Opinion
C084848
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL HARRISON MOTA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE023063)
A jury found defendant Daniel Harrison Mota guilty of transporting methamphetamine for sale, and the trial court imposed the upper term. On appeal, defendant contends the trial court erred in not instructing the jury on simple possession as a lesser included offense. He also challenges the imposition of the upper term, arguing he did not commit his crime with planning, sophistication, or professionalism. We will order a corrected abstract of judgment and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Late at night, two officers patrolling in a squad car pulled over a Mitsubishi Eclipse for an unilluminated license plate. The Mitsubishi pulled into a parking lot. Defendant was in the front passenger seat.
The driver was handcuffed when he could not produce identification. An officer had defendant step out of the car in order to search it. The officer performed a cursory search of defendant for weapons. During the search, the officer felt something in defendant's jacket pocket about the size of a baseball that felt like hard-shell sunflower seeds. The officer asked defendant if it was sunflower seeds. Defendant said it was. Believing it not a weapon, the officer did not retrieve the object.
The officer then walked defendant to the squad car and started to search the Mitsubishi. Meanwhile, the other officer arrested defendant and in the process noticed a baggie to the left of where defendant had been sitting in the squad car. The baggie contained 90.5 grams of methamphetamine. What felt like sunflower seeds in defendant's pocket was no longer there.
The parties stipulated that the traffic stop, the search, and defendant's arrest were lawful.
The jury found defendant guilty of transporting methamphetamine for sale. (Health & Saf. Code, § 11379, subd. (a).) But it deadlocked on a count of possessing methamphetamine for sale (id., § 11378) and the trial court declared a mistrial on that count.
The trial court later imposed the four-year upper term for transporting methamphetamine for sale.
DISCUSSION
1.0 The Trial Court Did Not Err in Instructing the Jury
On appeal, defendant first contends the trial court erred in failing to instruct the jury on simple possession as a lesser included offense of transportation for sale. We disagree.
Two tests, the "elements" test and the "accusatory pleading" test, determine if a lesser offense is necessarily included in the charged offense. (People v. Shockley (2013) 58 Cal.4th 400, 404.) The elements test asks if all the statutory elements of the lesser offense are included in the elements of the greater offense. (Ibid.) The accusatory pleading test asks if the facts alleged in the accusatory pleading of the greater offense include all the elements of the lesser offense. (Ibid.) The accusatory test does not apply if the pleading simply states the offense in the language of the statutory definition. (People v. Eagle (2016) 246 Cal.App.4th 275, 279; see People v. Anderson (1975) 15 Cal.3d 806, 809.) And evidence adduced at trial is irrelevant to whether there is a lesser included offense. (People v. Wright (1996) 52 Cal.App.4th 203, 208.)
Defendant concedes possession is not a lesser included offense of transportation under the elements test. But he maintains it is under the accusatory pleading test. He notes the amended information alleged facts specific to the case, namely, the date and county of the violation. And he argues the amended information should be read as a whole to include the fact that count two alleged the possession of methamphetamine for sale. Defendant is mistaken.
First, the accusatory pleading test does not apply because the pleading is couched in the language of the statutory definition:
On or about December 7, 2016, at and in the County of Sacramento, State of California, the defendant, DANIEL [HARRISON] MOTA, did commit a felony, namely: a violation of Section 11379(a) of the Health and Safety Code of the State of California, in that said defendant did unlawfully
transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, methamphetamine.[]
For comparison, the statute provides in pertinent part: "[E]very person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance . . . shall be punished . . . ." (Health & Saf. Code, § 11379, subd. (a).)
Second, the fact that the pleading includes the date and county of violation does not transform the offense to include possession. Nor is it appropriate to augment one offense with the elements of another in determining whether an offense includes a lesser included offense—and defendant offers no authority for doing so. Accordingly, as pleaded, simple possession was not a lesser included offense of transportation for sale, and the trial court did not err in its instruction to the jury.
Defendant appears to rely on a footnote in People v. Rogers (1971) 5 Cal.3d 129, 134, footnote 3 to suggest possession was incidental and necessary to his transportation offense: "In cases where [the] defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and [the] defendant may not be convicted of both charges." The Rogers footnote, however, cannot cure the shortcomings in defendant's accusatory pleading argument. (See People v. Watterson (1991) 234 Cal.App.3d 942, 945-946 [noting the Supreme Court's statement in footnote 3 in Rogers was dicta and the cases it cited are themselves inconsistent]; People v. Wright, supra, 52 Cal.App.4th at p. 208 [evidence adduced at trial is irrelevant to whether there is a lesser included offense].) Moreover, Rogers squarely holds possession is not an essential element of transportation. (Rogers, supra, 5 Cal.3d at p. 134.) --------
2.0 The Trial Court Acted Within Its Discretion in Imposing the Upper Term
Defendant next challenges the imposition of the upper term, arguing the trial court erroneously found the crime was committed with sophistication, planning, and professionalism. Defendant maintains that dropping the bag of methamphetamine next to him, where it was easily detected, displayed "a pathetic level of amateurism." We disagree.
In imposing the upper term, the trial court explained: "The upper term is selected pursuant to [California Rules of Court,] [r]ule 4.421(a)(8), [in] that the manner in which the crime was carried out indicated a level of planning, sophistication, or professionalism. I make that conclusion . . . in that he had secreted the methamphetamine in a jacket pocket and during the investigation of his involvement in the matter when officers' backs were turned, he took the contents of his pocket, to wit, the methamphetamine, and threw it away from his person to separate himself from the fact of his possession of the methamphetamine."
The court also noted the crime involved a large quantity of methamphetamine, defendant's prior convictions were numerous and increasingly serious, he had served multiple prior prison terms, he was on postrelease supervision when the crime was committed, and his prior performance on probation or postrelease supervision was unsatisfactory.
We review a trial court's decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A court abuses its discretion if it relies on circumstances not relevant to the decision or that "constitute an improper basis for decision." (Id. at p. 847.) An upper term may be based on "any aggravating circumstance" the court deems significant so long as it is " 'reasonably related to the decision being made.' " (Id. at p. 848.) A challenge to the sentence must show the decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The trial court's determination that defendant's conduct showed sophistication, planning, or professionalism was neither irrational nor arbitrary. In hindsight, defendant's secreting the bag of methamphetamine away from his person may well have ultimately worsened his outcome. But it is reasonably surmised that such a sleight of hand could have avoided the discovery of contraband.
Here, in addition to the sophistication, planning, and professionalism factor, the trial court relied on the large quantity of contraband defendant possessed as well as the fact that defendant's prior convictions are numerous and increasing in severity, he had served multiple prior prison terms, he was on postrelease supervision during his current crime, and defendant's past performance on probation and postrelease supervision was unsatisfactory. Given that a single aggravating factor suffices to permit an upper term, even assuming defendant did not show sophistication, we could not find the imposition of the upper term an abuse of discretion. (See People v. Black (2007) 41 Cal.4th 799, 815 [presence of a single aggravating circumstance permits the trial court to impose an upper term].) The trial court thus acted well within its discretion in imposing the upper term.
3.0 Correction of The Abstract of Judgment
Finally, we note an error requiring correction. At sentencing, the trial court imposed a $40 operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 conviction assessment (Gov. Code, § 70373), and a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)) along with $130 in accompanying penalties and assessments. Yet, the abstract of judgment does not reflect those fees. It does, however, reflect a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), which the trial court never imposed. We will therefore order a corrected abstract. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [the abstract must accurately summarize the oral pronouncement, including all fines and fees].)
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting the imposition of a $40 operations assessment (Pen. Code, § 1465.8), a $30 conviction assessment (Gov. Code, § 70373), and a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), along with $130 in accompanying penalties and assessments. The reference to the $150 drug program fee in the abstract should be stricken. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.