also People v. Diedrich (1982) 31 Cal.3d 263, 282-283 [noting the failure to instruct can be harmless error where the defendant offers the same defense to all criminal acts and "the jury's verdict implies that it did not believe the only defense offered"]; People v. Gonzalez (1983) 141 Cal.App.3d 786, 792, fn. 6 [noting error was harmless where "jurors cannot disagree concerning the defense offered"]; compare People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071 [reversing for failure to give unanimity instruction on possession of narcotics charge where jury heard evidence of two acts (heroin discovered on the defendant's television and in his coin pocket) and defendant's defense was the television heroin belonged to his son and the coin pocket heroin was planted].)
III
Sentencing
A. Strike of a Strike Prior (Vargas/Romero)
Morrison alone contends the court erred in failing to treat his two priors stemming from an offense in mid-February 2007 as a single prior. Pursuant to Morrison's probation report, in case No. SCD204961 Morrison entered a house rented by the victim, "removed computer parts from the residence and set the house on fire," causing $200,000 in damage. In late February 2007, officers contacted Morrison in his car and with his consent, searched the car and found among other items "computer components later identified as belonging to [the victim]." The probation report states Morrison pleaded guilty to count 1, first degree burglary (§ 460) and to count 2, arson (§ 451, subd. (b)). As a result, Morrison was sentenced to eight years in state prison in connection with these offenses. In sentencing Morrison in the instant case to an indeterminate term of 25 years to life, the court found there were two strike priors and one serious felony prior stemming from case No. SCD204961.
The probation report states "PG-F," which we interpret to mean "pleaded guilty -- felony" with respect to "CT 1" and "CT 2." --------
Morrison relies on our high court's decision in People v. Vargas (2014) 59 Cal.4th 635 (Vargas) in contending his two prior strike offenses must be treated as a single strike. In Vargas, our high court held that two prior convictions arising out of a single act against a single victim could not constitute two strikes under the "Three Strikes" law. (Id. at p. 637.) There, the defendant had two prior strikes—carjacking and robbery—which were based on the same act of taking the victim's car by force. (Id. at p. 645.) The trial court in Vargas counted each prior conviction separately and sentenced the defendant to prison for 25 years to life.
In reversing, Vargas concluded that the defendant's case fell into a "rare category" because the defendant's "two strikes were based on the same act." (Vargas, supra, 59 Cal.4th at p. 642, italics added.) The court further concluded that treating such a defendant "as a third strike offender[ ] was inconsistent with the intent underlying both the legislative and initiative versions of the Three Strikes law." (Id. at p. 645.) The court explained the "voting public would reasonably have understood the 'Three Strikes' baseball metaphor to mean that a person would have three chances—three swings of the bat, if you will—before the harshest penalty could be imposed. The public also would have understood that no one can be called for two strikes on just one swing." (Id. at p. 646.)
The Vargas court noted it previously had held in People v. Benson (1998) 18 Cal.4th 24 (Benson) that even when a defendant's "previous two crimes could not be separately punished at the time they were adjudicated because they were committed during the same course of conduct (§ 654), . . . such close factual and temporal connection did not prevent the trial court from later treating the two convictions as separate strikes when the [defendant] reoffended." (Vargas, supra, 59 Cal.4th at p. 638.) The Vargas court recognized Benson had posed, but not decided, the issue then before it in Vargas: " 'Because the proper exercise of a trial court's discretion under section 1385 necessarily relates to the circumstances of a particular defendant's current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.' (Benson, supra, at p. 36, fn. 8, italics added.)" (Vargas, at p. 643.)
Here, the record shows Morrison in 2007 pleaded guilty in case No. SCD204961 to the separate offenses of first degree burglary and arson. Although the record shows both offenses occurred on the same day, involved the same victim and occurred as a result of a single entry into the house, the record shows defendant's two convictions did not involve a single act, as was the case in Vargas (Vargas, supra, 59 Cal.4th at p. 642), but rather involved multiple acts—entry with intent to commit a felony, the stealing of computer equipment that was later found in Morrison's car, and setting the house ablaze—all committed in an indivisible course of conduct, as was the case in Benson. (See Benson, supra, 18 Cal.4th at p. 36, fn. 8.) As such, we conclude Morrison is not entitled under Vargas to have his two strike priors in case No. SCD204961 treated as a single strike.
Morrison alternatively contends the court abused its discretion when it refused to strike one of his strike priors in the "furtherance of justice." (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) In deciding a Romero motion, a court balances the constitutional rights of the defendant and the interests of society by considering (1) the nature of the past and present convictions and (2) evidence of the defendant's future prospects, background, and character. (People v. Carmony (2004) 33 Cal.4th 367, 377.) The Three Strikes law "creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper." (Id. at p. 378.) As a result, "a trial court will only abuse its discretion in failing to strike a prior felony conviction . . . in limited circumstances," such as where it "was not 'aware of its discretion' to dismiss" or where " 'the sentencing norms [of the Three Strikes law] produce[ ] an "arbitrary, capricious[,] or patently absurd" result' under the specific facts of a particular case." (Ibid.)
Here, the record shows the court was not only aware of its discretion to strike one of Morrison's strike priors but also properly exercised it in denying his Romero motion. The record shows at sentencing, Morrison's counsel argued at length that Morrison had struggled with drug addiction since he was 12 years old.
The record also shows that in 1992, when Morrison was a juvenile, true findings were made on the charges of burglary and tampering with a vehicle; that he was convicted in 2000 of burglary and possession of a controlled substance; that he was convicted in 2000 of driving without a license; that in 2001, he was convicted of burglary stemming from an incident in Payson, Arizona; that also in 2001, he was convicted for fraudulent use of a credit card and theft of credit card by fraudulent means; that in 2008, he pleaded guilty (as noted) to first degree burglary and arson arising from the incident in February 2007; that when Morrison was contacted in 2007 in connection with that case, police found in his car: tools, duct tape, rope, binoculars, an M-80 explosive, a roll of black fuse cord, a shotgun and shotgun shells, latex rubber gloves, computer components (belonging to the victim, as noted), two "walkie talkies," methamphetamine, needles and a large amount of marijuana, among other items; and that also in early 2008, he pleaded guilty to burglary and grand theft—firearm, after police in July 2007 separately contacted him, searched his car and found, among other items: a hidden rifle, numerous tools, electronic equipment, gloves, a wig, a knife made with a blade attached to a screwdriver, a computer bag with 44 separate housing keys from San Diego State University and a pellet gun.
The record shows after reviewing the briefs filed by the parties, and listening to a prepared statement read by Morrison and the argument of counsel, the court denied Morrison's Romero motion. In so doing, the court found that Morrison's future prospects were "very -- very bleak"; that society had a right to protect itself from his continuing criminal behavior; and that the crime of arson in 2007—one of Morrison's strike priors—was a "very scary part of this" behavior. The court noted, "His [i.e., Morrison's] affinity with weapons, he's constantly being found with weapons, ammunition, burglary tools, disguises. I just think society has the right at this point in his life of continued criminality to protect itself. I think he represents a very significant danger to society. [¶] . . . I think any reasonable judge is going to believe he is extremely dangerous. Society needs to be protected from him."
Thus, the record clearly shows the court weighed Morrison's character, background and future prospects against his lengthy criminal record in concluding Morrison did not fall outside the spirit of the Three Strikes law. We therefore conclude the court properly exercised its discretion in declining to strike under Romero one of Morrison's strike priors.
B. Strike of a Strike Prior (Prepackaged Plea Deal)
Morrison alternatively contends the court abused its discretion in failing to strike one of his strike priors because he and Hewitt were offered 13 years as a prepackaged plea deal that was conditioned on both defendants' acceptance of the bargain, which Hewitt refused to accept. Morrison thus further contends the court allegedly punished him by imposing an indeterminate term of 25 years to life as a result of the exercise of his right to a jury trial. We disagree.
During the sentencing hearing and in the defense's sentencing brief, Morrison informed the court the prosecution had offered him and Hewitt this package deal during a readiness conference. The record shows the court was "surprised" the prosecution would make such an offer because, in the court's view, Morrison was a "very dangerous person" and was an "extreme danger to others." In any event, the court noted that it was not bound by any such offer and that it was skeptical a judge would have accepted it.
The court further noted as follows: "[M]y usual statement to defendants in cases that come to me for trial is, 'I am a trial department; I'm not a disposition department. You've been through the disposition process; I'm here to preside over the trial. So I'm not going to affirmatively mention disposition. Now, if I'm asked to consider the disposition, I will. But we're past that point. We're here to try the case and you need to understand that.'
"But I also tell defendants on a regular basis that, 'I'm certainly not going to consciously penalize you for exercising your right to trial. But I'm not bound by any disposition discussions, and it would be a different calculus if we get to that point when I'm sentencing you, and you need to understand that, Mr. Defendant.' And so that's -- but I am -- I am sensitive that we don't consciously or even subconsciously penalize people for exercising their constitutional right.
"And of course, the case is further complicated by the fact there's a co-defendant. And so he [i.e., Morrison] may have been willing to accept the offer, although, as I say again, I'm surprised that that offer was made. But be that as it may, Mr. Hewitt was not, and so it had to be a so-called package deal. Of course, his option at that point would have been to plead to the sheet and take his chances with the court."
Here, we reject Morrison's contention that the court erred in refusing to strike one of his strike priors because his codefendant Hewitt refused to accept a pretrial package offer of 13 years that was conditioned on both defendants' approval of the bargain. First, we note plea deals contingent on the acceptance of all named defendants are not unconstitutional. (See People v. Barnett (1980) 113 Cal.App.3d 563, 567 [rejecting the contention of the defendant that "she was deprived of her federal and state substantive due process rights because she was forced to stand trial after her codefendant rejected the 'package deal' plea bargain offer conditioned on the acceptance of the bargain by both"]; see also In re Ibarra (1983) 34 Cal.3d 277, 287-288 [noting a "package-deal" plea bargain should be considered under the "totality of the circumstances" to ensure the plea is "freely and voluntarily given"], disapproved on another ground as stated in People v. Howard (1992) 1 Cal.4th 1132, 1175-1178.)
Second, the record in the instant case clearly shows the court did not base its decision to impose on Morrison an indeterminate sentence of 25 years to life because the case went to trial. To the contrary, the record unambiguously shows the court "consciously" refused to consider the fact the case went to trial when imposing sentence on Morrison. (Compare, In re Lewallen (1979) 23 Cal.3d 274, 279 [noting the trial court's remarks during sentencing of the defendant indicated the defendant received a harsher sentence because he elected to proceed to trial].) As noted, the record further shows the court properly weighed Morrison's character, background and future prospects against his lengthy criminal record in concluding Morrison did not fall outside the spirit of the Three Strikes law.
Third, Morrison was not entitled to the same sentence he would have received if he had in fact been allowed to plead guilty. (See In re Lewallen, supra, 23 Cal.3d at p. 280.) It is axiomatic that a trial court's discretion in imposing sentence is not limited by the terms of any negotiated plea offered by the prosecution. (Id. at p. 281.) Thus, the fact Morrison ultimately received a more severe sentence than was initially offered in the pretrial plea package does not support the inference he was penalized for exercising his constitutional right, particularly in light of the record in this instant case in which the court specially stated it was not considering the fact the case proceeded to trial in imposing sentence on Morrison. (See People v. Szeto (1981) 29 Cal.3d 20, 35 [rejecting the defendant's claim the trial court penalized him for exercising his right to jury trial by imposing a more severe sentence than had been proffered during plea negotiations because the "the sentencing judge did not say anything reasonably giving rise to the inference that [the court] was penalizing defendant for exercising his right to jury trial" and because the "mere fact, if it be a fact, that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights"].)
C. Amendment to the Abstract of Judgment
Finally, Morrison contends the abstract(s) of judgment do not accurately reflect the court's oral pronouncement at the February 26, 2016 sentencing. At the hearing on February 26, the court sentenced Morrison to 25 years to life on count 1, a concurrent upper term of three years doubled for a total of six years on count 2, with credit for time served on count 3, and a consecutive five-year term on the "nickel prior." The court also imposed victim restitution in favor of B.L. in the amount of $2,500 jointly and severally on Morrison and Hewitt.
Although the abstract of judgment for the indeterminate term indicates the determinate term on count 2 is concurrent, Morrison contends the accompanying abstract of judgment for the determinate term does not provide the sentence is to run concurrently and instead shows a determinate term of 11 years. Morrison further contends the indeterminate abstract of judgment also fails to reflect the victim restitution to B.L. was joint and several as to defendants.
The People partially agree. Regarding the victim restitution, the People agree Morrison's indeterminate abstract of judgment should be modified to show it is joint and several as to defendants. Moreover, although Hewitt did not raise this issue in his opening brief, the People further agree Hewitt's abstract of judgment should also be modified to show victim restitution is joint and several to reflect the court's oral pronouncement at Hewitt's sentencing.
Regarding Morrison's sentence on count 2, the People note on page 2 of the determinate abstract of judgment it correctly states under "[o]ther orders (specify)" that his determinate sentence "is to be served concurrently with the indeterminate sentence in count 1." However, the People further note the "concurrent" box for count 2 on the first page of this abstract is not checked and the "total time" box shows 11 years instead of five years. Thus, the People agree Morrison's abstracts should be modified accordingly. We also agree. (See People v. Mesa (1975) 14 Cal.3d 466, 471 [noting a court's oral pronouncement of sentence typically controls over the abstract of judgment as the latter cannot add to or modify the judgment which it purports to summarize]; see also People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [citing People v. Mesa in noting the "record of the oral pronouncement of the court controls over the clerk's minute order"].)
DISPOSITION
The superior court is directed to amend the abstracts of judgment of Morrison and Hewitt to show the victim restitution to B.L. in the amount of $2,500 is joint and several as to defendants. The court is further directed to amend the determinate abstract of judgment of Morrison by (1) checking the "concurrent" box on page 1 of that abstract to show count 2 is in fact to be served concurrently with the indeterminate sentence in count 1 and (2) stating the "total time" to be served on count 2 is five and not 11 years. Finally, the court is further directed to forward a copy of the amended abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments of conviction are affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.