PEOPLE v. NELSON

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Charles NELSON, Defendant and Appellant.

No. B091413.

Decided: March 07, 1996

Gardner & Derham and Robert Derham, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, Sharon Wooden–Richard, and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Charles Nelson, filed a timely notice of appeal after being convicted in a retrial, of:  possession of cocaine base for sale (Health & Saf.Code, § 11351.5) (count 1);  possession of marijuana for sale (Health & Saf.Code, § 11359) (count 2);  possession of a firearm by a felon (Pen.Code,1 § 12021, subd. (a)(1)) (count 3);  and possession of cocaine (Health & Saf.Code, § 11350, subd. (a)) (count 4).   The jury also found to be true the following special allegations:  defendant had twice been convicted of two prior serious felonies (§ 667, subds. (b)–(i));  as to count 1, defendant was personally armed with a firearm (§ 12022, subd. (c));  and with respect to counts 1 through 3, defendant had served a prior prison term.   The trial court sentenced defendant to a total term of 29 years to life consisting of:  25 years to life on count 1 (§ 667, subd. (e)(2)(A)(ii));  plus 4 years for the personal use of a firearm;  and the middle term of 2 years for counts 2 and 3 to run concurrent to the sentence in count 1.   The trial court “struck” count 4 because it was a lesser included offense of count 1.   Defendant was given a total 318 days of custody credit.

Defendant, who represented himself at the second trial, contends on appeal:  (1) the trial court committed reversible error by denying his request for advisory counsel;  (2) the trial court denied him the right to a jury trial by prohibiting him from telling the jury of the sentence he would receive;  (3) the trial court erred in imposing the 4–year term for possession of a firearm consecutive to the term of 25 years-to-life;  (4) the amendments to section 667, subdivisions (b)-(i) are not the proper subject for urgency legislation;  (5) the prior convictions should be stricken because they occurred before March 7, 1994;  and (6) the 25 years-to-life sentence for possession of cocaine for sale is cruel or unusual punishment.   The Attorney General argues that the sentence must be modified to add 2 consecutive additional 25 years to life sentences.   For the reasons stated below, we reject defendant's arguments and agree with those of the Attorney General.   In the published portion of this opinion, we address the contentions of the Attorney General.

II. BACKGROUND

When the testimony is viewed in a light most favorable to the judgment below (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560;  Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908–909;  People v. Berryman (1993) 6 Cal.4th 1048, 1083, 25 Cal.Rptr.2d 867, 864 P.2d 40), the following facts were established.   On June 24, 1994, at approximately 3:30 p.m., Pomona police officers served a search warrant at 1226 West 7th Street in that city.   They parked four houses away and walked towards the house.   As they approached, Officer Richard Shope observed four to six people sitting on the front porch, one of whom was the defendant.   When defendant saw the police officers, he quickly ran into the house.   Another individual named Nolan McHenry also ran into the house.

Officer Phillip Dotson found defendant standing in the southwest bedroom in front of a chest of drawers.   Officer Dotson directed defendant and the two other people in the bedroom to “freeze and put their hands up.”   While the two other people immediately stopped, defendant kept moving around until Officer Dotson loudly chambered a round into his shotgun.   Defendant then turned around and put his hands in the air.   Another officer escorted defendant and the two other people into the living room.   In searching the southwest bedroom, Officer Shope found in the chest of drawers where defendant was moving about until the shotgun round was chambered 2 bags containing a total of 1.1 grams of cocaine;  16 individually wrapped bags of marijuana inside a larger bag;  a loaded 9–millimeter handgun;  and 2 pieces of mail addressed to defendant at 1226 West 7th Street.   He also found two pagers on top of the chest of drawers.   When defendant was searched, a “large sum[ ] of money” was found on his person.

After defendant was arrested and advised of his rights, he spoke to Officer Shawn Stone.   Defendant said he lived at the residence with his mother, sisters, and two children.   A vehicle registration from the Department of Motor vehicles listed defendant's address as 1226 West 7th Street.

Defendant, who has utilized five aliases, was first arrested as an adult on May 19, 1975, for petty theft and was placed on probation for one year and fined $50.   On October 19, 1977, defendant was arrested for petty theft and once again placed on probation for one year and fined $250.   While on probation, on July 18, 1978, defendant was again arrested and convicted of petty theft.   He was sentenced to 10 days in jail and fined $330.   On November 18, 1978, defendant was arrested and later convicted for the fourth occasion of petty theft, receiving another 10 day sentence and $330 fine.

On July 28, 1982, a felony complaint was filed as a result defendant's arrest for sale of a controlled substance in violation of Health and Safety Code section 11379.   On May 6, 1983, defendant was placed on 36 months felony probation but only required to serve 30 days in the county jail.   On July 29, 1983, while on felony probation, defendant was arrested and later convicted of being under the influence of a controlled substance in violation of Health and Safety Code section 11550.   On January 19, 1984, while still on felony probation defendant was arrested and later convicted of misdemeanor battery in violation section 242.   On February 24, 1984, defendant was committed to one year in the county jail on the aforementioned felony drug trafficking case for which he had previously been placed on probation on May 6, 1983.   After his release from custody, defendant was arrested and convicted of robbery.   He was for the eighth time placed on probation.   On this occasion, his second felony conviction, he was ordered to spend one year in the San Bernardino County Jail.   After his release, on March 22, 1987, defendant was convicted of robbery and received an eight year state prison sentence.   On May 7, 1991, defendant was paroled.   On December 25, 1993, defendant was arrested for infliction of pain on an elder or dependent adult.   Although arrested for a felony, defendant was permitted to enter a plea to a misdemeanor and was placed on probation for the ninth time.   On July 21, 1994, the misdemeanor grant of probation was revoked and defendant was sentenced to 270 days in the county jail.

In an interview with a probation officer, defendant admitted he had used alcohol, phencyclidine, and cocaine “on and off for the past 18 years.”   He did not claim to suffer from any significant emotional, mental, or physical problems.   Defendant was asked by the probation officer to provide a character reference.   Defendant declined to do so.   He had fathered two children he did not support.   He had inadequate employment stability over the preceding five years although he claimed to work with a nephew “periodically for two and one-half months.”   Defendant, who was on formal probation at the time of his arrest in the present case, claimed he was participating in a drug rehabilitation program.   However, a counselor indicated that although defendant was present at the group meetings he “was not actively participating in the sessions.”   The counselor urged defendant to attend narcotics anonymous meetings;  however, defendant “always had some excuse or another not to attend.”

The probation officer wrote:  “Before the court is a 37–year–old defendant who admits to using drugs and alcohol on and off for the past 18 years.   He has no steady employment.   His arrest and conviction history is extensive and dates back to 1971 when he was a juvenile.   It appears that defendant has a serious problem with drugs and has now escalated his activities to selling cocaine and marijuana.   The seriousness of this offense also includes possession of a nine-millimeter firearm.  [¶] The defendant was on active probation until this present offense.   His probation has since been revoked.   The defendant has been convicted of three previous felonies, one of which he was sentenced to state prison.   It appears the defendant is neither suitable nor eligible for further probation services.  [He] has exhausted all community-based resources.   The defendant obviously is a threat to the community in that his criminal activities have escalated.   It appears his prior prison sentence has not enlightened the defendant to become a productive citizen, instead he appears to be involved in a criminal lifestyle which includes carrying firearms.   His recent conviction and probation grant for a 11550(a) Health and Safety Code, did not deter the defendant in turning his life around.   He is now selling illicit drugs and feels it necessary to own a firearm.   It appears the defendant has not taken his previous court orders and efforts of other law enforcement agencies seriously.   If convicted of this offense, this would make the defendant's fourth felony conviction.[2 ]  Therefore, for the safety of the community, it is recommended that probation be denied.   State prison is being recommended for this defendant.”   The probation officer found the following to be aggravating factors:  defendant's felony convictions were numerous and of increasing seriousness;  he had served a prior prison term;  he was on probation when he committed the present felonies;  his prior performance on probation was unsatisfactory;  the planning and professionalism with which the crime was carried out indicated premeditation;  and he had engaged in a pattern of drug related conduct which indicated he was a threat to the society.   The probation officer found there were no mitigating circumstances.   At the probation and sentence hearing, defendant did not indicate there were any mitigating circumstances.   Further, he did not argue any of the aggravating factors were inapplicable to him.

III. DISCUSSION **

 The Attorney General argues that the trial court should have imposed two consecutive 25 years-to-life sentences as to counts 2 (possession of marijuana for purposes of sale) and count 3 (ex-con with a gun).   It is well established that a legally unauthorized sentence can be corrected at any time including on direct appeal upon request of the prosecution even though the issue was never raised in the trial court and the result is the defendant serves a longer prison term.  (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Welch (1993) 5 Cal.4th 228, 235, 19 Cal.Rptr.2d 520, 851 P.2d 802;  People v. Karaman (1992) 4 Cal.4th 335, 345–346, fn. 11, 349, fn. 15, 14 Cal.Rptr.2d 801, 842 P.2d 100;  In re Ricky H. (1981) 30 Cal.3d 176, 190–191, 178 Cal.Rptr. 324, 636 P.2d 13;  People v. Davis (1981) 29 Cal.3d 814, 827 & fn. 5, 176 Cal.Rptr. 521, 633 P.2d 186;  People v. Serrato (1973) 9 Cal.3d 753, 763–765, 109 Cal.Rptr. 65, 512 P.2d 289, overruled on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144;  In re Sandel (1966) 64 Cal.2d 412, 414–418, 50 Cal.Rptr. 462, 412 P.2d 806.)   The Attorney General argues that the trial court pronounced legally unauthorized sentences as to counts 2 and 3.   As noted previously, the trial court imposed two year concurrent sentences as to those each of these counts.   We agree these were legally unauthorized sentences.

Section 667, subdivision (e) provides, in pertinent part:  “For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:  [¶] ․ (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:  [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.  [¶] (ii) Imprisonment in the state prison for 25 years.  [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”   Putting aside the issue of enhancements, the greatest term that can be applied to a defendant for possession of marijuana for sale is three years.  (Health & Saf.Code, § 11359;  §§ 18, 1170, subd. (a)(2).)   The greatest term that may be imposed for ex-con with a gun is three years, assuming there are no applicable enhancements.   However, when a defendant has two prior serious felony convictions, the greatest term that can be imposed is 25 years to life pursuant to section 667, subdivision (e)(2)(A)(ii) putting aside the issue of enhancements.3  In this case, the trial court had no jurisdiction other than to have imposed 25 year to life sentences as to both counts 2 and 3.

The Attorney General argues that the sentences must run consecutively.   We agree with the Attorney General that consecutive sentencing is mandated by section 667, subdivision (e)(2)(B).   Although we have partially adverted to section 667, subdivision (e)(2) earlier in this opinion, for purposes of clarity, we fully set forth the pertinent language which requires consecutive sentencing.   Section 667, subdivision (e)(2) states:  “If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:  [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.  [¶] (ii) Imprisonment in the state prison for 25 years.  [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.  [¶] (B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.   Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”   As can be clearly discerned, section 667, subdivision (e)(2)(B) is explicit—when an indeterminate life term is imposed pursuant to section 667, subdivision (e)(2)(A)(ii), if a “consecutive term may be imposed,” the sentences must run consecutively.   In the present case, the recidivist statute at issue notwithstanding, consecutive sentencing would have been lawful.   (In re Adams (1975) 14 Cal.3d 629, 636–637, 122 Cal.Rptr. 73, 536 P.2d 473;  In re Hayes (1969) 70 Cal.2d 604, 606, 75 Cal.Rptr. 790, 451 P.2d 430;  People v. Menius (1994) 25 Cal.App.4th 1290, 1296, 1297, 31 Cal.Rptr.2d 15;  People v. Green (1988) 200 Cal.App.3d 538, 543–545, 246 Cal.Rptr. 164;  People v. Fusaro (1971) 18 Cal.App.3d 877, 894, 96 Cal.Rptr. 368;  People v. Mason (1969) 276 Cal.App.2d 386, 389, 81 Cal.Rptr. 195.)   As a result, the sentences as to counts 2 and 3 must run consecutively.   The sentence as to count 2 shall commence to run at the time defendant would otherwise have been released from prison as to count 1.   The sentence as to count 3 shall commence to run as of the time defendant would otherwise have been released from custody as to count 2.  (§ 667, subd. (e)(2)(B).)

[Editor's Note:  Parts III(F) and III(G) are deleted for publication purposes.   See footnote *, ante.]

IV. DISPOSITION

The judgment is modified to reflect that the judgment as to counts 2 and 3 are to be two consecutive terms of 25 years to life.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

2.   Actually, the present case involved defendant's fourth, fifth, and sixth felony convictions.

FOOTNOTE.   See footnote *, ante.

3.   As noted in the body of this opinion, there are three possible sentencing options set forth in section 667, subdivision (e)(2)(A) when a defendant has previously sustained two prior serious or violent felony convictions.   The trial court is obligated to impose the greatest of the three possible indeterminate sentences.   The first and third options (§ 667, subd. (e)(2)(A)(i & ii)) do not apply under the facts of this case.   The first option set forth in section 667, subdivision (e)(2)(A)(i) is an indeterminate term with the maximum period of incarceration being for life.   The minimum term results from tripling the “punishment for each current felony conviction subsequent to the two or more prior felony convictions.”   As to either counts 2 or 3 in the present case, this would result in an indeterminate sentence of 9 years to life.   The third sentencing option available to judges when the accused has experienced two prior serious felony convictions is to impose an indeterminate life sentence with the minimum term being the determinate term plus any enhancements.  (§ 667, subd. (e)(2)(A)(iii).)   Under this third option, for example, as to the marijuana possession count, the result would be an indeterminate term of three years to life.   Since section 667, subdivision (e)(2)(A) requires the greatest of the three options be given to defendant, the 25–years to life prison term is the sentence choice that must be imposed as to count 2.  (§ 667, subd. (e)(2)(A)(ii).)   A similar analysis applies to count 3.

TURNER, Presiding Justice.

ARMSTRONG and GODOY PEREZ, JJ., concur.