People v. Grant CA3 ( 2014 )

Filed 12/12/14 P. v. Grant CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C073063
v. (Super. Ct. No. 12F01155)
DOUGLAS WESLEY GRANT,
Defendant and Appellant.
A jury convicted defendant Douglas Wesley Grant of possession of a controlled
substance for sale and transportation of a controlled substance, and the trial court found
true enhancement allegations that defendant had prior convictions within the meaning of
Health and Safety Code section 11370.2, subdivision (a).1 The trial court sentenced
1 Undesignated statutory references are to the Health and Safety Code.
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defendant to an aggregate of 13 years in prison (four years for transportation of a
controlled substance and nine years -- three years each-- for the prior conviction
enhancements), to be served in county jail, with six years in custody and seven years
under mandatory supervision.
Defendant now contends (1) his trial counsel rendered ineffective assistance by
calling Lillian Viega as an expert witness, or in failing to adequately prepare her for
testimony; (2) his trial counsel rendered ineffective assistance by failing to object when
the prosecutor commented on the fact that defendant did not testify; and (3) the
cumulative effect of defense counsel’s errors rendered the trial fundamentally unfair.
We conclude defendant’s trial counsel was not deficient in calling Viega as a
witness (her testimony supported the defense case), and defendant has not established
that counsel was deficient in preparing Viega to testify. In addition, defense counsel was
not deficient in failing to object to the prosecutor’s rebuttal argument because the
prosecutor did not directly or indirectly refer to defendant’s failure to testify.
Accordingly, defendant’s cumulative error claim also lacks merit.
We asked the parties to submit supplemental briefs on whether we should modify
the judgment to reflect that, as to the prior conviction enhancements, defendant is
sentenced to a consecutive term of nine years (three years each) pursuant to
section 11370.2, subdivision (c), rather than subdivision (a), and whether we should
direct the trial court to amend the abstract of judgment to reflect the judgment as
modified and to correct the abstract of judgment to reflect the four-year sentence the trial
court imposed on the count two conviction for transportation of a controlled substance.
The parties agree the abstract of judgment should be corrected to reflect the oral
pronouncement of judgment on count two. But defendant argues the prior conviction
enhancements imposed under section 11370.2, subdivision (a) are unauthorized sentences
that must be stricken, because subdivision (a) did not apply. We conclude the
section 11370.2 enhancements are proper because defendant received sufficient notice
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and there is no indication that the incorrect designation of the applicable subdivision
caused defendant prejudice.
We will modify the judgment to reflect that defendant is sentenced to a
consecutive term of nine years (three years each) pursuant to section 11370.2,
subdivision (c), and we will affirm the judgment as modified. We will also direct the trial
court to amend the abstract of judgment to reflect the judgment as modified and to correct
the abstract of judgment to reflect the four-year sentence the trial court imposed on the
count two conviction for transportation of a controlled substance.
BACKGROUND
Sacramento Police Officer Paul Fong stopped a car because it did not have a front
license plate. The location of the traffic stop was a high narcotics trafficking area.
Defendant was the driver and sole occupant. Officer Fong did not see defendant contact
anyone prior to the stop. The parties stipulated that the stop and subsequent search of
defendant and his car were lawful.
Officer Fong found a small Ziploc type baggie containing a white crystal
substance wrapped in a green bandana in defendant’s back pants pocket. The baggie
contained 2.84 grams of methamphetamine. Officer Fong showed defendant the baggie
and asked him what was in the baggie. Defendant slammed his forehead on the roof of
his car and said, “[O]h, fuck, I forgot about those.”
Officer Fong searched defendant’s car. He found an organizer folder containing
$600 in cash inside the glove box. The $600 consisted of a $100 bill and $20 and $10
bills. The officer also found a cell phone, but he was unable to retrieve any information
from it.
Officer Fong transported defendant to jail after placing him under arrest. The
officer informed defendant he would be subject to prosecution for taking drugs into the
jail if he had additional drugs. Defendant answered, “[S]o what, do I need to give them
to you now or what?” Defendant then removed from his sock a plastic baggie containing
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0.9 grams of methamphetamine. He also produced a third baggie, containing 6.63 grams
of methamphetamine, hidden in his underwear. Defendant had a total of 10.37 grams of
methamphetamine. The methamphetamine had a street value of about $1,307.
Defendant had $96 in cash in his front pants pocket. The $96 consisted of $20, $10, $5
and $1 bills.
Officer Fong had been a police officer for almost 10 years. He had made hundreds
of arrests, including arrests for possession of methamphetamine. He had been trained on
how to conduct narcotics investigations. He opined methamphetamine users typically
had, on their person, a device with which they could use methamphetamine.
Officer Fong did not find any device typically used to ingest methamphetamine, such as a
pipe or syringe, on defendant’s person or car. Officer Fong did not find packaging
materials, a scale, or a pay-owe sheet, which were indicia of narcotics sales, in his search.
Officer Fong said the typical symptoms of methamphetamine use were missing or
broken teeth, weight loss, a gaunt appearance, pock marks, and sores caused by
scratching. He explained a person who had a “usable amount” of methamphetamine in
their system will exhibit symptoms. The signs Officer Fong looked for to detect whether
a person was under the influence of methamphetamine included the appearance of the
eyes and constantly moving hands.
Officer Fong said defendant did not have any of the symptoms associated with
methamphetamine use and did not appear to be under the influence of methamphetamine
when he was arrested. Defendant “looked fairly healthy.” His eyes appeared normal. He
was calm. He was not jittery or fidgeting. He did not constantly move his hands. He
was not sweating.
Sacramento Police Officer Darby Lannom testified as an expert on possession of
methamphetamine for sale for the People. He said methamphetamine is sold in grams in
Sacramento. One dosage unit of methamphetamine, which was the average amount an
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average user would buy on the street or might use to get high, was one- to two-tenths of a
gram. Ten point two (10.2) grams contained 51 to 102 dosage units.
Officer Lannom explained methamphetamine users were “dollar to dollar, day by
day . . . one score to the next type of people.” And a drug addict would be under the
influence or show signs of being under the influence of drugs “pretty much all the time.”
He said being a drug addict was a full-time job, and a drug addict would do anything to
get drugs into his system.
Officer Lannom said it was not typical for a methamphetamine user to carry
10.37 grams of methamphetamine. A person who bought 10 grams of drugs for personal
use would be a very addicted drug user. Such a person would show signs of chronic
methamphetamine use, be under the influence of methamphetamine, or have a method of
using the methamphetamine right away. He said signs of drug use included weight loss,
lack of personal hygiene, loss of teeth, open sores, and sweating. Officer Lannom said it
was possible but not very probable that a person would buy 10 grams of
methamphetamine and not intend to immediately use it all in a binge. He opined a drug
user could not ration 10.37 grams of methamphetamine for multiple dosages. According
to Officer Lannom, a person with 10.37 grams of methamphetamine and who did not
have a way to ingest the methamphetamine was more likely a seller, not a user.
Officer Lannom said each baggie of methamphetamine found on defendant was a
commonly sold amount on the street. He opined it was uncommon to find a user with
three packages of methamphetamine where each package was a different but roughly
sellable amount. Officer Lannom also said it was common for people who sold drugs to
conceal their drugs in different places to decrease their risk of being robbed of all of their
drugs. The officer further opined possessing $696 in cash, most of which was in small
denominations, bolstered his opinion that the methamphetamine was possessed for sale.
Officer Lannom concluded, based on a hypothetical scenario containing facts
mirroring those in this case and his experience as a police officer, the person in the
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hypothetical scenario possessed methamphetamine for sale, rather than for personal use.
The opinion was based on the amount of methamphetamine possessed, the absence of
implements to ingest methamphetamine, the lack of signs of being under the influence of
methamphetamine, the lack of signs of chronic methamphetamine use, the manner in
which the methamphetamine was packaged and hidden in three different places on the
person, and the possession of $696 in smaller denominations.
Defendant did not testify. The defense theory was that defendant was a
methamphetamine user, not a methamphetamine seller. His trial counsel called Viega as
an expert witness on substance abuse issues. Viega was a drug addiction counselor.
Prior to her career as a counselor, Viega was addicted to heroin and methamphetamine
and was around others who used methamphetamine. She committed crimes to support
her addiction. Viega had prior convictions for possession of a controlled substance for
sale, possession or purchase of a controlled substance for sale, grand theft, petty theft,
and forgery.
Viega said she had seen methamphetamine users with more than 10 grams of
methamphetamine on their person. When she used methamphetamine, she personally
had more than 10 grams of methamphetamine on her for her personal use. Viega bought
more methamphetamine than she could use at one time when she knew a particular
source provided good quality methamphetamine. Viega said depending on the quality of
the product, some people used two or three grams of methamphetamine a day. When she
used only methamphetamine, she injected two to three grams of methamphetamine a day.
Viega said that when she bought methamphetamine in larger amounts, she broke it
up into two or three quantities. It was not uncommon for her to have different baggies of
methamphetamine on her person. She said this was related to paranoia caused by
methamphetamine use.
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Viega used methamphetamine immediately after she bought it. But she did not
carry a device to use methamphetamine and had seen other methamphetamine users who
did not have a pipe on their person all the time.
Viega explained that heavy drug users usually had teeth problems, missing teeth,
“pick marks” and scarring on their faces, arms and legs; they also had sunken cheeks,
gray skin tone and they appeared very thin and unhealthy. When she was using
methamphetamine, Viega was very skinny and her hair was unhealthy and thin. She was
always under the influence of methamphetamine, except when she was incarcerated.
Viega agreed someone who was a heavy user, i.e., using two grams a day, would have
signs of that heavy use in all aspects of life. She agreed when someone was under the
influence of methamphetamine, their eyes looked different, and they constantly touched
things and moved their hands. But Viega had seen methamphetamine users who did not
exhibit any of the typical symptoms of methamphetamine use. In her experience as a
counselor, she met methamphetamine users who worked and maintained “somewhat of a
normal life.” According to Viega, a person could test positive for methamphetamine but
not exhibit any symptoms.
Additional facts are included in the discussion as relevant to the contentions on
appeal.
The jury convicted defendant of possession of a controlled substance for sale
(§ 11378 -- count one) and transportation of a controlled substance (§ 11379, subd. (a) --
count two). In bifurcated proceedings, the trial court found true certain enhancement
allegations. (§ 11370.2; Pen. Code, § 667.5, subd. (b).)
The trial court sentenced defendant to an aggregate of 13 years in prison, to be
served in county jail, consisting of the following: the upper term of four years for
transportation of a controlled substance; the upper term of three years, stayed, for
possession of a controlled substance for sale; a three-year consecutive term for each of
the three section 11370.2 priors; and a stayed one-year term for each Penal Code
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section 667.5 prison prior. Pursuant to Penal Code section 1170, subdivision (h)(5)(B),
defendant was to serve six years in custody and seven years under mandatory
supervision.
DISCUSSION
I
Defendant contends his trial counsel was ineffective because she called Viega as
an expert witness or, in the alternative, failed to adequately prepare Viega to testify.
To establish a claim of ineffective assistance of counsel, defendant must prove that
(1) trial counsel’s representation was deficient because it fell below an objective standard
of reasonableness under prevailing professional norms, and (2) the deficiency resulted in
prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v.
Washington (1984) 466 U.S. 668, 686-687 [80 L.Ed.2d 674, 692-693].) If defendant
makes an insufficient showing on either one of these components, his ineffective
assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v.
Washington, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 693].)
The Supreme Court recently observed, “It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.)
A
The decision to call a witness is a matter of trial tactics, unless the decision results
from unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.)
“ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a
claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption
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that counsel’s conduct falls within the wide range of reasonable professional
assistance.’ ” [Citation.] . . . “[C]ourts should not second-guess reasonable, if difficult,
tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally
not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of
the available facts.” [Citation.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 954.)
The prosecutor retained a narcotics expert to opine that defendant possessed
methamphetamine for the purpose of sale. Viega provided testimony controverting the
opinion of the People’s narcotics expert. The defense theory was that defendant was a
methamphetamine user, not a methamphetamine seller. Defense counsel relied on
Viega’s testimony to argue that defendant’s circumstances did not automatically indicate
intent to sell methamphetamine, and that the jury could reasonably infer defendant was a
methamphetamine user based on the evidence. Defense counsel said the jury should give
Viega’s testimony more weight than Officer Lannom’s testimony because Viega had
personal knowledge about methamphetamine use and she currently counseled
methamphetamine addicts. In comparison, Officer Lannom’s knowledge came from
people he contacted as a police officer, his viewpoint was biased, and he could not
describe an average methamphetamine user.
Defendant says Viega should have testified that a methamphetamine user would
not necessarily look underweight and gaunt or have missing teeth or open sores, and a
methamphetamine user who had 10 grams of methamphetamine on his person would not
necessarily be under the influence of methamphetamine. But the fact that defendant
wishes his witness had said something different does not necessarily establish ineffective
assistance. Viega made various statements helpful to defendant, such as that some
methamphetamine users did not exhibit the typical symptoms of methamphetamine use
and a person could test positive for methamphetamine but not exhibit any symptoms.
She also told the jury some methamphetamine users take a break from using
methamphetamine; they go to sleep, eat, and rest up and a couple of days later figure out
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how they can get money to buy more methamphetamine. Viega’s testimony supported
defense counsel’s argument.
In addition, defendant claims Viega should have testified that a methamphetamine
user could possess more than 10 grams of methamphetamine for personal use. But Viega
did say that. Her testimony supported defense counsel’s argument that possession of
10.37 grams of methamphetamine did not necessarily indicate intent to sell.
Defendant says Viega should have testified that a methamphetamine user could
carry large amounts of cash and methamphetamine. Viega provided such testimony. She
said there was a time when she was not trying to sell drugs, when she had “large
amounts” of both money and drugs.
Given the defense theory, we cannot say that defense counsel was deficient in
calling Viega as a defense narcotics expert.
B
We turn next to defendant’s alternative claim that his defense counsel did not
adequately prepare Viega for trial.
Defense counsel retained Viega five days before the first day of trial, when the
first narcotics expert defense counsel retained had a family emergency and did not return
to California by the continued trial date. Defense counsel obtained Viega’s name from
the expert list of the Sacramento County Office of the Public Defender. Defense counsel
spoke with Viega prior to Viega’s testimony. And defense counsel was able to make an
offer of proof as to Viega’s trial testimony.
The record does not show what steps defense counsel took to prepare Viega for
her trial testimony, or that her testimony would have been different had there been greater
preparation. The fact that Viega’s testimony was not entirely favorable does not establish
that defense counsel was deficient. (People v. Williams (1997) 16 Cal.4th 153, 263 [no
amount of preparation can make a witness impervious to effective cross-examination];
People v. Gates (1987) 43 Cal.3d 1168, 1213-1214 [“It is not uncommon for even the
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most carefully prepared witness to give an occasional surprise answer”], disapproved an
another point in People v. Williams (2010) 49 Cal.4th 405, 459 .) Defendant has not
established that defense counsel was deficient in preparing Viega to testify. (People v.
Bolin, supra, 18 Cal.4th at p. 333 [rejecting claim that counsel was ineffective in failing
to anticipate witness’s testimony in part because defendant did not establish additional
investigation would have produced favorable evidence]; People v. Hines (1997)
15 Cal.4th 997, 1032; People v. Williams, supra, 16 Cal.4th at p. 263 [noting that even
assuming trial counsel had not fully prepared every witness, the record did not suggest
that any witness’s testimony would have been different had that witness been prepared in
the manner the defendant suggested].)
Defendant asserts, without analysis, that it is reasonably probable he would not
have been convicted if his trial counsel was not ineffective in preparing Viega for trial.
We need not discuss claims asserted in a perfunctory manner. (People v. Freeman (1994)
8 Cal.4th 450, 482, fn. 2; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [claim
not supported by citations and analysis is forfeited].)
II
Defendant also contends his trial counsel was ineffective in failing to object when
the prosecutor commented on the fact that defendant did not testify.
Defendant claims the prosecutor violated Griffin v. California (1965) 380 U.S. 609[14 L.Ed.2d 106] (Griffin). He acknowledges that his trial counsel’s failure to object to
the asserted Griffin error in the trial court forfeits a prosecutorial misconduct claim. In
general, a defendant must make a timely objection and request a curative admonition in
order to preserve a claim of prosecutorial misconduct for appellate review. (People v.
Gonzales (2012) 54 Cal.4th 1234, 1275.) Defense counsel did not object to the alleged
misconduct by the prosecutor or request a curative admonition from the trial court. That
failure forfeits defendant’s claim the prosecutor committed misconduct by violating
Griffin. (People v. Turner (2004) 34 Cal.4th 406, 421.) Defendant, nevertheless, claims
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his trial counsel’s failure to object to the prosecutor’s comments was ineffective
assistance.
Defendant’s trial counsel argued, among other things, that defendant was a
methamphetamine user, he possessed the methamphetamine for personal use, some
people dealt only in cash, there was no evidence defendant did not work or have money,
he could have had methamphetamine in his system but not show symptoms, and there
were no scales, pay-owe sheets, or packing materials. In addition, referring to Viega’s
testimony, defense counsel argued it was not uncommon for a methamphetamine user to
have 10 grams of methamphetamine, not all methamphetamine users exhibited the same
symptoms, and some did not carry paraphernalia or use the methamphetamine
immediately.
In her rebuttal argument, the prosecutor said it was not reasonable to conclude that
a user possessed 10 grams of methamphetamine strictly for personal use; even if the
symptoms of methamphetamine use differ, a heavy methamphetamine user would show
some sign of addiction and there was no evidence defendant was a methamphetamine
addict or user.
The prosecutor said defense counsel talked about holding the People to its burden
beyond a reasonable doubt and not letting the People shift that burden. The prosecutor
then said: “She’s right. The People do have the burden in this case. [¶] However, just
because the defense does not have the duty or an obligation to put on any evidence, does
that mean that they somehow cannot or are forbidden to? No. Not at all. Not at all.
They have just as much right, the subpoena power, the ability to call witnesses, the ability
to bring people in here and present evidence and have them testify and give you evidence
and factual information to make a determination. They have that ability. [¶] You know,
if there was some witness somewhere who could give us some other explanation, either
as to the defendant’s drug use or as to an explanation for the presence of all that money,
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almost $700 in cash, they have the ability to call that person. There’s no -- you know,
they’re not forbade from doing so.”
A prosecutor may not directly or indirectly comment on defendant’s failure to
testify. (People v. Hovey (1988) 44 Cal.3d 543, 572; Griffin, supra, 380 U.S. at p. 615
[14 L.Ed.2d at p. 110].) Thus, she may not refer to the absence of evidence that only
defendant’s statement or testimony could provide. (People v. Hughes (2002) 27 Cal.4th
287, 372; People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1244.) But a prosecutor may
comment on the state of the evidence or defendant’s failure to introduce material
evidence or call logical witnesses. (People v. Hovey, supra, 44 Cal.3d at p. 572;
People v. Gonzales, supra, 54 Cal.4th at p. 1275.) And where witnesses other than
defendant could contradict the prosecution’s evidence, it is permissible for the prosecutor
to refer to the absence of evidence. (See People v. Johnson (1992) 3 Cal.4th 1183, 1229
[defendant claimed he was not at the crime scene but presented no alibi evidence to
support the contention].)
The remarks to which defendant objects are similar to those in People v. Cornwell
(2005) 37 Cal.4th 50, 90-91, disapproved on another point in People v. Doolin (2009)
45 Cal.4th 390, 421, footnote 22, and People v. Morris (1988) 46 Cal.3d 1, 35-36,
disapproved on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 543, footnote 5.
In both cases there was no Griffin error. Here, defense counsel argued there were
reasonable explanations for the evidence, and those explanations did not point to intent to
sell methamphetamine. The prosecutor responded, in general terms, that there was no
evidence of “some other explanation.” The prosecutor did not refer, directly or
indirectly, to defendant’s failure to testify.
Defendant acknowledges he was not the only witness who could have testified he
was a methamphetamine addict. He argues, however, only he could testify about topics
such as the extent of his drug habit, why he possessed the methamphetamine and cash,
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his intentions, and why he carried separate hidden baggies. Nonetheless, Viega testified
about many aspects of methamphetamine use.
The prosecutor’s statements did not violate Griffin because it is not reasonably
likely the jury could have understood the challenged comments to refer to defendant’s
failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663 [describing standard for
examining whether comment violates Griffin].) Defense counsel is not ineffective for
failing to object to the challenged remarks when the prosecutor did not engage in
misconduct. (People v. Medina (1995) 11 Cal.4th 694, 756.)
Even if the prosecutor’s comments constituted Griffin error and defense counsel
was deficient in failing to object to the prosecutor’s statements, it is not reasonably
probable that, but for defense counsel’s omission, defendant would have obtained a more
favorable result. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008-1009 [we apply
the Strickland v. Washington, supra, 466 U.S. 668 [80 L.Ed.2d 674] “reasonable
probability” standard to evaluate an ineffective assistance of counsel claim even when
defense counsel’s alleged error involves the failure to preserve the defendant’s
constitutional rights].) There is compelling evidence of defendant’s guilt. Even if the
challenged statements are a reference to defendant’s failure to testify, the reference is
indirect and brief.
In addition, the trial court instructed the jury that defendant had an absolute
constitutional right not to testify, that the jury must not consider the fact that defendant
did not testify, that neither side is required to call witnesses who may have information
about the case or to produce all physical evidence that may have relevance, and that
nothing the attorneys said was evidence. We presume the jury followed those
instructions. (People v. Boyette (2002) 29 Cal.4th 381, 448.) Under the circumstances,
there was no prejudicial error by defendant’s trial counsel.
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III
Defendant argues the cumulative effect of his trial counsel’s errors in failing to
adequately prepare Viega for trial or in calling Viega as a witness and in failing to object
to Griffin error rendered his trial fundamentally unfair. Having concluded there is no
prejudicial error, this claim lacks merit.
IV
We asked the parties to submit supplemental briefs on whether we should modify
the judgment to reflect that, as to the prior conviction enhancements, defendant is
sentenced to a consecutive term of nine years (three years each) pursuant to section
11370.2, subdivision (c), rather than subdivision (a), and whether we should direct the
trial court to amend the abstract of judgment to reflect the judgment as modified and to
correct the abstract of judgment to reflect the four-year sentence the trial court imposed
on the count two conviction for transportation of a controlled substance.
A
The parties agree section 11370.2, subdivision (a) does not apply because
defendant was not convicted of any statute listed in subdivision (a). The Attorney
General notes that subdivision (c) is the applicable statute. We agree with the parties.
Section 11370.2, subdivision (a) applies where a defendant is convicted of violating or
conspiring to violate section 11351, 11351.5 or 11352. Section 11370.2, subdivision (c)
applies where a defendant is convicted of violating or conspiring to violate section 11378
or 11379. In this case defendant was convicted of violating sections 11378 and 11379.
The parties disagree, however, on whether modification of the judgment is
appropriate. Defendant argues the three-year enhancements imposed under
subdivision (a) must be stricken as unauthorized sentences. The Attorney General
disagrees, urging us to modify the judgment. We agree with the Attorney General.
Reference to the wrong subdivision is not fatal to the imposition of a sentencing
enhancement if the information put the defendant on notice that a sentence enhancement
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would be sought, notified him of the facts supporting the enhancement, and there is no
showing that the defendant was misled to his prejudice. (People v. Neal (1984)
159 Cal.App.3d 69, 73.)
Here, defendant had sufficient notice and there is no indication of prejudice.
Defendant was charged with possession of a controlled substance for sale (§ 11378 --
count one) and transportation of a controlled substance (§ 11379, subd. (a) -- count two).
Although the amended information cited the wrong subdivision, it informed defendant
the prosecution would seek enhancements under section 11370.2 because defendant
suffered three prior section 11378 convictions. Under section 11370.2, subdivision (c),
as under subdivision (a), defendant could receive, in addition to any other punishment
authorized by law, a consecutive three-year term for each qualifying prior felony
conviction. The probation report also cited the wrong subdivision, but it recommended a
nine-year sentence under section 11370.2. Defense counsel acknowledged at the
sentencing hearing the trial court could impose three-year sentences on each of
defendant’s prior drug sales convictions. Defendant does not claim he would have
prepared his case differently if the amended information cited subdivision (c) instead of
subdivision (a), nor does he claim he did not receive notice he was subject to enhanced
punishment under section 11370.2 if the jury convicted him on counts one and two and
the allegations that he had prior convictions for violating section 11378 were found true.
We conclude the section 11370.2 enhancement sentences are valid because
defendant received sufficient notice and there is no indication of prejudice. (People v.
Neal, supra, 159 Cal.App.3d at pp. 72-74.) We will modify the judgment to reflect that
defendant is sentenced to a consecutive term of nine years (three years each) pursuant to
section 11370.2, subdivision (c), and we will affirm the judgment as modified. The
modification reflects the applicable subdivision and does not change the length of the
sentence imposed because both section 11370.2, subdivisions (a) and (c) provide for
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additional punishment of a full, separate, and consecutive three-year term for each
qualifying prior felony conviction. (§ 11370.2, subds. (a), (c).)
B
The parties agree the abstract of judgment should be corrected to reflect the oral
pronouncement of judgment on count two. Although the trial court orally imposed a
four-year sentence on the count two conviction for transportation of a controlled
substance, the abstract of judgment incorrectly references a three-year sentence on count
two. We will direct the trial court to correct the abstract of judgment to reflect the four-
year sentence the trial court imposed on the count two conviction for transportation of a
controlled substance.
DISPOSITION
The judgment is modified to reflect that defendant is sentenced to a consecutive
term of nine years (three years each) pursuant to section 11370.2, subdivision (c). The
judgment is affirmed as modified. The trial court is directed to amend the abstract of
judgment to reflect the judgment as modified and to correct the abstract of judgment to
reflect the four-year sentence the trial court imposed on the count two conviction for
transportation of a controlled substance. The trial court shall forward a certified copy of
the amended and corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
MAURO , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.
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