Opinion
D056821Super. Ct. No. FSB800289D057432
05-20-2011
THE PEOPLE, Plaintiff and Respondent, v. RAY SEAN GEORGE, et al., Defendant and Appellant. In re KENYATTA JOMO CAMPBELL on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
CONSOLIDATED APPEAL from judgments of the Superior Court of San Bernardino County, Bryan Foster, Judge, and petition for writ of habeas corpus. As to Ray George, judgment affirmed as modified with directions. As to Kenyatta Campbell, judgment affirmed and petition denied.
A jury convicted Ray George and Kenyatta Campbell of possession of marijuana for sale, possession of MDMA (ecstasy) for sale, and possession of a firearm by a felon, with true findings on gang and other enhancements. Campbell challenges the judgment on grounds of ineffective representation based on counsels failure to renew a suppression motion. Defendants raise several instructional errors, and challenge the sufficiency of the evidence to support the MDMA possession for sale conviction and the gang enhancements. They also argue improper curtailment of cross-examination of a witness, and two sentencing errors.
George raised some of these arguments and Campbell raised others. Campbell includes an argument joining in Georges arguments. We will assume George also joins in Campbells arguments. For simplicity, we primarily describe the arguments as raised by "defendants" collectively, except for the sentencing contentions which apply solely to George.
The Attorney General concedes one sentencing error concerning George. Apart from this error, we find no reversible error. With respect to George, we modify the judgment to correct the sentencing error and, as so modified, affirm the judgment. With respect to Campbell, we affirm the judgment. We deny the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
The offenses were based on the police discovery of marijuana, MDMA, and guns at an apartment occupied by Campbell, George, and a third defendant, Roderick Mitchell. Defendants are members of the East Coast Crips gang, which engages in drug sales as one of its primary activities, including the sale of marijuana, MDMA, cocaine base and PCP.
Mitchell is not a party on appeal. For convenience, we at times include Mitchell when referring to "defendants."
The discovery of the contraband occurred on January 16, 2008, after the police went to an apartment rented by Campbell in response to a request by Child Protective Services (CPS) to check on the welfare of two young children reported to be at the apartment where there were guns and drug usage. When the police arrived at the apartment shortly after 10:16 a.m., Campbell and Mitchell were in the living room, and George was lying on a mattress in the northeast bedroom. There were three bedrooms in the residence. When interviewed by the police, defendants stated that George stayed in the northeast bedroom, Campbell stayed in the northwest bedroom, and Mitchell stayed in the southwest bedroom.
The police did not find the children at the apartment, but they observed marijuana and indicia of drug sales in plain view. Based on these observations, the police obtained a search warrant, searched the apartment, and found numerous other items reflecting drug sales.
In the northeast bedroom used by George, the police found about four and one-quarter pounds of marijuana that appeared to be packaged for sale. There was a shoebox on the floor containing empty plastic baggies and about 20 "nickel bags" of marijuana which would sell on the street for about $5.00 each. Forensic testing showed Campbells fingerprints on the outside of the shoebox and on an empty baggie inside the box. Next to the shoebox there was a backpack containing a loaded revolver and about two pounds of marijuana in 13 bags of essentially the same size and weight, which appeared to be packaged for sale to dealers. In the closet of the northeast bedroom, the police found six bullets that fit the gun in the backpack; three envelopes addressed to George; and a dry cleaning receipt with Georges name on it attached to a bag containing dress clothes.
In the common areas of the apartment, the police found a smaller amount of marijuana and some MDMA. On the kitchen table there was a small baggie containing marijuana and seeds, and small pieces of marijuana scattered about the table as if someone had cut marijuana on the table. There were two black plastic bags containing marijuana, one on a barstool by the table and the other on a kitchen counter by the stove. In kitchen drawers, there were three weighing scales, numerous baggies in a box, and loose marijuana in a dominos game lid. It appeared that marijuana had been cut for packaging in the kitchen. On top of a stereo cabinet in the living room, there were two baggies of marijuana in a small shoebox and about 15 MDMA pills in a jewelry box.
In the northwest bedroom used by Campbell, there was a small baggie containing marijuana on top of a television. There was a loaded semiautomatic gun between the mattress and box springs of the bed in the room. Right next to the gun, there were several papers, including a gas bill with Campbells name on it and the apartments address.
In Mitchells pockets, the police found an MDMA tablet and $580 cash, including numerous bills in small denominations. George had $280 dollars in his possession, also including small denominations. Campbell had three cell phones in his pockets.
Mitchell had two $100 bills, eight $20 bills, six $10 bills, 27 $5 bills, and 27 $1 bills. George had ten $20 bills, two $10 bills, nine $5 bills, and fifteen $1 bills.
A heavy odor of unburned marijuana permeated the entire apartment. Prosecution experts opined that the marijuana found in the apartment was possessed for sale based on the large amount, the indicia of packaging activity in the kitchen, the type of packaging, the scales, the guns, the cell phones, and the currency. The combined weight of all the marijuana was about four and one-half pounds, which had a street value of about $2,000 if sold in nickel bags. The other indicia of sales included the firearms which dealers generally carry to protect themselves; the small denominations of cash used for sales transactions; and the multiple cell phones on one person to conduct business. There was no marijuana smoke in the apartment, no "joints" lying around, and no drug paraphernalia typically possessed by personal users. A prosecution witness opined that the MDMA (which had a street value of about $20 per pill) was also possessed for sale because of the large quantity of pills, the firearms, and the cash.
Mitchell told the police that all the contraband in the apartment was his and that he was selling drugs. Campbell and George denied ownership of the contraband, except for the marijuana on top of the television in the northwest bedroom which Campbell told the police belonged to him.
The prosecutions theory was that all three defendants were engaged in a joint drug sales operation on behalf of their gang. Mitchell testified at trial, again claiming that virtually all the contraband was his, but stating that he did not possess the drugs for sale.Mitchell, age 22, was younger than Campbell (age 32) and George (age 37), and (unlike Campbell and George) did not have gang-related tattoos that are earned by "putting in work" for the gang. A prosecution expert testified that in the gang culture younger gang members can be expected to keep the older gang members out of trouble by taking the blame for offenses when they are caught by the police.
Mitchell testified the only marijuana that was not his was the baggie found on the television in the northwest bedroom; the smaller amounts of marijuana at the residence were for his personal use; he was holding the packaged marijuana in the backpack and shoebox for a friend to whom he was going to return it; he separated and placed the marijuana into the nickel bags at his friends request; and someone gave him the MDMA pills for his personal use.
The charges against defendants included (1) possession of marijuana for sale, with a gang enhancement allegation, and (2) possession of MDMA for sale, with a gang enhancement allegation and an allegation that the offense was committed within 1,000 feet of an elementary school. Additionally, George and Campbell were charged with possession of a firearm by a felon. The jury found defendants guilty of these charges.
All three defendants were sentenced to a two-year term for the MDMA possession for sale offense (see fn. 6, post), plus a three-year term for the gang enhancement. George and Campbell received an eight-month sentence for possession of a firearm by a felon. George received a four-year sentence for the elementary school allegation, whereas the court struck this allegation for Campbell and Mitchell because they had admitted guilt early in the proceedings. Campbell received a three-year sentence for a prior drug-related conviction enhancement and two years for two prior prison term enhancements, and George received three years for three prior prison term enhancements. Sentences on the remaining counts and allegations were imposed concurrently or stayed. Georges total sentence was 12 years 8 months; Campbells total sentence was 10 years 8 months; and Mitchells total sentence was five years.
As we shall discuss below, Campbell and Mitchell wanted to accept a plea bargain offer but were prevented from doing so because it was a package offer for all three defendants and George did not want to accept it.
In its oral imposition of sentence for George and Campbell, the court selected the possession of marijuana for sale charge (count 1) as the principal term, and for Mitchell selected the possession of MDMA for sale charge (count 2) as the principal term. For George, the court then imposed the elementary school enhancement (Health & Saf. Code, § 11353.6, subd. (b)) on the count 1 marijuana charge; this was incorrect because this enhancement applied only to the count 2 MDMA charge. This error was corrected in the minute order, which makes the sentence on the MDMA count 2 the principal term for all three defendants; makes the marijuana count 1 concurrent for all three defendants; for George imposes the sentence on the elementary school enhancement on the MDMA count 2; and for Campbell and Mitchell strikes the elementary school enhancement on the MDMA count 2.
DISCUSSION
I. Claim of Ineffective Assistance of Counsel Based on Failure to Renew Suppression Motion
Prior to trial, Campbell (joined by codefendants) filed a Penal Code section 1538.5 (§ 1538.5) motion to suppress the evidence acquired after entry into the apartment, arguing the warrantless entry into the apartment was illegal. As we shall detail below, at the section 1538.5 hearing Officer Edward Golubic testified that Campbell permitted him to enter, whereas Campbell testified that he told the officer he could not enter. The trial judge presiding at the section 1538.5 hearing (Judge Douglas Gericke) denied the suppression motion, crediting the officers claim of consent.
At trial, Mitchell testified that Campbell did not give consent, stating that Campbell told the officer not to come in but the officer "forced his way in there."
On appeal, defendants assert counsel provided ineffective representation by failing to renew the suppression motion before the trial judge (Judge Bryan Foster) because the failure to do so forfeited the issue on appeal (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Garrido (2005) 127 Cal.App.4th 359, 363-364), and Mitchells testimony could have been presented to corroborate Campbells claim that he refused the officers request to enter. To further support the claim of ineffective representation, Campbell has filed a petition for writ of habeas corpus which includes a declaration from a woman (Latrisha Woods) who was at the apartment at the time of the police entry. Woods declares that she was never contacted by the defense prior to trial, and she would have testified that the officer forced his way into the apartment.
In her habeas declaration, Woods states that when the officer told Campbell they were looking for two children, Campbell responded that there were no such children at the apartment and they must have the wrong apartment. The officer then twice asked, "Do you mind if I look?" and Campbell did not answer. The second time he asked, the officer "at the same time entered the apartment. Campbell appeared to be in fear of the officer as the officer was acting aggressively as he forced his way into the apartment."
We hold the record shows as a matter of law that the community caretaking exception to the warrant requirement justified the police entry; i.e., the police could properly enter the apartment without a warrant or consent in order to check on the welfare of children pursuant to a CPS report. Thus, regardless of how the trial judge might have ruled on a defense claim of no consent at a renewed suppression motion, there is no reasonable probability the outcome would have been more favorable to defendants given the lawfulness of the search under the community caretaking exception. Accordingly, Campbell has not carried his burden to show ineffective representation.
Section 1538.5 Suppression Proceeding
In his section 1538.5 motion to suppress, Campbell argued the police entry into his apartment was illegal because it was without a warrant, without exigent circumstances, and without his voluntary consent. In opposition, the prosecution asserted the entry was legal because Campbell had consented, and alternatively the police could lawfully enter without consent and without a warrant because they were at the residence to check on the welfare of two children based on a CPS report.
At the section 1538.5 hearing, Officer Golubic testified that he went to the residence in response to a call from CPS requesting that the police check on the welfare of two children at the residence (M.M. and K.G.) based on a report that there were guns and drug usage at the residence. When Officer Golubic arrived at the residence, Campbell was in the doorway with Mitchell talking to a third male who was outside the apartment. Upon seeing Officer Golubic, Campbell and Mitchell went inside the residence and the third man left.
Officer Golubic knocked on the door and heard "scurrying" motions inside. Officer Golubic knocked a second time and Campbell opened the door. When Campbell opened the door, Officer Golubic noticed a faint odor of marijuana. Officer Golubic explained to Campbell that he was responding to a CPS request to check on the two children based on a report that there were guns and drugs at the residence. Campbell responded that the children were not there and he did not know who they were. Officer Golubic told Campbell that he knew Campbell had a son and asked where he was.Campbell stated his son was not there.
About two months earlier Officer Golubic had been to the residence to investigate a domestic problem between Campbell and his girlfriend, and on this previous occasion Campbells son was at the apartment.
Thinking that the two children identified by CPS could be Mitchells children or the children of Campbells ex-girlfriend, Officer Golubic again informed Campbell "why [he] was there and why [he] needed to look." On cross-examination Officer Golubic acknowledged that he "[b]asically" was "insistent that [he] needed to come in" based on the CPS report that there were drugs being used in the residence with children. In response to Officer Golubics repeated requests to enter, Campbell "backed up against the door, which pushed it open" and gestured with his hand for the officer to come in. Officer Golubic testified that Campbell did not do anything "negative" indicating that he should not come in, and he interpreted the hand gesture to mean he could enter.
Officer Golubic also testified that he arrived at the residence with the intent to obtain consent to enter; he did not view the faint odor of marijuana when the door was opened as sufficient to permit entry without consent; and he perceived his entry as consensual.
After entering the apartment, Officer Golubic inspected the three bedrooms and found no children. While Officer Golubic was conducting his inspection, CPS worker Mike Lee also arrived at CPSs request. Because he had seen marijuana and indicia of sales in plain view during his inspection of the apartment, Officer Golubic detained Campbell and the others who were at the residence, and requested that a narcotics officer be sent. No further search was conducted until the narcotics officer obtained a search warrant.
Disputing Officer Golubics claim of consent, Campbell testified at the section 1538.5 hearing that when Officer Golubic told him he was there to check on the welfare of two children and asked if he could enter, Campbell told him those children did not stay there; Officer Golubic could check with the manager about the two children; and "no" he could not enter. Campbell denied that he made a gesture indicating Officer Golubic could enter. Campbell testified that he repeatedly asked Officer Golubic for a search warrant, and Officer Golubic stated he did not need one. When Campbell was standing by the open front door, there was enough room for Officer Golubic to come in, and Officer Golubic ignored Campbells explicit refusal of entry and just walked in.
Campbell also claimed that although Officer Golubic stated he was looking for children, he went to the kitchen and searched through the kitchen drawers.
After the completion of the testimony at the section 1538.5 hearing, Campbells counsel argued that Campbells version of the entry made more sense, explaining: "[I]f a police officer is sent to check on the welfare of two small children and the reason is because of drugs and guns, I think that hes going to probably complete that investigation . . . . Hes going to go in and see if the children are there. And I think that he probably would have a duty to do that. . . ." Joining in the motion, Mitchells counsel argued there was no reasonable basis to believe that the two children were at that apartment, noting that Campbell told the officer the children did not live there.
The prosecutor argued that the court should discredit Campbells claim of no consent. Moreover, regardless of consent, the prosecutor asserted the entry was justified by exigent circumstances in that the officer was sent to investigate possible danger to children; he smelled marijuana upon his arrival; and "he did what any officer should do" by going in, conducting a protective sweep, freezing the premises, and contacting an officer to secure a search warrant.
The trial court denied the suppression motion, crediting Officer Golubics claim that Campbell made a gesture giving him consent to enter.
Analysis
To show ineffective representation defendant must establish that counsels performance fell below an objective standard of reasonableness and that there is a reasonable probability that absent counsels deficiency the result would have been different. (People v. Weaver (2001) 26 Cal.4th 876, 925.) If the record does not show prejudice from counsels alleged deficiency, we may reject the claim without determining whether counsels performance was deficient. (People v. Sapp (2003) 31 Cal.4th 240, 263.) Here, Campbells ineffective representation claim fails for lack of prejudice.
A warrantless entry into a home to conduct a search and seizure is presumptively unreasonable under the Fourth Amendment, and the government bears the burden of establishing that an exception to the warrant requirement justified the entry. (People v. Rogers (2009) 46 Cal.4th 1136, 1156.) An exception permitting warrantless entry into a home applies when the police are engaging in "community caretaking" functions. (People v. Ray (1999) 21 Cal.4th 464, 476-478.) The community caretaking exception arises when the facts show a need to inspect for a potentially dangerous situation; i.e., when entry is " reasonably necessary to ascertain whether someone is in need of assistance . . . . " (Id. at p. 477.) "The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions?" (Id. at pp. 476-477.)
In response to a CPS request, the police went to defendants residence to check on the welfare of two children due to a report of the presence of drugs and guns. The arrival of the CPS worker at the same address corroborated that the police were legitimately at the residence in response to a CPS request. CPS is an arm of the government charged with the responsibility of protecting children. When Campbell opened the door, the police smelled marijuana, which supported the report of drug usage. Although Campbell told the police there were no children at the residence, the police had no way of verifying this without entering. If the police had failed to enter the residence to check on the safety of the children as requested by CPS, they would have been derelict in their duties. (See Schreiber v. Moe (W.D. Mich. 2006) 445 F.Supp.2d 799, 810["The duty to investigate a threat to a minor and, if necessary, to protect that child, on the part of the police is unquestionable"]; People v. Miller (1999) 69 Cal.App.4th 190, 198200; United States v. Bradley (9th Cir. 2003) 321 F.3d 1212, 1214-1215.) Indeed, Campbells counsel recognized this in his arguments at the section 1538.5 hearing. Mitchells counsel also appeared to understand this when he argued to the court that the search should not be upheld on the basis of the CPS request because Campbell told the police the children did not live there. The police were not required to accept Campbells claim that the children were not there, but were entitled to enter the residence to confirm this.
Contrary to defendants suggestion on appeal, Officer Golubic did not testify that he went to the residence to investigate a report of drug usage and guns as part of a criminal investigation. The record shows the police went to the residence to check on the welfare of children in response to a CPS request. Notably, after observing the indicia of drug sales in plain view, the police obtained a search warrant before conducting a full search of the residence. In Ray, the court recognized that the police may uncover evidence of a crime when exercising their community caretaking functions (for example, when entering a residence to inspect for a potential victim of a burglary), but this does not transform their conduct into an entry for a criminal investigatory purpose. (People v. Ray, supra, 21 Cal.4th at p. 476, fn. 4.)
Reversed on other grounds in Schreiber v. Moe (6th Dist. 2010) 596 F.3d 323, 335.
Because the record shows a lawful entry under the community caretaking exception to the warrant requirement, there is no reasonable probability the outcome would have been different had counsel renewed the suppression motion. Accordingly, the claim of ineffective representation is unavailing.
We note that the prosecutor referred to the "exigent circumstances" exception when arguing to the trial court that the police had a right to enter without a warrant or consent based on the CPS request, and the trial court did not explicitly rule on this argument when denying the suppression motion. In Ray, a plurality of the California Supreme Court stated that the exigent circumstances exception applies to police activity that involves investigation of crime, whereas the community caretaking exception focuses on police activity that involves the protection of persons or property. (People v. Ray, supra, 21 Cal.4th at pp. 471, 473, 476, fn. 4.) A CPS child welfare request falls into the latter category. In any event, the factual basis for the community caretaking exception was sufficiently developed at the suppression hearing to permit us to resolve the ineffective representation claim on this ground as a matter of law. (See id. at p. 470, fn. 2.)
II. Instructional Issues
Defendants argue the trial court (1) should have sua sponte instructed on aiding and abetting principles for the drug and gun possession offenses, (2) erred in refusing to give a pinpoint instruction concerning the insufficiency of mere presence to establish guilt of these offenses, and (3) should have sua sponte given a unanimity instruction concerning the marijuana possession for sale offense. We independently review these claims of instructional error. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
A. Failure to Instruct on Aiding and Abetting
A trial court must sua sponte instruct on general principles of law that are closely and openly connected to the facts and necessary to the jurys understanding of the case. (People v. Johnson, supra, 180 Cal.App.4th at p. 707.) Defendants assert the jury could have found them culpable for aiding and abetting a codefendants possession of the drugs or firearms, and without aiding and abetting instructions the jury would not have known that they could not be found guilty unless they had the intent to facilitate the crimes.
As defendants recognize, the prosecution did not present the theory that culpability could be based on an aiding and abetting theory. Rather, the instructions and arguments were all premised on defendants culpability as perpetrators. The jury was told that to find defendants guilty, the prosecution must prove that defendants actually or
constructively possessed the drugs or guns with the requisite state of mind. Absent instructions or argument on aiding and abetting, there was no basis for the jury to think it could find guilt on an aiding and abetting theory, and no danger the jury would incorrectly evaluate the state of mind required for aiding and abetting.
For the offenses of possession of marijuana or MDMA for sale, the jury was instructed that the defendant must have possessed a controlled substance, known of its presence, known it was a controlled substance, and intended to sell it. For the offense of possession of a firearm by a felon, the jury was instructed that the defendant must have possessed the firearm and known that he possessed it. Concerning the possession element for these offenses, the jury was told that the defendant need not actually hold or touch the object, and that it was enough if the defendant had control over it or the right to control it. (See CALCRIM Nos. 2352, 2302, 2511.)
To support their contention that aiding and abetting instructions were required, defendants cite People v. Lizarraga (1990) 219 Cal.App.3d 476. In Lizarraga, the appellate court found reversible error because the jury was instructed on aiding and abetting (apparently based on the theory that the defendant provided a location for drug sales activity), and the jury also received instructions that could have misled it to believe the defendant could be guilty based solely on knowledge of the activity without the intent to encourage the offense. (Id. at pp. 480-481.) In contrast here, the jury was not provided any instructions that permitted it to premise culpability on aiding and abetting.
To the extent defendants suggest aiding and abetting culpability may be premised on a finding of constructive (rather than actual) possession based on control or the right to control the contraband, this contention is unavailing. If defendants constructively possessed the drugs and guns, they satisfied the possession element of the drug and gun possession offenses (see In re Daniel G. (2004) 120 Cal.App.4th 824, 831), and their guilt would be premised on their status as perpetrators, not aiders and abettors. Further, once the jury found constructive possession, it would know from the instructions that to find defendants guilty of the possession offenses it had to evaluate whether the prosecution had proven the other elements of the offenses, including the requisite knowledge and/or intent.
There was no error from the failure to instruct on aiding and abetting.
B. Refusal to Instruct that Mere Presence Is Not Enough To Show Guilt of Possession Offenses
At trial Mitchells counsel requested that the court instruct the jury on the concept that "mere presence and mere knowledge does not make a person guilty of a crime," arguing that the jury might improperly find guilt based on "the fact that a person is being accused of living in the house and drug dealing going on." The trial court denied the request, reasoning that defense counsel could argue this point, but a pinpoint instruction was not warranted. The court noted that when the jury was instructed on the elements of the offenses, it would be told that the defendant must have possession.
On appeal, defendants contend that based on the request for a pinpoint instruction, the court should have instructed the jury that mere presence at a place where drugs or guns are found was insufficient to establish the drug and gun possession offenses.
Because Mitchells counsel was the only one to request the pinpoint instruction, the Attorney General asserts the issue has been forfeited on appeal. Given our holding that there was no prejudicial instructional error, we need not address this forfeiture contention.
A defendant is entitled upon request to an instruction that accurately states the law and pinpoints the theory of defense. (People v. Hughes (2002) 27 Cal.4th 287, 361; People v. Adrian (1982) 135 Cal.App.3d 335, 339.) The courts have observed that mere presence in or access to a place where drugs are found is not alone enough to establish possession. (People v. Redrick (1961) 55 Cal.2d 282, 285; People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) However, the courts have also recognized that presence and access are relevant factors to consider, and that "no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence" of a defendants knowledge and possession of drugs found in a place where the defendant has nonexclusive access and control. (People v. Redrick, supra, 55 Cal.2d at p. 287; see People v. Harrington (1970) 2 Cal.3d 991, 998; People v. Kanos (1971) 14 Cal.App.3d 642, 652 ["possession may be imputed where the contraband is found in a location which is subject to joint dominion and control of the accused and another"].) A pinpoint instruction narrowly focusing on the mere presence concept omits the concept that presence and/or access is a relevant factor to consider when deciding possession. Although the trial court may not have erred had it given a pinpoint instruction on the mere presence concept (see, e.g., People v. Mardian (1975) 47 Cal.App.3d 16, 47, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1123, fn. 1), the court was not required to give it because it included only a partial explanation of the principles governing the factor of presence in possession cases (see People v. Cook (2007) 40 Cal.4th 1334, 1362).
Alternatively, even if the trial court should have given a pinpoint instruction concerning mere presence, there was no prejudice under any standard of review. (See People v. Earp (1999) 20 Cal.4th 826, 887; People v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16, 886-887.) When the jury was instructed on the elements of the possession offenses it was told that the person must have possessed the object; possession did not require that the person "actually hold or touch" the object; and that possession was shown "if the person has control over it or the right to control it, either personally or through another person." (See CALCRIM No. 2352.) Because the jury knew from this instruction that the defendant must either actually be holding or have the right to control the drugs and guns, no reasonable jury would have thought that the possession element for these offenses could be satisfied by mere presence in the place where the drugs and guns were found. (See People v. Montero (2007) 155 Cal.App.4th 1170, 1180 [based on possession instruction stating that defendant must have control over substance, "[n]o reasonable juror would have believed that proximity alone equaled control"]; People v. Mendoza (1986) 183 Cal.App.3d 390, 399-400.) Further, in closing arguments to the jury, counsel addressed at length the issue of whether the prosecution had proven that each defendant had knowledge of and the right to control the drugs and/or guns. It is clear the jury understood mere presence at the apartment was insufficient to show guilt of the possession offenses.
There was no prejudicial instructional error arising from the refusal to give a pinpoint instruction on mere presence.
C. Failure to Give Unanimity Instruction for Marijuana Count
Defendants argue that because there were several items of marijuana found in the apartment and multiple persons who could have possessed different items, the trial court had a sua sponte duty to give a unanimity instruction with respect to the charge of possession of marijuana for sale.
A defendants constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.)
"[I]n a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant," a unanimity instruction is required. (Peoplev. King (1991) 231 Cal.App.3d 493, 501.) On the other hand, "where criminal acts are substantially identical in nature so that a juror who believed one act took place would inexorably believe all acts took place, the unanimity instruction is not necessary for the jurys resolution of the case." (Ibid.) In King, the court concluded a unanimity instruction was required because the contraband was separated by space (found in different locations at a house) and there was conflicting evidence as to the ownership of the narcotics. (Id. at pp. 499, 501; accord People v. Castenada (1997) 55 Cal.App.4th 1067, 1071 [unanimity instruction required because of separate defenses to distinct drug items].)
Here, the evidence showed that defendants were occupying a home containing multiple items of marijuana. There was a conflict in the evidence concerning who owned the different items, and whether the different items were for sale or personal use. Arguably, jurors could have relied on different items of marijuana to conclude a defendant committed the offense of possession of marijuana for sale.
Assuming arguendo a unanimity instruction should have been given, the error was not prejudicial even under the stricter harmless beyond a reasonable doubt standard for federal constitutional error. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 [discussing split of opinion concerning whether failure to give unanimity instruction is of federal constitutional dimension].) Under this standard, the "failure to give a unanimity instruction may be harmless error if we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense." (People v. Norman (2007) 157 Cal.App.4th 460, 466.)
Under the prosecutions theory, the defendants did not engage in distinct acts of possession of marijuana with intent to sell, but rather engaged in undifferentiated possession of marijuana and MDMA for purposes of a joint narcotics sales operation. The evidence supporting a drug sales operation included a gun and a large amount of marijuana packaged for sale in Georges bedroom; Campbells fingerprints on the shoebox in Georges bedroom containing the packaged nickel bags and on an empty baggie in that box; scales and indicia of marijuana packaging activity in the kitchen area; smaller amounts of marijuana in the kitchen, living room, and Campbells bedroom; a sizable amount of MDMA in the living room; cash in Georges and Mitchells pockets in denominations consistent with sales; a gun in Campbells bedroom; and three cell phones in Campbells pockets. Given the widespread and intermingled nature of the evidence showing narcotics sales activity, there is no reasonable possibility that if the jurors concluded a defendant was selling marijuana, some jurors might have found the defendant had the right to control only some of the items of marijuana for sale but not other items.
Further, the jurors found all three defendants guilty of possessing marijuana for sale. Given this finding, and the pervasive nature of the indicia of sales activity at the apartment, we are satisfied beyond a reasonable doubt that the jury was persuaded by the prosecutions theory that defendants were selling marijuana together. Based on a finding of a joint sales operation, the jurors must have unanimously agreed that each defendant had the right to control all the marijuana used in the sales operation.
Assuming a unanimity instruction should have been given, the error was not prejudicial.
III. Challenges to Sufficiency of the Evidence
Defendants challenge the sufficiency of the evidence to support findings that (1) they possessed MDMA, (2) MDMA is a controlled substance, (3) the offenses were gang related, and (4) their gang is a criminal street gang.
In considering a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) We presume every fact in support of the judgment that the jury could reasonably deduce from the evidence, and affirm if the circumstances reasonably justify the jurys findings even if the circumstances might also support a contrary finding. (Id. at p. 60.)
With this standard in mind, we consider defendants various challenges to the sufficiency of the evidence.
A. Evidence of Possession of MDMA
Defendants argue there is insufficient evidence to show that they possessed MDMA. Based on constructive possession principles, a defendant is culpable for possession of drugs if he or she had control or the right to control the drugs. (Inre Daniel G., supra, 120 Cal.App.4th at p. 831.) Possession may be established by circumstantial evidence, and exclusive possession of the premises where the drugs were found is not required. (People v. Kanos, supra, 14 Cal.App.3d at p. 652.) Possession may be imputed where the drugs are found in a location which is subject to the joint dominion and control of the defendant and another. (Ibid.)
The record shows that defendants were all East Coast Crips gang members staying together at an apartment where there was indicia of an active narcotic sales operation, including marijuana packaged for sale and weighing scales, guns, about 15 MDMA pills in a container in the living room, a significant amount of cash including small denominations in Mitchells and Georges pockets, and three cell phones in Campbells pockets. The prosecutions expert testified that the East Coast Crips gangs narcotics activity included MDMA sales, and that the sizable amount of MDMA pills reflected possession for sale. From this evidence, the jury could reasonably infer that defendants were conducting a narcotics sales operation at the apartment and that both marijuana and MDMA were being sold as part of this operation. This finding supports that defendants had the right to control (and hence possessed) the MDMA.
B. Evidence that MDMA Is a Controlled Substance
Defendants argue that the prosecution failed to establish that MDMA is a controlled substance.
Health and Safety Code section 11378 prohibits the possession for sale of "any controlled substance" specified in several statutes, including section 11055, subdivision (d). (§ 11378, subd. (5).) Section 11055, subdivision (d) lists controlled substances that are stimulants, including "methamphetamine, its salts, isomers, and salts of its isomers." (§ 11055, subd. (d)(2).) Further, section 11401, subdivision (a) provides that a "controlled substance analog" shall be treated the same as the controlled substance classified in section 11055. An analog is defined as a substance (1) that has a substantially similar chemical structure as the controlled substance, or (2) that has a substantially similar or greater stimulant, depressant, or hallucinogenic effect as the controlled substance. (§ 11401, subd. (b)(1), (2).)
Subsequent unspecified statutory references are to the Health and Safety Code.
The prosecutions criminalist expert (David Blackburn) testified that MDMA is an abbreviation of "methylenedioxymethamphetmine" and that it is a "relative of methamphetamine." When asked about the narcotic effect of MDMA, Blackburn explained: "MDMA has a unique narcotic effect in that it has a dual effect. A lot of drugs are either classified as a stimulant or a hallucinogen, but MDMA is unique in that it has both effects. It stimulates but has a mild hallucinogenic effect."
Blackburns testimony provides substantial evidence that MDMA qualifies as an analog to methamphetamine under section 11401, subdivision (b)(2) because it is a substance that has a substantially similar stimulant effect as methamphetamine. Blackburns testimony that MDMA is a relative of methamphetamine and that it operates as a stimulant supports that it mimics the stimulant effect of methamphetamine, albeit with an added hallucinogenic effect. (See People v. Becker (2010) 183 Cal.App.4th 1151, 1156; People v. Silver (1991) 230 Cal.App.3d 389, 392-393.) This was sufficient to qualify MDMA as a controlled substance.
Defendants argue that the information did not provide adequate notice that they could be convicted of MDMA possession under the analog definition of a controlled substance. Due process requires that defendants be advised of the charges against them so that they have a reasonable opportunity to prepare and present their defense and not be taken by surprise by the evidence offered at trial. (People v. Becker, supra, 183 Cal.App.4th at p. 1157.)
The information charged defendants with "POSSESSION FOR SALE OF A CONTROLLED SUBSTANCE, in violation of . . . section 11378 . . . to wit, MDMA." A similar due process argument was rejected in Becker, where the court concluded that the references in the information to ecstasy, section 11378, and controlled substance apprised the defendant that the prosecution would seek to prove that ecstasy was a controlled substance, and it was not necessary that the information allege that ecstasy was an analog of a controlled substance. (People v. Becker, supra, 183 Cal.App.4th at p. 1157.) We agree with Beckers holding. The informations allegation that MDMA is a controlled substance alerted defendants that they could be found culpable for possession of a controlled substance, which gave defendants notice that they should review the statutes relevant to the definition of a controlled substance, including section 11401s analog provision. People v. Becker, supra, 183 Cal.App.4th at p. 1157.) There was no lack of notice.
C. Evidence that Offenses Were Gang Related
Defendants argue there was insufficient evidence that the offenses were gang related rather than committed for personal reasons. (See fn. 17, post.) The gang enhancement applies to crimes that are "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b)(1).) To establish the enhancement, the crime must be gang related. (People v. Albillar, supra, 51 Cal.4th at p. 60.) "Not every crime committed by gang members is related to a gang"; for example, an offense committed by gang members as part of " a frolic and detour unrelated to the gang " is not gang related. (Id. at pp. 60, 62.) The gang-related requirement may be shown by evidence indicating that several defendants "came together as gang members" to commit the offense, or that the offense could benefit the gang by, for example, elevating the gangs or gang members status or advancing the gangs activities. (Id. at pp. 62-63, italics omitted; see People v. Gardeley (1996) 14 Cal.4th 605, 619.)
In Albillar (filed after briefing was completed in this case), the California Supreme Court clarified that the first prong of the gang enhancement provision (crime committed to benefit, at the direction of, or in association with the gang) requires a gang-related offense, but the second prong (specific intent) does not require a separate showing that the defendant intended to promote a gang-related crime. (People v. Albillar, supra, 51 Cal.4th at p. 67 [specific intent prong satisfied by showing that defendant had intent to promote any criminal conduct by gang members].) Based on Albillar, our response to defendants contention is focused on the first prong.
The prosecutions gang expert, Detective Travis Walker, opined that all three defendants were active gang members and that the narcotics and gun possession offenses were committed in association with and for the benefit of their gang. At the apartment the police found various papers reflecting gang involvement, including an invitation to a recent "Hood Day" for several subsets of the East Coast Crips gang; a paper with gang graffiti writing including a "roll call" of members by their gang monikers and words showing disrespect for another gang; and photographs of defendants making East Coast Crips gang symbols with their hands. When the police arrived at the apartment, all three defendants were wearing predominantly blue clothing, which is the color associated with the East Coast Crips. Campbell and George had numerous tattoos reflecting their East Coast Crips membership and the status they had earned within the gang.
Detective Walker testified that defendants drug-related offenses were committed to benefit the gang because narcotics trafficking allows the gang to obtain money to purchase additional narcotics to increase their "drug empire"; to gain control of neighborhoods; to obtain firearms; to recruit younger members to the gang; and to acquire status symbols for gang members such as expensive cars, clothing, and electronic equipment. Further, in the gang culture when a younger gang member takes the blame for offenses to protect older gang members, the younger member improves his status within the gang. Detective Walker stated that the possession of the firearms was for the benefit of the gang because it protected the gang members from being robbed and allowed them to engage in intimidation because they could inflict injury if they were "wronged or shorted."
The experts testimony and the circumstances of the offenses support the findings that the crimes were gang related. The record shows that all three defendants were active members of the same gang and that they were staying at an apartment where they were conducting a drug sales operation. Consistent with the gang code of conduct, the youngest of the three gang members took the blame for the contraband in the apartment. The photographs and clothing of defendants at the apartment showed their joint gang involvement. From this evidence, the jury could reasonably infer that defendants joined together as a gang when they armed themselves and engaged in the narcotics activity, and that this was done to enhance their gangs position in the neighborhood and the gang world and their own positions within the gang.
There is substantial evidence the offenses were committed in association with or to benefit the gang rather than merely for personal reasons.
D. Evidence that Gang Is a Criminal Street Gang
Defendants argue there is insufficient evidence to prove that their gang qualifies as a criminal street gang for the gang enhancement. They assert the prosecutions gang expert did not present reliable testimony establishing that drug sales activity was a primary activity of the East Coast Crips gang in San Bernardino County.
For purposes of the gang enhancement, a criminal street gang is a group "having as one of its primary activities the commission of one or more [certain enumerated] criminal acts . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Pen. Code, § 186.22, subd. (f).) To satisfy the primary activity element, the criminal activity must be one of the groups chief or principal occupations; the occasional commission of the crimes by the groups members does not suffice. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) The groups primary activities may be shown by the testimony of an experienced police gang expert who has extensively investigated crimes committed by gang members. (Id. at p. 324.)
Detective Walker described his extensive background in investigating the East Coast Crips gang in San Bernardino County. He stated that one of the gangs predominant activities in San Bernardino County is narcotics sales, including PCP, marijuana, cocaine base, and ecstasy. He cited the convictions of two East Coast Crips gang members for narcotics sales activity; i.e., Chester Nelson (possession of cocaine base for sale) and Claudiel Polk (transporting MDMA in 2005). The prosecutor submitted the certified court documents reflecting these convictions into evidence.
To support their challenge to the sufficiency of the evidence on the primary activity element, defendants argue that Detective Walkers testimony lacked specificity because it did not disclose how he acquired the information about the gangs narcotics sales activities. Detective Walker described his 12-year career during which he has investigated thousands of gang-related cases, including about 15 to 20 cases involving the East Coast Crips in San Bernardino and Riverside Counties. His first contact with a documented East Coast Crips gang member in San Bernardino County occurred in 1999, and since then he has had about 50 to 100 personal contacts with East Coast Crips gang members. He has acquired knowledge about the East Coast Crips gang from his numerous training and investigative activities, his frequent contacts with gang members on the streets, his review of reports describing the gangs activities, and several "ride-alongs" with officers in Los Angeles where the gang originated. Detective Walker described his familiarity with the narcotics-related cases of East Coast Crip gang members Nelson and Polk, stating that he testified in Nelsons case and he spoke to an officer involved in Polks case. During his testimony Detective Walker referred to the court documents depicting their convictions. The record amply shows that Detective Walker had a reliable basis for his opinion about the gangs primary activities.
Defendants contend that narcotics sales activity by two gang members was not sufficient to show this was a primary activity of the gang. Contrary to defendants assertion, the record does not reflect merely two isolated, occasional drug-related crimes by East Coast Crips gang members. To the contrary, Detective Walker, who had a lengthy history of investigating the gang, testified that narcotics sales was a predominant activity of the gang, and that some East Coast Crips gang members had relocated from Los Angeles to San Bernardino County because of more favorable conditions for their drug sales activities. The two drug-related convictions of East Coast Crips gang members in San Bernardino County provided two examples of this activity. Detective Walkers testimony about his familiarity with the gangs activities, coupled with the evidence of the two convictions, was sufficient to establish the gangs primary activity.
Defendants citation to In re Alexander L. (2007) 149 Cal.App.4th 605 does not support that Detective Walkers testimony was insufficient to establish the primary activity element. In Alexander, the experts sole testimony on this point was that "he kn[e]w that the gang had been involved in certain crimes"; "[n]o specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information"; the expert did not directly testify that crimes were the gangs primary activities; and the expert testified on cross-examination that the majority of cases he had seen concerning the gang merely involved graffiti. (Id. at p. 611-612.) The Alexander court concluded the experts conclusory testimony about the gangs criminal activity was insufficient to establish the primary activity element because there was no showing that his opinion was based on reliable sources, and the experts reference to two crimes committed by two gang members was, standing alone, insufficient to show the crimes were a chief occupation of the gang rather than an occasional occurrence. (Id. at pp. 612614.)
Alexander distinguished People v. Gardeley, supra, 14 Cal.4th at page 620, where a foundation was laid to show that the experts opinion was based on the experts conversations with gang members, his numerous investigations of gang cases, and his acquisition of information from other law enforcement officials. (Inre Alexander L., supra, 149 Cal.App.4th at p. 613.) Here, as in Gardeley and unlike Alexander, a proper foundation was laid for the reliability of Detective Walkers testimony concerning the East Coast Crips gangs primary activity.
In their reply brief, defendants cite Detective Walkers testimony that the East Coast Crips gang includes several subsets, and argue that the primary activity element was not reliably shown because there was no evidence showing which subset Nelson and Polk belonged to and no evidence showing that defendants were members of a subset that engaged in narcotics sales activity. An argument raised for the first time in a reply brief may be deemed waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
In any event, the contention fails on its merits. Detective Walker testified that all the subsets of the gang fall under the "same umbrella" of East Coast Crips and that narcotics sales was a primary activity of the gang. Further, defendants current offense was committed by three East Coast Crips gang members and involved narcotics sales activity. (See People v. Sengpadychith, supra, 26 Cal.4th at pp. 320, 323 [current charged offense may be considered when determining primary activity element].) From this evidence, the jury could reasonably infer that the subsets, including defendants subset, engage in the same primary activity without further specific testimony about the subsets.
Contrary to defendants contention, the record here is not comparable to that in People v. Williams (2008) 167 Cal.App.4th 983, where the evidence merely showed that the defendants subgroup shared "a commonality of name and ideology" with a larger group, but there was no evidence from which it could be inferred that the groups had "collaborative activities or collective organizational structure." (Id. at p. 988.) Detective Walkers testimony supported that the subsets of the East Coast Crips gang operated under a unified organizational structure. This testimony was buttressed by the invitation found in defendants apartment inviting subsets of the East Coast Crips to a "Hood Day."
IV. Cross-Examination of CPS Worker
Defendants argue the trial court violated their constitutional right of confrontation by curtailing cross-examination of Lee, the CPS worker who arrived at the apartment after the police.
On direct examination by the prosecutor, Lee testified that he went to the apartment in response to a report to the child abuse hotline; when he arrived at the apartment the police were there; and he did not summon the police to the apartment but his supervisor would have done so if there had been concern for his safety. On cross-examination by Campbells counsel, Lee testified that when he entered the apartment he observed a small amount of marijuana in plain view.
When Campbells counsel asked if he went to the apartment to check on the welfare of two children, Lee requested whether he could decline to answer based on confidentiality. The court ruled the question called for confidential information that did not have to be disclosed. In a discussion outside the presence of the jury, the court stated that Lee could be questioned about his physical observations while at the apartment, but that matters beyond that fell within the confidential provisions of CPS. Further, the court stated the issues raised by defense counsel addressed the validity of the search, which was not relevant because it had been resolved and was not currently before the court.After the courts ruling, Campbells counsel asked Lee about the individuals he observed at the apartment and then concluded his questioning.
This discussion occurred off the record at the bench. The trial court summarized the discussion on the record, and Campbells counsel agreed that the courts summation was accurate.
On appeal defendants argue the courts limitation on cross-examination of Lee was improper because the questioning would have undermined the credibility of Lee and Officer Golubic by supporting the defense theory that the officers forcefully entered the home looking for drugs and weapons, and that they were not simply responding to a call about neglected children.
To preserve a challenge to a trial courts exclusion of evidence, the defendant must make known to the trial court, by an offer of proof or other means, the substance, purpose, and relevance of the evidence. (Evid. Code, § 354, subd. (a); People v. Whitt (1990) 51 Cal.3d 620, 648.) The offer of proof requirement gives the trial court an opportunity to change its ruling, and provides an appellate court the means of assessing prejudice. (People v. Whitt, supra, 51 Cal.3d at p. 648.) The offer of proof requirement may be excused when the defendant is merely engaging in exploratory cross-examination to elicit information unknown to the defendant. (Evid. Code, § 354, subd. (c); People v. Burton (1961) 55 Cal.2d 328, 344.) However, the requirement is not excused when the court is unaware of the theory of relevancy. (People v. Allen (1986) 42 Cal.3d 1222, 1270, fn. 31; People v. Burton, supra, 55 Cal.2d at pp. 344-345.) We review the trial courts ruling for abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
Defendants have not cited to anything in the record indicating that Campbells counsel advised the court that the questions he posed to Lee about the purpose of his arrival were designed to undermine the credibility of Lee and Officer Golubic. Nor have defendants explained how questioning Lee about his arrival to check on the children might have undermined these witnesses credibility. To the contrary, the fact that Lee, a CPS worker, went to the apartment suggests that further testimony by Lee would have corroborated the police claim that they went to check on the children. Further, to the extent counsel wanted to question Lee about his observations of police conduct at the apartment, the trial courts ruling did not preclude this line of questioning.
Defendants have presented no grounds showing the court abused its discretion in limiting the cross-examination.
V. Sentencing Issues
A. Contention that Court Increased Georges Punishment for Exercising His Jury Trial Right
George argues the trial court penalized him for exercising his right to a jury trial because the court reduced his codefendants sentences based on their willingness to accept a package plea bargain deal (rejected by George) prior to trial.
At sentencing, counsel for Campbell and Mitchell requested that the court take into consideration that they wanted to admit guilt early in the proceedings and accept the prosecutions plea bargain offer, but they were prevented from doing so because the offer was a package deal and George insisted on going to trial. The prosecutor agreed that this factor should be considered when sentencing Campbell and Mitchell, and the court stated it wanted to try to sentence Campbell and Mitchell as closely as possible to the sentence they would have received had they been able to obtain the offered deal. Georges counsel opposed this, arguing George had steadfastly denied responsibility for the crimes; he was "at the wrong place at the wrong time"; and to sentence him differently than codefendants penalized him for exercising his right to take the matter to trial.
The court decided to strike the sentence enhancement for an offense committed within 1,000 feet of an elementary school for Campbell and Mitchell, stating that it was doing so because of their "willingness [to] admit responsibility for [their] offense at an early stage." As he argued before the trial court, George asserts the courts decision not to strike this enhancement for him penalized him for exercising his jury trial right.
A trial court has the discretion to strike a sentencing enhancement in furtherance of justice. (Pen. Code, § 1385; People v. Meloney (2003) 30 Cal.4th 1145, 1155.) When considering whether to strike an enhancement, the court may consider whether there are mitigating circumstances, including whether the "defendant voluntarily acknowledged wrongdoing . . . at an early stage of the criminal process." (Cal. Rules of Court, rules 4.423(b)(3), 4.428.)
Based on these sentencing principles, the trial court could properly exercise its discretion to strike an enhancement for Campbell and Mitchell because they had evinced their willingness to acknowledge their wrongdoing at an early stage of the proceedings by accepting the plea bargain. This particular mitigating factor did not apply to George. The trial courts determination with respect to Georges codefendants did not penalize George for exercising his right to a jury trial, because George was not entitled to leniency based on a nonexistent mitigating factor.
Contrary to Georges assertion, the circumstances here are not akin to cases where, based on the defendants decision to go to trial, the trial court improperly selected a disposition for the case that was harsher than what the court otherwise would have selected. (See, e.g., In re Lewallen (1979) 23 Cal.3d 274, 277-281; In re Edy D. (2004) 120 Cal.App.4th 1199, 1200-1202.) Here, the court did not select a harsher punishment option for George based on his not guilty plea, but merely imposed sentence on an enhancement found true by the jury. The courts decision to strike the same enhancement for Georges codefendants based on a mitigating factor uniquely applicable to them does not translate into an improper aggravation of Georges sentence.
B. Erroneous Imposition of Three Prior Prison Term Enhancements for George
The Attorney General concedes the trial courts imposition of three (rather than two) one-year prior prison term sentence enhancements for George is unsupported. We agree. The information alleged two prior prison term enhancements for George, based on case numbers FSB030922 and RIF125058. At a bifurcated bench trial, the prosecutions evidence showed George had incurred three prior convictions (case numbers FSB030922, FSB031648, and RIF125058), but did not show the sentences for the first two cases were served separately. The trial court nevertheless found true and imposed sentence for three prison priors. As recognized by the Attorney General, this was erroneous because the prior prison term enhancement applies only to prison terms that were shown to have been served separately. (Pen. Code, § 667.5, subd. (b); People v. Langston (2004) 33 Cal.4th 1237, 1241.) We modify Georges judgment to strike the prison term prior based on case FSB031648 and the accompanying one-year sentence.
Because we are striking the FSB031648 prior prison term finding for insufficiency of the evidence, we need not address Georges related due process contention based on the failure to allege this prior prison term.
DISPOSITION
For George, the judgment is modified to strike the prior prison term enhancement arising from case FSB031648 and to strike the one-year sentence imposed for this enhancement. Georges sentence is reduced from 12 years 8 months to 11 years 8 months. The superior court shall correct the abstract of judgment to reflect this modification and send a copy of the corrected abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
For Campbell, the judgment is affirmed.
Campbells petition for writ of habeas corpus is denied.
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HALLER, J.
WE CONCUR:
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BENKE, Acting P. J.
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OROURKE, J.