People v. Rockhold CA4/1

Filed 1/21/21 P. v. Rockhold CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076615
Plaintiff and Respondent,
v. (Super. Ct. No. SCN396034)
MICHAEL ANDREW ROCKHOLD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael D. Washington, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant Michael Andrew Rockhold was convicted by jury of one
count of transportation of methamphetamine for sale (Health & Saf. Code, §
11379, subd. (a)), and two counts of possession of methamphetamine for sale
(Health & Saf. Code, § 11378). Defendant stipulated that he committed one
of the crimes while he was released on bail (Pen. Code,1 § 12022.1), and
admitted that he had three prior convictions for which he had served a term
in prison (§ 667.5, subd. (b)). On September 27, 2019, the court sentenced
defendant to a total term of six years eight months in local custody, stayed
the enhancements for the prior prison convictions, and imposed fees, fines
and assessments. Defendant timely appealed.
We strike the enhancements for the prior prison convictions, and
otherwise affirm the conviction.
STATEMENT OF FACTS
Counts 1 and 2 - Transportation and Possession for Sale, January 28,
2019
In the early morning hours of January 28, 2019, an Oceanside police
officer observed defendant’s car drive past his marked vehicle and
immediately step on the brakes to slow down. Defendant then pulled into a
gas station and parked at the air and water pumps, but he remained sitting
in the car. The officer thought this conduct strange. He walked toward
defendant and when defendant opened his car door, the officer recognized
him from prior contacts. The officer conducted a pat-down search and found
that defendant had an illegal methamphetamine pipe, with
methamphetamine residue, in the defendant’s pocket.
The officer searched defendant’s car and found more than 100 grams of
methamphetamine hidden in the roof. A digital scale and equipment for
taking credit card payments were in a messenger bag and computer bag,
respectively, behind the passenger seat.
1 Further statutory references are to the Penal Code unless otherwise
designated.
2
A narcotics expert testified that the amount of methamphetamine
found was a large amount and was valued at about $700 to $800. However, if
divided into small portions for resale, it could net $3,000 to $5,000 for the
seller. Text messages found on defendant’s phone were indicative of sales
transactions. The expert opined that based on all the circumstances,
including the large amount of methamphetamine, the drug-sale text
messages, the scale and the credit card reader to collect payment, the
methamphetamine was transported and possessed for sales.
Count 3 - Possession for Sale, March 7, 2019
On the evening of March 7, 2019, an Oceanside police officer saw
defendant and his wife walking along a street in Oceanside. Defendant
appeared nervous as the officer approached. He took a backpack off his
shoulder and handed it to his wife. As he did so, a clear baggie fell out of the
backpack. Defendant stepped in front of the baggie to try to hide it from the
officer. When the officer asked what had fallen, defendant denied that
anything fell.
The baggie was retrieved by the officer. It contained two baggies inside
it. One held 12 grams of methamphetamine and the other held 13.61 grams
of methamphetamine—almost an ounce in total.
After being advised of and waiving his rights, defendant talked with
the officer. He told the officer he did not use much methamphetamine, and
preferred marijuana. Defendant pointed out he did not have the physical
characteristics of a heavy methamphetamine user, as he had all his teeth.
Defendant knew that a gram of methamphetamine cost about $20 to $30, and
that an ounce of methamphetamine weighed 28 to 30 grams and cost about
$400 to $500. Defendant claimed that the backpack was not his. He said
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someone gave him the backpack with electronics in it so that defendant could
fix them. The backpack held a couple of cell phones and a laptop computer.
An expert for the prosecution testified that it would be unusual for a
person who only used methamphetamine to carry around a large amount like
an ounce. Users usually carry only the amount they would use that day,
typically one-tenth of a gram at a time. Users carry smaller amounts to avoid
arrest for sales and to avoid being robbed. Defendant was stopped across the
street from his home, but said he was on his way to a store or to visit a friend.
It was odd, the expert said, that defendant, if only a user, would have carried
the large amount of drugs with him instead of leaving the drugs at home.
The expert offered the opinion that the methamphetamine was
possessed for sales. In reaching this conclusion the expert relied on an ounce
of methamphetamine costing about $250 to $350, but which could be sold for
much more when broken up into single-dose units. He noted that here, the
large amount of methamphetamine was divided into two separate baggies.
Defense
Defendant testified that he demolished and renovated property for
resale. He also stated he repaired electronics. Defendant said he and his
wife both used methamphetamine and marijuana. His wife primarily used
methamphetamine, whereas defendant preferred marijuana to ease
continuing pain from a wound sustained when he was in the armed forces.
Defendant said that the car he was driving in January did not belong to
him and he did not put the methamphetamine in the roof. He also claimed
that the backpack he was carrying in March was not his. He said someone
had given him the backpack so that he could repair the electronics that were
inside it. The person who gave him the backpack, he claimed, was a heavy
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methamphetamine user. Defendant said he knew nothing about the baggie
that fell out of the backpack.
DISCUSSION
I
Sufficient Evidence of Possession of Methamphetamine for Sale
Defendant contends there was insufficient evidence to support the
jury’s finding that he had the intent to sell the methamphetamine that he
possessed on March 7, 2019, count 3.
A. Standard of Review
On review for sufficient evidence we apply a well settled standard.
“[W]e must determine whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime . . . beyond a reasonable doubt. We review
the entire record in the light most favorable to the judgment below to
determine whether it discloses sufficient evidence—that is, evidence that is
reasonable, credible, and of solid value—supporting the decision, and not
whether the evidence proves guilt beyond a reasonable doubt. . . . If the
circumstances reasonably justify the findings made by the trier of fact,
reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.” (People v.
Jennings (2010) 50 Cal.4th 616, 638–639 (Jennings); Jackson v. Virginia
(1979) 443 U.S. 307, 318–319.) To prove possession for sale, the prosecution
must prove beyond a reasonable doubt that the defendant had the specific
intent to sell the contraband. Intent is usually proved by circumstantial
evidence. (People v. Johnson (2019) 32 Cal.App.5th 26, 58.)
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B. Analysis
Defendant contends that the evidence was insufficient to support the
finding that he possessed the methamphetamine for sale rather than for
personal use. Defendant relies on the lack of indicia of sales, such as scales
or pay-owe sheets, and the expert’s testimony that two heavy users could use
an ounce of methamphetamine in two weeks and that defendant and his wife
might have purchased two weeks’ supply in bulk to save money.
The expert acknowledged that defendant could have possessed the
methamphetamine for the personal use of himself and his wife but said it was
unlikely. Carrying an ounce of methamphetamine was equivalent to walking
around with thousands of dollars in one’s pocket, the expert testified, and it
would subject the user to being robbed or arrested for possession of
methamphetamine for sale. If robbed, the user could not report the loss to
the police. Users ordinarily left their drugs at home and carried only enough
for the next dose, which was usually a very small amount. Further, the
expert said he had never met anyone who used an ounce in a month. That
would amount to about .2 grams, three or four times per day. Defendant did
not have the ravaged body of a person who used methamphetamine so
heavily.
In addition, the methamphetamine had been divided into two almost
equal baggies, which is typical packaging for a person preparing to sell the
drug. Defendant was familiar with the prices of both a large quantity of the
drug and of an individual dose, although he claimed he used marijuana more
than methamphetamine. In addition, indicia of sales other than amount and
packaging were rarely present during a street arrest. Also, the expert stated
pay-owe sheets were obsolete with the advent of smart phones. Finally, the
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expert noted that dealers generally used a scale within an enclosed room and
did not carry scales when out and about on the street.
We conclude substantial evidence supports the jury’s conclusion that on
March 7, 2019, defendant possessed the methamphetamine for sale.
II
Prior Prison Convictions
Defendant alleges he is entitled to the benefit of the ameliorative
amendment to section 667.5, which makes prior prison conviction
enhancements applicable only when the prior conviction was for a sexually
violent offense. (See In re Estrada (1965) 63 Cal.2d 740, 744–745; People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 306–308.) The People agree.
They note that none of defendant’s three, one-year prior prison term
enhancements qualify as sexually violent offenses. We agree as well.
Therefore, we order the prior convictions stricken.
III
Fines and Fees
Defendant’s general contention is that the imposition of fines, fees and
assessments without a finding that he had the ability to pay them violated
his rights to due process, equal protection, and to be protected from excessive
fines. He relies principally upon People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). Numerous courts, including ours, have weighed in on the
merits of these arguments.2 We presume that the court considered
2 For example, the courts in People v. Hicks (2019) 40 Cal.App.5th 320,
326, review granted Nov. 26, 2019, S258946, and People v. Aviles (2019) 39
Cal.App.5th 1055, 1061 (Aviles) disagreed with Dueñas, whereas the court in
People v. Belloso (2019) 42 Cal.App.5th 647, 654–656, review granted Mar.
11, 2020, S259755, followed Dueñas. The Supreme Court has granted review
in the lead case of People v. Kopp (2019) 38 Cal.App.5th 47, 95–96, review
granted November 13, 2019, S257844 (Kopp).
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defendant’s ability to pay, and that in any event error was harmless beyond a
reasonable doubt.
A. Proceedings Below
The court imposed a restitution fine of $2,100 (§1202.4, subd. (b)),
$120 court operations assessment (§ 1465.8), $90 criminal conviction
assessment (Gov. Code, § 70373), $205 lab analysis fee (Health & Saf. Code,
§ 11372.5), $615 drug program fee (Health & Saf. Code, § 11372.7) and a $154
criminal justice administration fee (Gov. Code, § 29550). The court ordered
these fines and fees to be paid pursuant to section 2085.5, which provides for
payment of fines from an incarcerated defendant’s prison wages and trust
account.
After the court imposed the fines and fees, defense counsel asked the
court to consider staying the fines and fees pending an ability-to-pay hearing,
and to endorse fire camp. The court authorized fire camp if defendant were
eligible. The court did not order an ability-to-pay hearing. It stated it would
allow defendant to pay the fines and fees from his earnings in custody.
Thus, for purposes of our analysis, we conclude defendant did not waive
any right he might have to an ability-to-pay hearing. Essentially, however,
the sentencing court concluded he did not need to present evidence of ability
to pay. It permitted payment from earnings while in custody. It does not
appear defendant argued the fines and fees were so onerous as to violate the
proscriptions against cruel or unusual punishment.
B. Analysis
1. The Court Considered Ability to Pay
A court may consider the defendant's inability to pay when it imposes a
restitution fine greater than the $300 minimum. (§ 1202.4, subd. (c).) A
separate hearing on ability to pay is not required, and the court is not
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required to state its express findings on the factors bearing on the amount to
be paid. (Id. at subd. (d).)
Defendant testified to his work history and employment. The court was
thus aware of important aspects of defendant’s ability to pay the amounts
recommended by the presentence report. It substantially reduced the $8,100
restitution fine recommended in the report to $2,100. We presume the court
took its knowledge of defendant’s background into consideration in ordering
the fines, fees and assessments paid from earnings while incarcerated. It did
not require defendant to produce additional earnings documentation. In
effect the court concluded that any payment should come from what he
earned in custody. (See In re Marriage of Winternitz (2015) 235 Cal.App.4th
644, 653–654 [we presume “ ‘that the court knew and applied the correct
statutory and case law’ ”].)
Defendant contends that he will not be able to earn wages while in local
custody, or if he earns wages they will be minimal. Defendant forfeited this
argument by failing to raise it in the trial court when sufficiency of custody
wages were discussed. We will not consider factual arguments that were not
first presented in the trial court. (Pinter-Brown v. Regents of the University
of California (2020) 48 Cal.App.5th 55, 86 [appellate review limited to record
before lower court].)
2. Harmless Beyond a Reasonable Doubt
Even if the trial court was constitutionally required to further consider
defendant's ability to pay the fines, fees, and assessments before imposing
them, and failed to do so, any error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019)
36 Cal.App.5th 1028, 1035 (Jones) [applying Chapman standard of harmless
error analysis to Dueñas error].)
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The burden is on defendant to show his inability to pay. (§ 1202.4,
subd. (c).) He made no showing in the trial court that he was unable to work.
Defendant was sentenced to six years eight months of local prison. The
ability to pay fees and fines from custody wages has been held sufficient to
find any error harmless beyond a reasonable doubt. (People v. Lowery (2020)
43 Cal.App.5th 1046, 1060–1061; Jones, supra, 36 Cal.App.5th at p. 1035.)
As noted above, we do not consider defendant’s contention that he will not
earn enough in local custody to pay the fees and fines because defendant
failed to raise that argument below.
DISPOSITION
We strike the three one-year enhancements for defendant’s prior prison
convictions (see § 667.5). The trial court is directed to prepare a corrected
abstract of judgment reflecting this change, and to forward a certified copy of
the corrected abstract to the Department of Corrections and Rehabilitation.
In all other respects the judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
GUERRERO, J.
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