IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A117922

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1 Filed 10/29/08 P. v. Artieres CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. MARC L. ARTIERES, Defendant and Appellant. A (Marin County Super. Ct. No. SC143287) Marc L. Artieres was convicted of several charges relating to the illegal possession of drugs and firearms. He claims prejudicial error occurred during his trial: that the evidence did not support his conviction under Health and Safety Code section , and the trial court improperly admitted certain hearsay evidence. He further claims there were several sentencing errors: an imposition of dual punishment for the same offense in violation of Penal Code section 654, an imposition of excessive court security fees, and a failure to allow him proper credit for time served prior to sentencing. As discussed below, the Attorney General conceded error in the imposition of court security fees and the calculation of actual time credit, and we direct modification of the judgment accordingly. In all other respects, we find no prejudicial error and affirm the judgment. BACKGROUND An amended information filed in September 2006 set out six counts. Counts 1 through 5 were based on evidence seized during a search of defendant s home conducted 1

2 pursuant to a warrant on July 23, These alleged: (1) felony possession of methamphetamine for sale (Health & Saf. Code, 11378); (2) felony possession of cocaine (Health & Saf. Code, 11350, subd. (a)); (3) felony possession of firearm ammunition in violation of a protective order issued by the family law court of Sonoma County (Pen. Code, 12316, subd. (b)(1)); (4) felony possession of methamphetamine while armed with a loaded, operable firearm, specifically, a Ruger.357 caliber handgun (Health & Saf. Code, , subd. (a)); and (5) misdemeanor possession of firearms in violation of the family law court protective order (Pen. Code, 12021, subd. (g)(2)). Count 6, which alleged felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), was based on evidence seized during a probation search of defendant s home that occurred on March 15, The jury verdict of March 16, 2007, found defendant guilty of counts 2 through 6. As to count 1, the jury found defendant guilty only of a lesser included offense felony possession of methamphetamine. (Health & Saf. Code, 11377, subd. (a).) In subsequent sentencing proceedings, the trial court dismissed the conviction for count 1, concluding that felony possession of methamphetamine was a lesser included offense of that stated in count 4 felony possession of methamphetamine while armed with a loaded and operable firearm. (Health & Saf. Code, , subd. (a).) The court suspended imposition of sentence as to the remaining counts, granting defendant formal probation for a period of five years. As a condition of probation, the court directed that defendant serve four months in county jail as to the principal offense set out in count 4. It also directed that defendant serve separate terms in county jail for counts 3, 5, and 6. The court directed defendant to serve his three-month term for count 3 and his three-month term for count 6 consecutively to his four-month term for count 4; it ordered that he serve his three-month term for count 5 concurrently with his three-month term for count 3, thus ordering defendant to serve a total term in county jail of 10 months. 1 1 Although the trial court also directed that defendant serve a three-month county jail term in connection with his conviction for count 2, it stayed this particular term pursuant to [Penal Code section] 654. We note also that the minute order directs 2

3 The court also imposed a court security fee in the total amount of $120 (Pen. Code, , subd. (a)(1)), and allowed defendant 54 days credit for actual time served (Pen. Code, , subds. (a) & (d)). This appeal followed. ( 1237, subd. (a).) DISCUSSION A. Sufficiency of the Evidence Relating to Count 4 Defendant contends substantial evidence does not support the jury s verdict convicting him of count 4, the felony violation of Health and Safety Code section He argues there was insufficient proof that he was armed with the alleged Ruger.357 handgun while also in unlawful possession of methamphetamine, within the meaning of Health and Safety Code section , subdivision (a). 2 In determining evidentiary sufficiency in a criminal prosecution, we review the entire record, in the light most favorable to the judgment, for the presence of substantial evidence that which reasonably inspires confidence and is of solid value such that [a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Marshall (1977) 15 Cal.4th 1, 34 (Marshall), quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, italics in original; see also People v. Chatman (2006) 38 Cal.4th 344, 389.) defendant to serve a jail term of five months for count 5, whereas the reporter s transcripts shows that the court directed defendant to serve a term of three months for that count. The record does not include any abstract of judgment. In the case of conflicting records that cannot be harmonized, that record prevails which has the greater credence due to its origin, nature, or otherwise. (People v. Smith (1983) 33 Cal.3d 596, 599.) Here both the reporter s transcript of the court s rulings and the clerk s minutes refer to a total jail term of 10 months. This total is consistent only with a four-month term for count 4, a consecutive three-month term for count 6, and a consecutive threemonth term for count 3 with a three-month term for count 5 to be served concurrently with the term for count 3. As such, we conclude the reporter s transcript prevails in this instance. 2 The phrase armed with is statutorily defined as having available for immediate offensive or defensive use. (Health & Saf. Code, , subd. (a).) 3

4 Defendant argues that there was insufficient evidence to establish either that the.357 handgun was in close proximity to the methamphetamine found in his home, or that its presence was anything other than coincidental to his possession of the drug. These objections derive from the decision in People v. Bland (1995) 10 Cal.4th 991 (Bland). In Bland, the Supreme Court construed analogous language in Penal Code section 12022, 3 and held that to find an enhancement allegation under that section true, in a case involving a defendant s unlawful possession of drugs for sale, some facilitative nexus had to exist between the defendant s possession of a firearm and his commission of the drug offense. That is, the prosecution had to show that the presence of the firearm had some purpose or effect connected with the drug offense, as distinguished from mere accident or coincidence. (Bland, supra, 10 Cal.4th at p. 1002, quoting Smith v. United States (1993) 508 U.S. 223, 238.) The court further held that the facilitative nexus requirement was satisfied by evidence showing that the presence of a firearm in close proximity to an unlawful cache of drugs such evidence gave rise to an inference that the defendant kept the firearm close at hand for ready access to aid the drug offense. (Bland, supra, at p ) However, a violation of Health and Safety Code section does not require a facilitative nexus, but rather having the firearm available for use. Accordingly, the court instructed the jury that the firearm had to be available for immediate offensive or defensive use. (See CALJIC No (Fall 2006 ed.); fn. 2, ante.) As explained below, it was not unreasonable for the jury as fact finders to determine that the gun was available for defendant s use. Moreover, a facilitative nexus was also present. Here, the evidence showed that defendant occupied the master bedroom of the house, and that the closet for this bedroom contained men s clothing including a suit jacket with the loaded.357 handgun in the jacket s breast pocket. The methamphetamine was located some 15 or 20 feet away, inside a fanny pack stashed inside a vent in the 3 Penal Code section provides for a prison term enhancement in the event a defendant is found to have been armed with a firearm in the commission of a felony. (Pen. Code, 12022, subd. (a)(1).) 4

5 hallway bathroom. The fanny pack included a business card in [defendant s] name. There was also a glass smoking pipe on a desk in defendant s bedroom, containing a black residue of a type typically... used for smoking methamphetamine. A police officer with experience in drug possession investigations stated that a loaded handgun located in a suit pocket in the closet of a person in unlawful possession of drugs was consistent with a firearm intended for protection in connection with that person s unlawful drug possession, as such a handgun was very accessible. Although defendant testified that he was, coincidentally, a gun collector and target hunter, there was also evidence that, some six weeks before the search, an intruder pounded on the front door, eventually kicking it down, and that defendant, who was home at the time, responded by running to his bedroom to get a loaded handgun, and within 20 seconds had the gun ready and leveled at the intruder by the time he broke the front door open. Viewing this evidence in the light most favorable to the judgment, we conclude it provides substantial support such that any rational trier of fact could find, beyond a reasonable doubt, that the loaded.357 handgun in defendant s suit pocket was close to his cache of drugs, and that its presence nearby in the closet was not merely coincidental to his possession of the drugs, but was rather available for his immediate use in the protection of those drugs. (Marshall, supra, 15 Cal.4th at p. 34.) Defendant also claims the evidence failed to show that the.357 handgun was operable. He reasons there was no evidence the weapon had been tested for operability, and urges that operability could not rightly be inferred from the fact that it was loaded, because loaded is itself a separate element of the offense and to permit such an inference would effectively extinguish the requirement that the firearm be operable. Initially we reject defendant s suggestion, unsupported by any controlling or convincing authority, that proof of the fact a firearm is operable, for purposes of Health and Safety Code section , subdivision (a), should be limited to direct evidence such as ballistics testing or testimony of actual use, or to circumstantial evidence in the form of expert witness testimony. Other circumstantial evidence may be sufficient. For 5

6 example, as we have noted, there was evidence in this case that, in June 2005, defendant obtained a handgun from his bedroom when an intruder began pounding on his front door. When the intruder attempted to flee, defendant pointed the handgun at him, worked its mechanism to chamber a round for firing, and demanded that the intruder halt or be shot in the leg for breaking into defendant s house. According to defendant, police confiscated this handgun in case the District Attorney wanted to do something about it because [defendant] shouldn t have chased somebody around with a gun. In other words, in June 2005 defendant kept a handgun in his bedroom available for immediate use as a loaded and operable weapon. Six weeks after the confiscation of this weapon, police found another handgun in defendant s bedroom that was similarly loaded and available. The inference that the.357 handgun was similarly operable appears far more reasonable than an inference that it was not. Defendant testified that his inoperable rifles were kept in a cabinet. We conclude the evidence was sufficient for a rational trier of fact to find, beyond a reasonable doubt, that the.357 handgun was operable. B. Hearsay Evidence Relating to Defendant s Possession of Controlled Substances Debbie Martinez, testifying for the defense, stated she had known defendant since 1999 and said the two of them had been in an on and off relationship over the intervening years. At the time she testified, in March 2007, Martinez described defendant as her fiancé, but said that in mid-2005 she had been in a relationship with another man and in June and July of that year she had obtained the restraining orders against defendant that, in effect, precipitated the charges in this case. Martinez testified she obtained the restraining orders in 2005 not because of defendant s conduct, but because her other boyfriend at that time had pressured her to do so and because she had hoped thereby to force her adult daughter to move out of defendant s home. Martinez admitted making reports to the police in July 2005, to the effect that defendant was threatening her and otherwise violating the restraining orders, and she acknowledged that these reports led to his arrest on July 22, She also claimed, however, that she had planted both the copy of the restraining order and the.357 handgun that officers found in defendant s 6

7 bedroom closet during their search of defendant s home conducted the following day. Martinez s testimony further included a statement that, before July 2005, she and defendant had used methamphetamine in defendant s bedroom. When asked if defendant s children were ever present when she and defendant used methamphetamine, Martinez responded in the negative, stating she and defendant always [did] it behind closed doors. In rebuttal to Martinez s testimony for the defense, the district attorney recalled Deputy Sheriff Michelle Buchignani, who previously testified for the prosecution as one of the officers who conducted the search of defendant s home on July 23, The prosecution elicited proper rebuttal testimony from Buchignani when she stated that she interviewed Martinez, and Martinez had never mentioned she planted the copy of the restraining order and the.357 handgun in defendant s bedroom closet. But the district attorney also elicited a statement that, in one interview conducted the day before the search, Martinez told Buchignani that defendant used methamphetamine and cocaine and that he store[d] his drugs in a floor vent in the [hallway] bathroom. Defendant s trial counsel subsequently made an oral motion to strike this particular statement, protesting that, while the statement was known to the parties through pretrial discovery of police reports, the district attorney had unfairly elicited the statement during rebuttal in a sand bag fashion. The district attorney argued the statement was proper because it was inconsistent with Martinez s testimony during trial, in that she had denied everything that was helpful to the prosecution and admitted to planting evidence and anything else that was helpful to the defense. Defendant s counsel pointed out that the district attorney should have examined Martinez about her statement before attempting to introduce it as an inconsistent statement. (See Evid. Code, 770, subd. (a).) The trial court, however, ruled the statement was proper impeachment and denied the motion to strike. Defendant now claims it was error to admit this hearsay statement during rebuttal. He reasons first that the statement was not actually inconsistent with any of Martinez s trial testimony, including her admission that she and defendant had used 7

8 methamphetamine in defendant s bedroom. He also urges that, even if the statement was inconsistent, it lacked the requisite foundation that is, by the time the prosecution elicited the statement, Martinez had been excused from giving further testimony without ever having been given an opportunity to explain or deny the statement. (See Evid. Code, 770, 1235.) The Attorney General argues defendant has forfeited his objections before this court because he failed to specify these grounds adequately below. (See Evid. Code, 353, subd. (a).) It is true that defendant s objection below was primarily grounded on unfair surprise or prosecutorial misconduct for eliciting the statement in a sand bag fashion during rebuttal. But as we have noted, defendant s trial counsel also argued that the prosecution had not previously examined Martinez as to her pretrial statement. We deem this sufficient to have alerted the trial court that Martinez did not have an opportunity to explain or deny the statement (see Evid. Code, 770, subd. (a)), but also that there had been no trial examination resulting in testimony actually inconsistent with the challenged pretrial statement (see Evid. Code, 1235). The trial court erred when it declined to strike the challenged statement. Regardless of defendant s foundational objections under Evidence Code section 770, Martinez s pretrial statement was not inconsistent with her trial testimony, either in effect or as an express contradiction. (Cf. People v. Ervin (2000) 22 Cal.4th 48, ) The critical issue, then, is whether the error resulted in a miscarriage of justice. (See People v. Guerra (2006) 37 Cal.4th 1067, 1113; see also Evid. Code, 353, subd. (b).) Defendant contends the error violated his federal constitutional rights to a fair trial and due process of law. He suggests this is so because the court s ruling amounts to an arbitrary violation of the state statutes enacted to govern the admissibility of evidence in criminal trials, citing Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks). Accordingly, he takes the position that the error must be subjected to the harmlessbeyond-reasonable doubt standard established by Chapman v. California (1967) 386 U.S. 18 (Chapman). 8

9 Defendant s argument on this point is not persuasive. The decision in Hicks, supra, 447 U.S. 343, involved a trial court s jury instruction, the effect of which was to deprive a criminal defendant arbitrarily of a statutory right to have the jury exercise discretion in fixing his term of punishment. (Id. at pp ) Here the error involved no more than one of many rulings entrusted to the trial court during trial and subject to the state statutes governing the admission of evidence. The trial court s error in this instance by no means amounted to an arbitrary deprivation of a substantial liberty interest like that at issue in Hicks, supra, but simply violated statutory admissibility requirements set out in the Evidence Code. The error is thus one subject to the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), and we reverse only if there is a reasonable probability of a more favorable result in the absence of the error. 4 (See People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373; see also People v. Arias (1996) 13 Cal.4th 92, 153.) Defendant urges that, even under Watson, supra, 46 Cal.2d 818, the error was prejudicial because the evidence was close, at least as to the drug possession charges. The statement erroneously admitted indicated defendant used methamphetamine and cocaine and stored these drugs in a vent in the hallway bathroom of his home. In examining the record, we note there was other, compelling evidence that defendant used methamphetamine and cocaine in his home, both before and after the date in July 2005 when police found the fanny pack in the hallway bathroom vent. In addition to methamphetamine and cocaine, the fanny pack contained a business card with defendant s name on it. Police also found a glass smoking pipe with a black residue of a 4 Courts have held that the stricter analysis of Chapman, supra, 386 U.S. 18, applies when an erroneous admission of testimony violates a criminal defendant s constitutional rights under the confrontation clause. (See, e.g., People v. Beyea (1974) 38 Cal.App.3d 176, 194; see also People v. Johnson (1992) 3 Cal.4th 1183, 1220.) Defendant has raised no objection based on that specific ground. Nor does the record suggest any violation of the confrontation clause. Martinez was a friendly witness called by the defense, and, while the reporter s transcript indicates the trial court did not expressly subject Martinez to recall at the conclusion of her trial testimony, neither did the court expressly excuse her from giving further testimony. 9

10 kind typically... used for smoking methamphetamine on a computer desk in defendant s bedroom. Defendant s home was described as a single story of living quarters consisting of three bedrooms, a living room, one bathroom in defendant s bedroom and one in the hallway, and a hallway laundry room. The hallway bathroom was only 15 to 20 feet from defendant s bedroom, where he and Martinez had used methamphetamine. The jury had evidence that a number of other people had stayed in defendant s home and used the hallway bathroom, but there was no evidence that people other than defendant and Martinez ever used drugs in the home. The jury evidently disbelieved defendant who testified that the drugs in the vent were not his, the loaded magnum belonged to a friend and defendant stored it in his gun cabinet. Defendant s former wife testified that she destroyed evidence at the request of the defendant. She also told an investigating officer that defendant kept a handgun in the breast pocket of his suit. In light of the foregoing evidence, we cannot agree that the circumstantial evidence was close as to the drug possession charges arising from the search conducted on July 23, We conclude, rather, that there was no reasonable probability of a more favorable result on these charges in the absence of the error. The error was accordingly harmless. C. Imposition of Jail Terms on Counts 3 and 5 Defendant claims the trial court violated the dual-punishment prohibition of Penal Code section 654 when it imposed jail-term sentences for each of his convictions under counts 3 and 5. 5 As noted above, the conviction for count 3 was for unlawful possession of ammunition in violation of a family law court protective order (Pen. Code, 12316, subd. (b)(1)) and the conviction for count 5 was for unlawful possession of firearms in 5 Although defendant also claims the trial court violated constitutional right[s] under the Fourteenth Amendment by this same act of sentencing, he offers no supporting authority or argument on the point, and we need not consider it. (People v. Stanley (1995) 10 Cal.4th 764, 793.) 10

11 violation of a family law court protective order (Pen. Code, 12021, subd. (g)(2)). Defendant reasons that his possession of both ammunition and firearms was a single act with a single objective, and as such was punishable under either section or section 12021, but not under both. (See Pen. Code, 654, subd. (a).) He requests that we therefore stay punishment as to count 5. There is, however, no sentence or punishment for us to stay in this case. The trial court suspended imposition of sentence on all five convictions, granting instead a period of formal probation that was conditioned, among other things, on defendant s serving time in county jail. A grant of probation is an act of rehabilitative clemency and its proper conditions are not subject to the dual punishment proscription of Penal Code section 654. (People v. Stender (1975) 47 Cal.App.3d 413, 425.) Defendant asks that we nevertheless apply Penal Code section 654 to his county jail term because the trial court itself invoked section 654 when it stayed its order directing him to serve a three-month jail term for count 2. (See fn. 1, ante.) If the trial court erred in defendant s favor by improperly applying section 654 to determine one of the conditions of its grant of probation, we are not required to err in the same way for the sake of consistency. For the same reason, we reject any notion that we should apply section 654 because the trial court arrived at its conditional 10-month jail term by means of an apportionment analogous to an imposition of multiple sentences. Defendant also suggests we should consider now whether Penal Code section 654 would apply to prevent dual punishment in the event the trial court decides to impose sentence on his convictions for counts 3 and 5, either because he might be deemed to have waived any future sentencing objection on that ground, or simply because his appeal is already before us. It is clear, however, that defendant may still raise an objection based on section 654, should the court ultimately find it necessary to impose sentence. (See People v. Wittig (1984) 158 Cal.App.3d 124, 137.) Nor would our consideration of the issue be proper as a matter of judicial economy or otherwise because it is not a matter presently in controversy. Moreover, a determination whether section 654 properly applies, because two or more offenses are indivisible elements of a single course of 11

12 conduct, is a factual question turning ultimately on the defendant s intent and objectives. (People v. Green (1996) 50 Cal.App.4th 1076, ) As such, the issue is better addressed by the trial court in the first instance, if and when it becomes necessary to impose sentence. To the extent that defendant s claim may be construed as a challenge to the probationary conditions imposed by the trial court, we review the conditions for abuse of discretion, considering whether they bear a reasonable relationship to the offenses and the offender. (See People v. Torres (1997) 52 Cal.App.4th 771, 782.) Even if we assume, with respect to counts 3 and 5, that defendant suffered two convictions for a single, indivisible course of conduct, the fact remains that the court, on the basis of these convictions, required that defendant serve two 3-month jail terms concurrently. Because defendant may satisfy both probationary conditions by serving a single period of confinement in county jail, we cannot say they result in any unreasonable dual punishment. In light of the whole record, including the factors submitted in the probation officer s report prepared for defendant s sentencing hearing, we have no difficulty concluding these jail terms were reasonable conditions falling well within the court s exercise of discretion. D. Other Sentencing Error A trial court is required to impose a court security fee in the amount of $20 for every conviction for a criminal offense. (Pen. Code, , subd. (a)(1).) Defendant contends the trial court erred when, during sentencing, it imposed such fees in the total amount of $120. As we have noted, the trial court dismissed his conviction for count 1 after concluding it was a lesser included offense of count 4. Defendant, citing People v. Villa (2007) 157 Cal.App.4th 1429, 1435, reasons the court was authorized to impose court security fees only as to the remaining five convictions for counts 2 through 6, for a total of $100. Defendant also claims the court erred in allowing him only 54 days credit for actual time served prior to his sentencing. (See Pen. Code, , subds. (a) & (d).) He urges he was instead entitled to an allotment of 55 days credit for actual time served, 12

13 and the discrepancy is apparently due to the court s reliance on the prosecution s error in calculating the number of days he was in actual custody during the period of November 8 through November 14, The Attorney General concedes the merit of these contentions, and joins in defendant s request that we correct these sentencing errors. DISPOSITION The trial court is directed to amend its judgment to impose court security fees under Penal Code section in the amount of $100, and to order that defendant receive 55 days credit for actual time served under Penal Code section , plus 26 days credit for good/work time under Penal Code section 4019, for a total of 81 days credit. In all other respects the judgment is affirmed. Marchiano, P.J. We concur: Swager, J. Margulies, J. 13