Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA081839, Tomson T. Ong, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
James Michael Newman appeals from the judgment entered following his conviction by jury of selling marijuana (Health & Saf. Code, § 11360, subd. (a)) with court findings he suffered three prior felony convictions (Pen. Code, § 667, subd. (d)) and 10 prior felony convictions for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced him to prison for 25 years to life. We modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on April 22, 2009, Daniela Castillo was a police assistant for the Long Beach Police Department. After 6:00 p.m., Long Beach Police Officer Oscar Valenzuela and Castillo drove to a store on Atlantic. Castillo was wearing a red shirt and gray knee-high pants. Castillo saw appellant sitting alone in a parking lot. Valenzuela gave Castillo two prerecorded $20 bills and told her to talk to appellant.
Castillo went to appellant and asked if he knew where she could get marijuana. Appellant indicated he did not have any but knew where some could be obtained. Castillo, then appellant, said, “Let’s go.” While the two were walking together, appellant said they were going to a nearby location, he asked what the marijuana was for, and Castillo indicated it would be smoked. Castillo complained about the length of the walk and appellant said one of these days he would invite her for a walk on the beach because she needed exercise. Castillo thought appellant was flirting a little. She did not flirt with appellant.
As Castillo and appellant approached an apartment complex on Louise, appellant asked her how much marijuana she wanted and she replied two baggies. Appellant told her to wait outside and give her money to him. After Castillo suggested she wanted three baggies, appellant laughed and indicated she should decide how much she wanted. Castillo gave appellant one of the prerecorded $20 bills. Appellant knocked on an apartment door, a man opened it, the two spoke, and appellant entered.
Appellant returned shortly thereafter and said, “Let’s walk.” Castillo asked if he had her marijuana and appellant indicated yes. Either before or after she asked that, he asked for her phone number, but she did not provide it. Appellant retrieved from his pants three baggies of marijuana and five dollars, and gave the baggies and money to Castillo. The baggies contained 6.48 grams net weight of marijuana.
Castillo spoke to appellant in English. At trial, she spoke Spanish and used an interpreter.
Castillo entered Valenzuela’s car and gave him the marijuana and $25 dollars. Appellant was detained in front of the apartment complex. Police then entered the apartment and found on a bedroom nightstand a shoe box containing marijuana and $43.67 in cash, including one of the prerecorded $20 bills. The marijuana in the shoe box was contained in 25 plastic baggies, all of which were inside a larger plastic bag.
Long Beach Police Officer Andrew Fox interviewed appellant, and appellant told Fox the following. Appellant did not sell any marijuana. Appellant was just a go between, it was his fault police were in the apartment, and he had brought trouble upon a whole family that night. During the interview, Fox’s partner asked appellant why he sold the marijuana, and appellant replied he had only been with two women in the past nine months and he was just trying to get a number so he could please Castillo later. Appellant commented he was “trying to get a piece of [expletive] ass.” Appellant also said, “Well, she screwed me royally.” Police recovered from appellant’s right sock a plastic baggy containing.95 grams net weight of marijuana. The man who permitted appellant to enter the apartment was on probation for selling marijuana, and that man admitted to police that he was selling marijuana that day.
Castillo had made undercover narcotics buys before, the department usually paid her for doing so, and the amount paid depended in part upon whether her attempt to buy narcotics was successful. Castillo had done this over a period of nine years. A police narcotics expert testified narcotics transactions typically involved middlemen like appellant. Appellant presented no defense evidence.
Castillo wore a video/audio recording device which did not properly function during the present incident.
ISSUES
Appellant claims (1) the trial court erroneously attempted to partially acquit him as to the transportation theory of Health and Safety Code section 11360, subdivision (a), and amend the information, (2) the trial court erroneously failed to instruct on transportation of not more than 28.5 grams of marijuana in violation of Health and Safety Code section 11360, subdivision (b) as a lesser included offense, (3) the trial court erroneously failed to instruct sua sponte on entrapment, (4) cumulative prejudicial error occurred, (5) the court abused its discretion by denying his Romero motion, and (6) his sentence constituted cruel and unusual punishment. Respondent claims the court erroneously failed to impose certain penalties and a surcharge.
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).)
DISCUSSION
1. The Court’s Partial Granting of Appellant’s Motion for a Judgment of Acquittal Was Proper, and the Court Did Not Commit Instructional Error.
a. Pertinent Facts.
Count 1 of the information in the present case alleged, in pertinent part, that on or about April 22, 2009, “the crime of sale or transportation of marijuana, in violation of Health & Safety Code section 11360(a), a felony, was committed by [appellant], who did unlawfully transport, ... sell, furnish, administer, and give away, ... marijuana.” (Some capitalization omitted.)
On July 21, 2009, after the People rested outside the presence of the jury, the court advised appellant concerning his right to testify. The court then stated, “Motion.” Appellant’s counsel replied, “1118.1, and I don’t believe there is enough evidence to go to the jury to prove the case.” Both parties submitted the matter.
The court then stated, “Here is what I’ll do. 1118.1, based on the theories that’s placed in the information, it is this court’s opinion that the transportation of marijuana portion has not been proven. It is the sale portion that should go to the jury. The reason why I say that is because the transportation portion is incidental to the sale. In other words, he moved the marijuana from the apartment to the individual, and specific intent is required for transportation under the law. [¶] So if you... are only going to argue the sale of marijuana, transportation is not there. So in a sense it’s denied, but I will let you know right now that for the purpose of the theory of the case, we will not be advancing the transportation portion because that has not been proven based on the specific intent requirement.” Both parties later rested in the presence of the jury. The court did not instruct on a violation of Health and Safety Code section 11360, subdivision (b), or therefore, on that offense as a lesser included offense of Health and Safety Code section 11360, subdivision (a).
The minute order printed on July 23, 2009, for July 21, 2009 proceedings reflects, “1118.1 motion to dismiss is heard, argued. The court strikes the charge of transportation in the information. The verdict will read sales only.” However, the information was not amended by interlineation. The verdict form reflected the jury convicted appellant of “sale of controlled substance, to wit; marijuana... in violation of Health and Safety Code section 11360(a), as charged in count 1 of the Information.” (Some capitalization omitted.)
Health and Safety Code section 11360, provides, in pertinent part, “(a) Except as otherwise provided by this section or as authorized by law, every person who transports, ... imports into this state, sells, furnishes, administers, or gives away, ... any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years. [¶] (b) Except as authorized by law, every person who gives away, ... [or] transports, ... not more than 28.5 grams of marijuana, ... is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).”
b. Analysis.
Appellant claims the trial court, in violation of his rights to present a defense and to effective assistance of counsel, erred by (1) attempting to partially acquit appellant as to the transportation theory of Health and Safety Code section 11360, subdivision (a), and (2) amending the information to strike the transportation charge. Appellant, claiming Health and Safety Code section 11360, subdivision (a) itself was the “offense” charged in the information within the meaning of Penal Code section 1118.1, appears to argue the trial court could not properly have granted his Penal Code section 1118.1 motion unless the court granted it as to all of the statutorily specified ways by which that offense could have been committed. Appellant maintains that, but for the trial court’s alleged error, he would have been able to argue to the jury that he committed transportation of not more than 28.5 grams of marijuana in violation of Health and Safety Code section 11360, subdivision (b), as a lesser included offense of subdivision (a). Appellant presents the related claim the trial court erred by failing to instruct sua sponte on a violation of subdivision (b) as a lesser included offense of subdivision (a). We reject appellant’s claims.
Penal Code section 1118.1, states, in pertinent 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.” (Italics added.)
Penal Code section 15 states, in relevant part, “A crime or public offense is an act committed... in violation of a law forbidding... it, and to which is annexed, upon conviction, either of the following punishments: [¶]... [¶] 2. Imprisonment[.]” (Italics added.) “Transport[ing]... marijuana” within the meaning of Health and Safety Code section 11360, subdivision (a), is an act committed in violation of a law (i.e., subdivision (a)) forbidding that act (and imprisonment is annexed to that act upon conviction). This is equally true of “sell[ing]... marijuana” within the meaning of subdivision (a). Accordingly, transporting marijuana in violation of Health and Safety Code section 11360, subdivision (a) is an “offense[]” within the meaning of Penal Code section 1118.1. So is selling marijuana.
See People v. Loeun (1997) 17 Cal.4th 1, 9, which states, “The Legislature’s use of the disjunctive ‘or’... indicates an intent to designate alternative ways of satisfying the statutory requirements.” (See also People v. Mitchell (2008) 164 Cal.App.4th 442, 458; People v. Tafoya (2001) 92 Cal.App.4th 220, 227.)
In People v. Roberts (1953) 40 Cal.2d 483 (Roberts), an information alleged, inter alia, three counts, i.e., (1) transporting heroin in violation of former Health and Safety Code section 11500, (2) “selling, furnishing and giving away” (Roberts, at p. 486) heroin in violation of that section, and (3) possessing heroin in violation of that section. (Ibid.) Former Health and Safety Code section 11500, stated, in relevant part, “no person shall possess, transport, sell, furnish, ... or give away, ... a narcotic[.]” (Roberts, at p. 486.) In Roberts, an accomplice drove the defendant to an undercover police officer, and the defendant exited the car and sold heroin to the officer. The defendant was convicted on, inter alia, each of the above three counts.
Roberts stated, “The information charges and there is evidence that... defendant Roberts transported, furnished, and possessed heroin. Each of these acts is denounced by [former] section 11500 of the Health and Safety Code. The three acts are charged and adjudged as separate crimes. However, ‘cooperative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.’ (People v. Clemett (1929) 208 Cal. 142, 144; see, also, People v. Knowles (1950) 35 Cal.2d 175, 187.) The present case resembles the Clemett case in that the only possession and transportation of heroin shown were those necessarily incident to its sale. And as in the Clemett case (p. 150 of 208 Cal.) the error can be corrected by this court.” (Roberts, supra, 40 Cal.2d at p. 491.) Roberts reversed the defendant’s conviction for transporting heroin, reversed his conviction for possessing heroin, but affirmed his conviction for selling, furnishing, and giving away heroin. (Id. at pp. 486, 491.)
As a procedural matter, we believe that, fairly read, the record reflects that on July 21, 2009, after the court advised appellant concerning his right to testify, the court inquired if appellant was going to make a motion, appellant then moved for a judgment of acquittal pursuant to Penal Code section 1118.1, and the parties submitted the matter. Moreover, the trial court concluded appellant’s transportation of marijuana was incidental to its sale, granted the motion as to the offense of transporting marijuana, but denied the motion as to the offense of selling marijuana. Although the proceedings were informal, the court partially granted, and partially denied, a section 1118.1 motion as indicated above.
In the present case, there is no dispute there was sufficient evidence appellant sold marijuana. Transporting marijuana requires, inter alia, that a person conceal, convey, or carry marijuana. (People v. Busch (2010) 187 Cal.App.4th 150, 156.) We assume without deciding that transporting not more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (b)) is a lesser included offense of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)).
However, the only marijuana appellant concealed, conveyed, or carried in this case was the marijuana he brought to Castillo from the apartment and sold to her. That is, the transportation of any amount (whether less than, equal to, or more than, 28.5 grams) of marijuana in this case was incidental to the sale. (Cf. Roberts, supra, 40 Cal.2d at pp. 486, 491.) The trial court was right; as a matter of law the evidence established appellant committed only one offense: a sale of marijuana.
It follows “the evidence then before the court [was] insufficient to sustain a conviction of [the offense of transporting marijuana]... on appeal” within the meaning of Penal Code section 1118.1. Moreover, we note a “trial judge need not instruct the jury as to all lesser included offenses, just those that find substantial support in the evidence.” (People v. Haley (2004) 34 Cal.4th 283, 312.) In light of our above analysis, there was, as a matter of law, no substantial evidence that appellant transported marijuana in violation of Health and Safety Code section 11360, subdivision (a), or transported not more than 28.5 grams of marijuana in violation of subdivision (b), as a lesser offense of subdivision (a) or otherwise.
The fact that, in the present case, transportation and sale were alleged in the same count while, in Roberts, the transportation and sale were alleged in different counts, is a distinction without a difference. In the present case and Roberts, separate offenses were alleged, i.e., transportation and sale. In the present case and Roberts, the evidence presented at trial established the transportation was incidental to the sale. In both cases, the evidence established that only one offense was committed: an illegal sale. Appellant concedes, “ ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ (People v. Shirley (1982) 31 Cal.3d 18, 70.).” That rationale supports the trial court’s partial granting of appellant’s motion, whether the transportation and sale were alleged in the same or different counts.
The trial court properly ruled when it partially granted appellant’s motion for a judgment of acquittal. Moreover, the trial court did not err by failing to instruct sua sponte on a violation of Health and Safety Code section 11360, subdivision (b) as a lesser included offense of subdivision (a). Further, because as a matter of law there was no substantial evidence of the purported lesser offense, appellant could not properly have argued to the jury that he committed it. (Cf. People v. Ponce (1996) 44 Cal.App.4th 1380, 1383-1390.) No error, in violation of appellant’s right to present a defense, right to the effective assistance of counsel, or otherwise, occurred.
Since we have concluded appellant was acquitted of transporting marijuana in violation of Health and Safety Code section 11360, subdivision (a), we agree with respondent that appellant’s appeal on this issue is barred by Penal Code section 1118.2, and that, based on the doctrine of invited error, appellant is estopped from asserting that the trial court erred by partially granting his Penal Code section 1118.1 motion because appellant’s own conduct in making the motion induced the alleged error. (See People v. Delgado (1973) 32 Cal.App.3d 242, 254.) Moreover, even if the trial court’s partial granting of appellant’s motion and failure to instruct on the purported uncharged lesser included offense were not justified on the ground the transportation was incidental to the sale, the trial court still did not err. Where, as here, the trial court granted appellant’s section 1118.1 motion as to transporting marijuana in violation of Health and Safety Code section 11360, subdivision (a) and remained silent as to whether the acquittal included the lesser included offense, the acquittal is deemed to have included the lesser included offense. (People v. McElroy (1989) 208 Cal.App.3d 1415, 1422-1424.) It follows the court need not have instructed the jury on the alleged lesser offense, since the acquittal decided the issue on its merits.
2. The Trial Court Did Not Err by Failing to Instruct Sua Sponte on Entrapment.
Appellant claims the trial court violated his federal constitutional rights to present a defense and to the effective assistance of counsel by failing to instruct sua sponte on entrapment. We reject the claim. In People v. Barraza (1979) 23 Cal.3d 675 (Barraza), the Supreme Court held that the “proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law abiding person to commit the offense?” (Id. at pp. 689-690, italics added, fn. omitted.)
Appellant argues he had been with only two women in the previous nine months, he was led to believe he would be able to get Castillo’s phone number “to please her later, if he would help her out, ” and Castillo enticed him to commit the present offense. We have recited the pertinent facts in our Factual Summary. There is no substantial evidence to support appellant’s argument. The present case involved merely a garden variety sale of marijuana to a police agent. Castillo engaged in no impermissible conduct. The trial court did not err, constitutionally or otherwise, by failing to give sua sponte an entrapment instruction, because there was no substantial evidence to support such an instruction. (Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1152; People v. Flores (1979) 92 Cal.App.3d 461, 467; see Barraza, supra, 23 Cal.3d at pp. 689-690.)
Appellant claims the cumulative effect of the alleged errors he discusses in his first three contentions mandates reversal of the judgment. We conclude there was no error to accumulate.
3. The Trial Court Properly Denied Appellant’s Romero Motion, and His Sentence Was Not Cruel or Unusual Punishment.
a. Pertinent Facts.
The information alleged the present offense and that appellant suffered three prior felony convictions under the “Three Strikes” law and 10 prior felony convictions for which he served a separate prison term. The probation report reflects appellant was born in May 1955, from 1978 through 2006 he suffered a total of 24 convictions and, based on some of them, he served a total of 10 prison terms. Because his convictions are numerous, we list them in the footnote below.
As noted below, during appellant’s 2009 sentencing hearing, appellant indicated he was 50 years old and the court noted appellant was born in 1959.
Below we give the year of appellant’s prior conviction, the offense, and, in parentheses, the case number, disposition, and whether, in the present case, said prior conviction served as a strike (hereafter, “S”) and/or as a basis for a Penal Code section 667.5, subdivision (b) prior prison term (hereafter “PT”) enhancement: 1978, receiving stolen property (case No. XEA M84954; one year formal probation); 1978, carrying a loaded firearm in public (case No. M85617; three years formal probation); 1978, receiving stolen property (case No. POM M86660; three years formal probation); 1979, petty theft (case No. M94858; local custody term); 1980, reckless driving and driving under the influence of narcotics (case No. POM M98898; local custody term); 1980, burglary (case No. A525941; two years prison; PT); 1980, assault with a deadly weapon (case No. A526202; three years prison; S & PT); 1982, burglary (case No. POM M111112; two years probation & local custody term); 1983, use, or being under the influence, of narcotics (case No. M118754-01; two years probation & local custody term); 1984, a violation of Health and Safety Code section 11550, subdivision (b) (case No. POM M121049-01; local custody term); 1985, possession of narcotics (case No. POM M129844-01; two years probation & local custody term); 1985, petty theft (case No. POM M130826-01; local custody term); 1985, forgery (case No. A535402; two years prison; PT); 1987, receiving stolen property (case No. A796550; three years prison; PT); 1989, unauthorized taking of a vehicle (unknown case No.; two years probation & local custody term); 1989, transportation and/or sale of a controlled substance (case No. KA001876; three years prison; PT); 1992, possession of items with intent to forge (case No. RCR 20715; 16 months prison; PT); 1993, two counts of second degree robbery (case No. BA075737; 15 years prison; two S & one PT); 1993, possession of narcotics (case No. BA082963; three years prison; PT); 2001, possession of narcotics (case No. BA214756; six years prison; PT); 2006, possession of not more than 28.5 grams of marijuana (case No. COM R311083-1900; fine); 2006, possession of narcotics (case No. XSO NA071441-01; 32 months prison; PT).
At the August 12, 2009 court trial on the prior conviction allegations, the court found true (as indicated in footnote 11, ante) that appellant suffered three prior felony convictions under the Three Strikes law and 10 prior felony convictions for which he served separate prison terms.
At the September 8, 2009 sentencing hearing, appellant made an oral Romero motion. Appellant asked the court to strike his “strikes.” Appellant argued his strikes were remote and the robbery strikes arose from the same case. Appellant then asked the court to strike “the” strike because the present offense did not involve weapons, it was not a crime of violence, no one had been hurt, and the present offense was not a “true third strike case.”
The court later stated, “The motion under Romero to strike the strikes is respectfully denied. I consider the age of the strikes. In this particular case, however, I also consider the criminal history of the defendant.” After summarizing appellant’s criminal history, the court stated, “And at the time that he committed this crime he was on... parole for a conviction on January 17, 2007.... I think that he has a substantial criminal history, based upon Romero and [its] progeny. It does not look like he is going to be able to live a law-abiding future.”
The court sentenced appellant to prison for 25 years to life for the present offense, based on the Three Strikes law. The court stated it was striking the alleged Penal Code section 667.5, subdivision (b) enhancements based on the prosecutor’s argument. The court later indicated the fact appellant was 50 years old was not mitigating because he “should have known better.”
b. Analysis.
Appellant claims the trial court erroneously failed to dismiss his strikes. We disagree. The court presided at appellant’s trial and at his court trial on the prior conviction allegations. The court heard argument of counsel on appellant’s Romero motion. We have considered appellant’s arguments here as well as the trial court’s efforts to determine, during appellant’s argument on the Romero motion, exactly what sentence appellant proposed that the trial court impose.
In light of the nature and circumstances of appellant’s current offense and the strikes, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the strikes, and may not be treated as though he previously had not suffered them. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161-164 (Williams).) The mere age of the strikes did not require the trial court to strike them, particularly where, as here, appellant did not live a legally blameless life after his commission of the offenses underlying the strikes, but before his commission of the present offense. (Cf. People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) We hold the trial court’s order refusing to strike appellant’s strikes was sound, and not an abuse of discretion. (Cf. Williams, supra, at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.)
Appellant also claims his sentence constituted cruel and unusual punishment under the federal and California Constitutions. He indicates he is aware of recent United States Supreme Court decisions (Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166], and Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179]) holding a prison sentence of 25 years to life for a nonviolent theft offense was not cruel and unusual punishment, but he also indicates he disagrees with those decisions.
However, we have set forth the pertinent facts. We conclude appellant’s sentence did not violate constitutional proscriptions against cruel or unusual punishment. (Cf. People v. Romero (2002) 99 Cal.App.4th 1418, 1421-1433; People v. Mantanez (2002) 98 Cal.App.4th 354, 358-367; People v. Ayon (1996) 46 Cal.App.4th 385, 396-401; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828; People v. Ingram (1995) 40 Cal.App.4th 1397, 1412-1417; Lockyer v. Andrade, supra, 538 U.S. at pp. 70-77; Ewing v. California, supra, 538 U.S. at pp. 20-31.)
4. Appellant Must Pay Additional Penalties and a Surcharge.
The trial court imposed a $50 Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee. However, respondent correctly claims the trial court erroneously failed to impose upon that fee: (1) a $50 Penal Code section 1464, subdivision (a)(1) state penalty (People v. Taylor (2004) 118 Cal.App.4th 454, 456 (Taylor), (2) a $35 Government Code section 76000, subdivision (a)(1) penalty (Taylor, at p. 456), (3) a $10 Penal Code section 1465.7, subdivision (a) state surcharge (Taylor, at p. 457), and (4) a $15 Government Code section 70372, subdivision (a) state court construction penalty (People v. McCoy (2007) 156 Cal.App.4th 1246, 1254). We will modify the judgment accordingly.
DISPOSITION
The judgment is modified by imposing the penalties and surcharge specified in the preceding paragraph and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modifications.
We concur: CROSKEY, Acting, P. J., ALDRICH, J.