People v. Rascon

Filed 4/3/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B269000
Plaintiff and Respondent,
(Los Angeles County
Super. Ct. No. VA133796)
v.
ALICE RASCON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Raul Anthony Sahagun, Judge. Affirmed
as modified.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Jason Tran, and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts I, II, III and V of the Discussion.
Alice Rascon appeals from the judgment entered on her
convictions for drug, firearm, and ammunition possession. She
contends the trial court admitted a confession taken in violation
of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) in that the
police interrogated her in a way calculated to undermine her ability
to make a free and rational choice about speaking. Rascon also
contends insufficient evidence supported two firearm enhancements,
and a sentence on one count should have been stayed because
it constituted multiple punishment for a single act. She further
contends that she is entitled to have her sentence for felony
possession for sale of marijuana reduced to a misdemeanor. We
agree that sentence on one of the counts should have been stayed,
and otherwise affirm.
BACKGROUND
On April 11, 2012, Los Angeles County Sheriff‟s deputies
executed a search warrant at Rascon‟s residence in Whittier. They
found Rascon in the kitchen, informed her that she was the suspect
named in the warrant, and detained her in a patrol car. While
Rascon was seated in the car, Detective William Campbell asked
her what bedroom she lived in and she said the north bedroom.
Detective Campbell then asked if she had anything illegal in the
house. Rascon responded “yes.”
Detective Campbell then left Rascon alone in the patrol car
and participated in the search. The search recovered five bags of
methamphetamines and 11 bags of marijuana from an unlocked safe
in a closet, as well as numerous unused plastic baggies and three
digital scales from the closet. The deputies also found ammunition
and two operable, loaded handguns in an unlocked desk drawer
in an office in the house. The office also contained a monitor
displaying a live video feed from two exterior cameras surveilling
2
the front approach to the house. Mail addressed to Rascon was
found in the sole bedroom in the house.
After the search, Detective Campbell returned to Rascon in
the patrol car, informed her she was under arrest, and gave her
a Miranda advisement. Rascon waived her Miranda rights by
signing a preprinted form. In addition to circling answers on the
form indicating the waiver, Rascon wrote, “I show[ed] the detectives
where the meth was in the closet.”
Detective Campbell asked Rascon who resided in the house.
Rascon replied that she lived there with William Kennedy, her
boyfriend. Detective Campbell asked whether she owned the drugs
the deputies found. She admitted the drugs belonged to her, and
stated Kennedy had nothing to do with them. Rascon refused to
reply to a question about the scales and unused baggies, but when
asked about a cellular phone found in the house, she said it belonged
to her. Finally, when Detective Campbell asked about the guns
deputies found, Rascon said, “I showed you where the meth and
the handguns were.”
Rascon was charged with possession of methamphetamines
while armed, possession of methamphetamines and marijuana for
sale, possession of ammunition, and possession of firearms by a
felon, and it was alleged she was personally armed with a firearm
while in possession of methamphetamines for sale and had suffered
three prior narcotics convictions and served multiple prior prison
terms. (Health & Saf. Code, §§ 11359, 11370.1, subd. (a), 11378;
Pen. Code, §§ 667.5, subd. (b), 11370.2, subd. (c), 12022, subd. (c),
29800, subd. (a)(1), 30305, subd. (a)(1).)
A jury convicted Rascon on all counts and found true the
allegation that she was armed with a firearm while in possession
of methamphetamines. In a bifurcated trial, the trial court found
Rascon had suffered prior narcotics convictions, but the court struck
the prior prison term allegations without rendering a verdict on
3
them. The court sentenced Rascon to three years in prison for
methamphetamine possession plus five consecutive years for the
firearm enhancement. The court struck the remaining enhancement
allegations. The court imposed concurrent terms for the marijuana
and armed methamphetamine possession convictions and imposed
and stayed execution of sentence for the ammunition and
felon/firearm possession convictions pursuant to Penal Code
section 654, subdivision (a), which prohibits multiple punishment for
a single act. The court imposed various fines and fees and awarded
Rascon 259 days of presentence custody credit.
Rascon timely appealed.
DISCUSSION
I. There Was No Miranda Violation
“The Fourteenth Amendment to the federal Constitution and
article I, section 15, of the state Constitution bar the prosecution
from using a defendant‟s involuntary confession.” (People v. Massie
(1998) 19 Cal. 4th 550, 576.) “[A]ny statement obtained from a
criminal suspect by a law enforcement officer during custodial
interrogation is potentially involuntary because such questioning
may be coercive.” (People v. Neal (2003) 31 Cal. 4th 63, 79.) Thus,
in Miranda, “the United States Supreme Court laid down its now
familiar rule” (ibid.) that “ „a suspect [may] not be subjected to
custodial interrogation unless he or she knowingly and intelligently
has waived the right to remain silent, to the presence of an attorney,
and, if indigent, to appointed counsel.‟ ” (People v. Dykes (2009)
46 Cal. 4th 731, 751.) “In general, if a custodial suspect, having
heard and understood a full explanation of his or her Miranda
rights, then makes an uncompelled and uncoerced decision to talk,
he or she has thereby knowingly, voluntarily, and intelligently
waived them.” (People v. Cunningham (2015) 61 Cal. 4th 609, 642;
see also (Oregon v. Elstad (1985) 470 U.S. 298, 308 (Elstad) [Once a
4
suspect receives the Miranda advisements, he “is free to exercise his
own volition in deciding whether or not to make a statement to the
authorities.”].)
A suspect who makes an incriminating statement in response
“to unwarned yet uncoercive questioning” may later waive his rights
and confess after being “given the requisite Miranda warnings.”
(Elstad, supra, 470 U.S. at p. 318.) In such “midstream Miranda
cases” (People v. Camino (2010) 188 Cal. App. 4th 1359, 1363
(Camino)), “the unwarned admission must be suppressed,” but
“the admissibility of any subsequent statement” will depend upon
“whether it is knowingly and voluntarily made.” (Elstad, supra,
470 U.S. at p. 309.) In Elstad, the Supreme Court held that in
such cases, “[t]he relevant inquiry is whether, in fact, the second
statement was also voluntarily made. As in any such inquiry, the
finder of fact must examine the surrounding circumstances and
the entire course of police conduct with respect to the suspect in
evaluating the voluntariness of his statements. The fact that a
suspect chooses to speak after being informed of his rights is, of
course, highly probative.” (Id. at p. 318.)
In Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), the police
deliberately used a two-step questioning technique whereby they
withheld a Miranda advisement until a suspect confessed, then
advised the suspect pursuant to Miranda, then led the suspect
to cover the same ground until a second confession is obtained.
(Seibert, supra, 542 U.S. at pp. 605-606 (plur. opn. of Souter, J.).)
Police admitted the tactic was designed to undermine the Miranda
warning by inducing a suspect “to conclude that the right not to
respond did not exist when the earlier incriminating statements
were made.” (Id. at p. 620 (conc. opn. of Kennedy, J.).) Justice
Souter, writing for a four-justice plurality, concluded that a second
confession obtained in such circumstances is inadmissible because
the “midstream recitation of warnings after interrogation and
5
unwarned confession could not effectively comply with Miranda‟s
constitutional requirement.” (Id. at p. 604 (plur. opn. of Souter, J.).)
“By any objective measure . . . it is likely that if the interrogators
employ the technique of withholding warnings until after
interrogation succeeds in eliciting a confession, the warnings will
be ineffective in preparing the suspect for successive interrogation,
close in time and similar in content. After all, the reason that
question-first is catching on is as obvious as its manifest purpose,
which is to get a confession the suspect would not make if he
understood his rights at the outset; the sensible underlying
assumption is that with one confession in hand before the warnings,
the interrogator can count on getting its duplicate, with trifling
additional trouble.” (Id. at p. 613 (plur. opn. of Souter, J.).)
The Siebert plurality identified “a series of relevant facts
that bear on whether Miranda warnings delivered midstream could
be effective enough to accomplish their object: [T]he completeness
and detail of the questions and answers in the first round of
interrogation, the overlapping content of the two statements, the
timing and setting of the first and the second, the continuity of
police personnel, and the degree to which the interrogator‟s
questions treated the second round as continuous with the first.”
(Seibert, supra, 542 U.S. at p. 615 (plur. opn. of Souter, J.).)
Justice Kennedy, writing separately, generally agreed with
the plurality‟s views. (Seibert, supra, 542 U.S. at p. 618 (conc.
opn. of Kennedy, J.).) He believed, however, that the plurality‟s
“multifactor test that applies to every two-stage interrogation may
serve to undermine [the] clarity” of Miranda. (Id. at p. 622 (conc.
opn. of Kennedy, J.).) Justice Kennedy “would apply a narrower test
applicable only in the infrequent case . . . in which the two-step
interrogation technique was used in a calculated way to undermine
the Miranda warning.” (Ibid.) In such cases, “postwarning
statements that are related to the substance of prewarning
6
statements must be excluded absent specific, curative steps.”1
(Id. at p. 621 (conc. opn. of Kennedy, J.).) When interrogators
do not employ a “deliberate two-step strategy,” however, “[t]he
admissibility of postwarning statements should continue to be
governed by the principles of Elstad.” (Id. at p. 622 (conc. opn.
of Kenney, J.).)
Because the Siebert Court produced no majority opinion and
Justice Kennedy “ „concurred in the judgment[] on the narrowest
grounds‟ ” (Marks v. United States (1977) 430 U.S. 188, 193),
courts have considered Justice Kennedy‟s threshold requirement
of a “deliberate two-step strategy” as part of the Siebert holding.
(See, e.g., Camino, supra, 188 Cal.App.4th at p. 1370 & fn. 5;
United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158.)
In determining deliberateness, “courts should consider whether
objective evidence,” such as the Siebert plurality identified, as well
as “any available subjective evidence, such as an officer‟s testimony,
support an inference that the two-step interrogation procedure was
used to undermine the Miranda warning.” (Id. at p. 1158.)
A trial court‟s determination of Siebert-deliberateness is a
factual finding, which we review for substantial evidence. (Camino,
supra, 188 Cal.App.4th at p. 1372.)
1 Justice Kennedy explained that “[c]urative measures
should be designed to ensure that a reasonable person in the
suspect‟s situation would understand the import and effect of
the Miranda warning and of the Miranda waiver. For example,
a substantial break in time and circumstances between the
prewarning statement and the Miranda warning may suffice in
most circumstances, as it allows the accused to distinguish the
two contexts and appreciate that the interrogation has taken a
new turn. [Citation.] Alternatively, an additional warning that
explains the likely inadmissibility of the prewarning custodial
statement may be sufficient.” (Seibert, supra, 542 U.S. at p. 622
(conc. opn. of Kennedy, J.).)
7
In the instant case, Rascon moved in limine to suppress
all of her custodial statements. Detective Campbell was the sole
witness at the resulting Evidence Code section 402 hearing. He
testified that he asked Rascon at the start of the interview if she
had anything illegal in the house. Rascon answered “yes.” The
interview was interrupted when Detective Campbell left Rascon
to participate in the search. Rascon did not recall how much time
passed before the search was completed and the interview resumed.
When Detective Campbell returned, he advised Rascon of
her Miranda rights and obtained her waiver. He then asked who
lived in the house and who owned the drugs and cell phone the
deputies found. Rascon replied that she lived in the house with her
boyfriend, but the drugs and phone were hers. Rascon refused to
answer a question about unused baggies and digital scales, but
when asked about the guns deputies found said, “I told you where
the meth . . . and handguns were.”
Detective Campbell testified Rascon gave her answers freely
and voluntarily. She was not handcuffed while in the patrol car,
and he issued no threats and made no statement implying that
failure to answer would be detrimental to her. Detective Campbell
took no notes, and the interrogation was not recorded.
The trial court granted Rascon‟s motion to suppress the
statements she made before waiving her Miranda rights. The court,
however, found no evidence that Detective Campbell employed a
deliberate strategy to undermine the Miranda warning by inducing
Rascon to confess before giving the warning and then leading her to
repeat the confession after the warning. The court therefore denied
Rascon‟s motion to suppress statements made after she waived her
Miranda rights.
Substantial evidence supports the trial court‟s finding that
Detective Campbell did not deliberately use a two-step interrogation
technique to undermine the Miranda warning. The prewarning
8
interrogation was nondetailed and incomplete. Detective Campbell
asked what bedroom she lived in and whether there was anything
illegal in the house. Rascon identified her bedroom and revealed
that she “had” something illegal in the house. The interview was
then interrupted, but the interruption was caused by Detective
Campbell‟s desire to participate in the search, not by artifice. The
interview resumed only after passage of a significant amount of
time—long enough to search a house. Nothing in either Detective
Campbell‟s questions or Rascon‟s answers suggested that either
person treated the second round of interrogation as a continuation
of the first. Further, the content of Rascon‟s pre- and postwarning
statements did not substantially overlap. Prior to being given the
Miranda advisement, Rascon disclosed that she lived in the house
and there was something illegal in the house. In the postwarning
part of the interview, Rascon revealed that she owned the drugs in
the house, that she knew the drugs were methamphetamines, and
that she knew guns were in the house.
Moreover, nothing suggests police used inherently coercive
tactics or methods that rendered Rascon‟s initial admission
involuntary or undermined her will to invoke her rights once they
were read to her. Therefore, substantial evidence supports the trial
court‟s conclusion that Rascon knowingly and voluntarily decided
to forgo her rights to remain silent and to have the assistance of
counsel.
Rascon argues some indicia of a deliberate two-step
interrogation exist, as both parts of the interrogation were
conducted by the same person in the same location. These factors
arguably could have permitted the trial court to conclude the
interview was improper, but our review is to determine only
whether substantial evidence supports the court‟s contrary finding.
As discussed above, other factors support the court‟s finding that
Rascon‟s Miranda rights were not violated.
9
Given this conclusion, we need not address Rascon‟s
arguments that absent her confession, no substantial
evidence supported her convictions for possession for sale of
methamphetamine and marijuana, possession of methamphetamine
while armed, possession of a firearm by a felon, and possession
of ammunition.
II. Substantial Evidence Supported the Finding
That Rascon Was Armed
The jury found true the special allegation that Rascon was
personally armed while in possession of methamphetamines for sale.
Rascon argues insufficient evidence supported the finding because
the guns recovered from her house were far away from both herself
and the drugs. We disagree.
“The desire of the Legislature to prevent death and injury as
a result of the involvement of firearms in the commission of crime is
manifest from the various provisions for increased punishment for
crimes where firearms are in some way involved. The underlying
intent of the Legislature is to deter persons from creating a potential
for death or injury resulting from the very presence of a firearm at
the scene of the crime. Thus, there is aggravated punishment for a
person who is armed with a deadly weapon even though no use is
made of the weapon. (People v. Reaves (1974) 42 Cal. App. 3d
852, 856-857.)
As pertinent here, subdivision (c) of Penal Code section 12022
imposes a special sentence enhancement of three, four, or five years
on anyone “personally armed with a firearm in the commission of a
violation . . . of Section . . . 11378” (possession of methamphetamine
for the purpose of sale). “[W]hen . . . a defendant engaged in felony
drug possession, which is a crime of a continuing nature, has a
weapon available at any time during the felony to aid in its
commission, the defendant is „armed with a firearm in the
10
commission . . . of a felony.‟ ” (People v. Bland (1995) 10 Cal. 4th
991, 999.)
In assessing the sufficiency of evidence supporting a sentence
enhancement, we view the entire record, including all reasonable
inferences, in a light most favorable to the judgment. A sentence
enhancement will be upheld if it is supported by substantial
evidence, i.e., evidence that is credible and of solid value. (People v.
Osband (1996) 13 Cal. 4th 622, 690; In re Alexander L. (2007)
149 Cal. App. 4th 605, 610.) An enhancement will be reversed only
when the evidence would not permit any reasonable trier of fact to
find the special allegation true beyond a reasonable doubt. (People
v. Bolin (1998) 18 Cal. 4th 297, 331.) Reversal is not warranted
simply because the evidence might support contrary findings
equally as well as actual findings. (People v. Ceja (1993) 4 Cal. 4th
1134, 1139.)
Here, Rascon kept two loaded handguns in a desk drawer in
an office in her residence. In the same room, there was a monitor
showing the front approach to the house. This placed the guns
relatively close not only to the drugs, which were in a closet outside
the office, but also to a monitor that could reasonably be inferred to
have assisted Rascon in selling drugs by providing security for the
operation. Therefore, the guns were readily accessible to aid in
the commission of the drug offense. (See, e.g., People v. Bland,
supra, 10 Cal.4th at p. 1000 [evidence that an assault weapon was
kept in a bedroom near drugs supported “ „armed with a firearm‟ ”
enhancement]; People v. Wandick (1991) 227 Cal. App. 3d 918,
921, 928 [firearms in bedroom and drugs in other rooms supported
armed enhancement]; cf. People v. Osuna (2014) 225 Cal. App. 4th
1020, 1030 [a defendant not in the residence possesses but is not
armed with weapons located at his residence].)
Rascon argues the guns found in the office were not readily
available for use because they were not in close proximity to either
11
herself or the drugs. The argument is without merit. For a firearm
enhancement to be proper in a drug case, the gun need only be
readily accessible; it need not always be in close proximity either to
the owner or the drugs. Because drug possession is a continuing
offense, the jury could reasonably infer that Rascon at some point
had ready access to both the guns and drugs in her own house.
III. Substantial Evidence Supported the
Finding That the Guns Were Operable
The jury found Rascon guilty of possessing
methamphetamines while armed with an operable firearm.
Rascon argues insufficient evidence supported the verdict because
nothing suggested the guns recovered from her house were
operable. We disagree.
Any person who unlawfully possesses methamphetamines
“while armed with a loaded, operable firearm is guilty of a felony
punishable by imprisonment in the state prison for two, three, or
four years.” (Health & Saf. Code, § 11370.1, subd. (a).)
Here, deputies recovered methamphetamines and two loaded
handguns from Rascon‟s home. Rascon admitted the drugs were
hers. Two deputies testified that they examined the guns, which
appeared to be operable.
Rascon argues the only way to prove a gun is operable is to
test fire it, which the deputies in this case did not do. No principle
or authority supports the argument. That the guns were loaded
permitted the jury to infer they were operable, because there is no
reason to load a gun that does not work.
12
IV. Rascon Is Not Automatically Entitled to a
Reduction of Her Sentence on Count 10
Rascon contends her sentence on count 10 for possession
of marijuana for sale in violation of Health and Safety Code
section 11359 “must be corrected” to reflect a post-sentencing
statutory amendment that reduced the penalty for that crime.2
We disagree.
At the time Rascon committed her crimes, and at the time
the trial court sentenced her, Health and Safety Code section 11359
provided: “Every person who possesses for sale any marijuana,
except as otherwise provided by law, shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 of the
Penal Code.” Penal Code section 1170, subdivision (h) provides
generally for “imprisonment in a county jail for 16 months, or
two or three years.” Here, the court imposed the upper term of
three years, the sentence to run concurrent to other specified terms.
After Rascon was sentenced, the electorate passed the Control,
Regulate and Tax Adult Use of Marijuana Act, Proposition 64,
which amended Health and Safety Code section 11359 to provide,
generally, that “[e]very person 18 years of age or over who possesses
marijuana for sale shall be punished by imprisonment in a county
jail for a period of not more than six months or by a fine of not more
than five hundred dollars ($500), or by both such fine and
2 After the parties filed their briefs, Rascon asserted
this argument in a letter brief filed with the court in which she
requested that we consider the matter at oral argument. We
granted her request. The Attorney General subsequently filed a
written response and the parties were given the opportunity to
argue the issue during oral argument.
13
imprisonment.” (Health & Saf. Code, § 11359, subd. (b).)3 Thus,
if the amendment is retroactive and this general rule applies to
Rascon, her felony conviction for violating Health and Safety Code
section 11359 would be reduced to a misdemeanor.
Proposition 64 also added Health and Safety Code
section 11361.8, which allows a “person currently serving a sentence
for a conviction” of Health and Safety Code section 11359 (and other
marijuana-related crimes) to petition the trial court to recall the
person‟s sentence and resentence the person in accordance with the
amended statute. (Health & Saf. Code, § 11361.8, subd. (a).) If an
inmate files such a petition and satisfies the statutory criteria
for relief, “the court shall grant the petition . . . unless the court
determines that granting the petition would pose an unreasonable
risk of danger to public safety.” (Health & Saf. Code, § 11361.8,
subd. (b).) An “unreasonable risk of danger to public safety” is
defined as “an unreasonable risk that the petitioner will commit
a new violent felony within the meaning of [Penal Code section 667,
subdivision (e)(2)(C)(iv)].” (Pen. Code, § 1170.18, subd. (c); Health &
Saf. Code, § 11361.8, subd. (b)(2).)
Rascon contends that the amendment to Health and Safety
Code section 11359 should be applied retroactively to reduce
3 There are exceptions to the general rule. The penalty
prescribed in Penal Code section 1170, subdivision (h), still
applies if the defendant: (1) has a prior conviction for certain
serious or violent felonies, or is required to register as a sex
offender, (2) has two or more prior convictions of possessing
marijuana for sale, (3) commits the offense in connection with the
sale or attempted sale of marijuana to a minor, or (4) knowingly
employs a person 20 years old or younger to cultivate, transport,
carry, sell, offer to sell, give away, or peddle marijuana. (Health &
Saf. Code, § 11359, subds. (c)-(d).) It is not apparent from our
record whether any of the exceptions apply.
14
her conviction on count 10 to a misdemeanor. She relies on
In re Estrada (1965) 63 Cal. 2d 740 (Estrada). In Estrada, the
Supreme Court established an exception to the general rule that
a statute that is silent as to whether it operates prospectively or
retroactively will be presumed to operate prospectively only.
(People v. Brown (2012) 54 Cal. 4th 314, 323.) The exception applies
when a statute that is silent as to its retroactivity reduces the
penalty for a particular crime. In that situation, courts will presume
that “the new lighter penalty” will apply “to acts committed before
its passage[,] provided the judgment convicting the defendant of
the act is not final.” (In re Estrada, supra, 63 Cal.2d at p. 745.)
The Estrada Court explained that when the Legislature reduced a
crime‟s punishment, it “obviously expressly determined that its
former penalty was too severe and that a lighter punishment is
proper as punishment for the commission of the prohibited act.”
(Ibid.) Given this determination, the Court continued, the
Legislature must have intended that the lesser penalty applies
retroactively “because to hold otherwise would be to conclude
that the Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.”
(Ibid.)
In People v. Conley (2016) 63 Cal. 4th 646, 656 (Conley), our
Supreme Court considered whether, under Estrada, the Three
Strikes Reform Act of 2012, commonly known as Proposition 36,
applied retroactively to persons whose judgments were not yet
final. Proposition 36 amended the “Three Strikes” law to reduce
the penalty for some third strike offenders when the third strike
is not a serious or violent felony. It also enacted Penal Code
section 1170.126, which created a post-conviction procedure whereby
a prison inmate “presently serving” a third strike sentence for a
crime that was not a serious or violent felony may petition to recall
his or her sentence and be resentenced as a second strike offender.
15
(People v. Johnson (2015) 61 Cal. 4th 674, 682.) The inmate in
Conley argued that he was entitled under Estrada to the reduced
penalty because his judgment was not yet final and, therefore,
he did not “need to file a recall petition under Penal Code
section 1170.126.” (Conley, supra, 63 Cal.4th at pp. 655-656.) The
Supreme Court rejected the argument.
Proposition 36, the Conley Court explained, “is not silent on
the question of retroactivity. Rather, [Proposition 36] expressly
addresses the question in [Penal Code] section 1170.126, the
sole purpose of which is to extend the benefits of [Proposition 36]
retroactively.” (Conley, supra, 63 Cal.4th at p. 657.) Moreover,
the Court reasoned, by making resentencing available only when
the inmate‟s early release would not “pose an „unreasonable risk
of danger to public safety,‟ ” the electorate apparently intended
“to create broad access to resentencing for prisoners previously
sentenced to indeterminate life terms, but subject to judicial
evaluation of the impact of resentencing on public safety.”
(Id. at pp. 658-659, italics added.) This purpose would not be served
if, as the defendant argued, the statute “confer[red] an automatic
entitlement to resentencing” for inmates whose cases are still
pending on appeal. (Id. at p. 659.) There was no basis, the Court
concluded, to hold that the electorate intended “for courts to bypass
the public safety inquiry altogether in the case of defendants serving
sentences that are not yet final.” (Ibid.)
Conley‟s analysis applies with equal force here.
Proposition 64, like Proposition 36, “is not silent on the question
of retroactivity.” (See Conley, supra, 63 Cal.4th at p. 657.) It
provides for a procedure analogous to Proposition 36‟s procedure
“for application of the new lesser punishment to persons who have
previously been sentenced.” (Id. at p. 658; compare Health & Saf.
Code, § 11361.8 with Pen. Code, § 1170.126.) Proposition 64,
like Proposition 36, expressly restricts the availability of the
16
reduced criminal penalties to those inmates who do not pose an
unreasonable risk of danger to public safety (Health & Saf. Code,
§ 11361.8, subd. (b)), thereby making “retroactive application of
the lesser punishment contingent on a court‟s evaluation of the
defendant‟s dangerousness.” (Conley, supra, 63 Cal.4th at p. 658.)4
In light of the similarities between the two propositions as
to resentencing, we infer a similar intent on the part of the
electorate—to create access to resentencing for prisoners previously
sentenced for specified marijuana-related crimes, “but subject to
judicial evaluation of the impact of resentencing on public safety.”
(Id. at pp. 658-659.) And, just as conferring an automatic
entitlement to resentencing under Proposition 36 would undermine
that intent (id. at p. 659), so would a similar entitlement undermine
the apparent intent in enacting Proposition 64. We therefore
conclude that a person sentenced prior to the enactment of
Proposition 64 for violating Health and Safety Code section 11359
whose judgment is not yet final is not automatically entitled to the
reduction of punishment provided by the amendment to that statute.
4 The Safe Neighborhood and Schools Act, commonly known
as Proposition 47, enacted by the electorate in 2014, also reduces
penalties for certain crimes and provides a procedure for those
currently serving sentences for such crimes to petition to recall
the inmate‟s sentence that is analogous to the procedures in
Proposition 36 and Proposition 64. (Pen. Code, § 1170.18.) The
Supreme Court is currently considering whether Proposition 47
applies retroactively to a defendant who was sentenced before
Proposition 47‟s effective date but whose judgment is not yet final.
(People v. DeHoyos (2015) 238 Cal. App. 4th 363, review granted
Sept. 30, 2015, S228230.)
17
V. Stayed Sentence on Armed Possession Count
Penal Code section 654 provides in part: “An act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (Pen. Code,
§ 654, subd. (a).) The statute thus precludes multiple punishments
for a single act or an indivisible course of conduct. (People v. Hester
(2000) 22 Cal. 4th 290, 294.)
Here, the jury convicted Rascon of possession of
methamphetamines for sale while personally armed (count 7),
and found true the allegation that she possessed a firearm while
committing the crime. The court imposed a three-year base
sentence and a consecutive five-year enhancement. (Pen. Code,
§ 12022, subd. (c).) The jury also convicted Rascon of possession
of methamphetamines while armed with an operable firearm
(count 8). On this count, the court imposed a four-year sentence
to run concurrent to the sentence on count 7. (Health & Saf. Code,
§ 11370.1, subd. (a).) But evidence supporting both the
enhancement and the conviction on the latter count was the same:
Rascon possessed methamphetamines while armed with a gun.
Because this single act of possession formed the basis of both
sentences, the lesser sentence must be stayed. (See, e.g., People v.
Pearson (1986) 42 Cal. 3d 351, 359 [“when multiple convictions are
based on a single act, as in this case, . . . the use of such convictions
must not result in the defendant being „punished under more than
one‟ Penal Code provision”]; People v. Pitts (1990) 223 Cal. App. 3d
1547, 1558-1559.)
18
DISPOSITION
The trial court is ordered to amend the abstract of judgment
and file a minute order reflecting that the sentence on count 8, for
violation of Health and Safety Code section 11370.1, subdivision (a),
is stayed pursuant to Penal Code section 654, and to forward a
copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. As so modified, the judgment is
affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J.
LUI, J.
19