People v. Washington

Filed 3/9/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B296437
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. MA073277)
v.
ANTOINE LAMAR
WASHINGTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed in
part, vacated in part, and remanded with directions.
The Law Offices of Michelle T. LiVecchi-Raufi and
Michelle T. LiVecchi-Raufi, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Scott A. Taryle and Viet
H. Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________________
INTRODUCTION
Los Angeles County Sheriff’s deputies served a search
warrant on a home in Lancaster. When they approached the
home’s garage, a deputy saw appellant Antoine Lamar
Washington discard a firearm. Inside the garage, deputies
found a sophisticated drug-sale operation. Following trial, a
jury convicted appellant of possession of three controlled
substances while armed with a firearm, possession of the
three controlled substances for sale, possession of a firearm
as a felon, and possession of ammunition as a felon. The
trial court sentenced appellant to a total of five years and
eight months in state prison. The sentence included a
separate term -- whether consecutive or concurrent -- for
each of appellant’s offenses, except his possession of
ammunition, for which the sentence was stayed under Penal
Code section 654 (Section 654). Appellant was further
ordered to pay a restitution fine and certain assessments.
Appellant now challenges his conviction and sentence.
He asserts: (1) the evidence was insufficient to prove he had
knowledge of the narcotics found in the garage; (2) the trial
2
court abused its discretion in admitting evidence of his prior
conviction for possession for sale of a controlled substance;
(3) the court improperly punished him multiple times for
each of his criminal acts (the possession of each controlled
substance and the possession of a firearm), in contravention
of Section 654; and (4) the trial court violated his
constitutional rights by imposing the fines and assessments
without first determining his ability to pay. Appellant
further asks that we independently review sealed portions of
the search warrant affidavit to determine if the trial court
erred in denying his motions to unseal the sealed portions,
and to traverse and quash the warrant.
We agree with appellant that his sentence violates
Section 654’s proscription against multiple punishments for
a single act. Under People v. Jones (2012) 54 Cal. 4th 350
(Jones) and its progeny, appellant’s single possession of each
item of contraband (methamphetamine, cocaine, cocaine
base, and the firearm) constituted a single act, subject to
only one punishment. Appellant’s unstayed sentences for
possessing controlled substances while armed, therefore,
imposed additional punishment for the same acts punished
by his sentences for possession of the substances for sale and
the possession of a firearm by a felon. Accordingly,
appellant’s sentence was unauthorized. We therefore vacate
the sentence and remand for resentencing. Finding no other
error, we otherwise affirm.
3
BACKGROUND
A. The Information
In May 2018, the Los Angeles County District Attorney
charged appellant with: unlawful possession of three
controlled substances (methamphetamine, cocaine, and
cocaine base) while armed with three firearms (a Springfield
semi-automatic handgun, a Smith & Wesson semi-automatic
handgun, and a Ruger revolver) (Health & Saf. Code,
§ 11370.1, subd. (a); Counts 1, 2, 4, 5, 6, 8, 9, 10, & 12);1
possession for sale of the same three substances (Health &
Saf. Code, §§ 11351, 11351.5, & 11378; Counts 17, 18, & 20);
possession of the same three firearms by a felon (Pen. Code,
§ 29800, subd. (a)(1); Counts 31, 32, & 33); and possession of
ammunition by a felon (Pen. Code, § 30305, subd. (a)(1);
Count 36).2 The information alleged that appellant
committed each of these offenses “[o]n or about February 16,
2018.” Appellant pleaded not guilty, and the case proceeded
to trial in January 2019.
B. The Prosecution’s Evidence at Trial
On February 16, 2018, at about 1:30 a.m., Los Angeles
County Sheriff’s deputies served a search warrant on a
house on Corkwood Avenue in Lancaster. Detective
1 Each of these nine counts described one of the three
substances and one of the three firearms.
2 Other counts included in the information are not pertinent
to this appeal.
4
Jonathan Delling led two teams of deputies to execute the
search. Before executing the search, the deputies received
information that a man named Sam might be a drug seller at
the location. As the deputies approached the residence,
Detective Delling saw a man sweeping in the street. When
the man saw the deputies, he walked toward the residence
and started shouting. Recognizing that the man was serving
as a lookout, Detective Delling instructed the teams to
approach the residence quickly.3
As deputies approached the garage attached to the
house, Detective Delling saw that the garage door was
partially open. Although the garage was very dimly lit,
Detective Delling used a light mounted on his firearm to
illuminate it and was able to see multiple people inside. Two
people were sitting on a couch at the back of the garage, and
one person, later identified as appellant, was standing
between a dresser and the couch. Detective Delling then
saw appellant move across the garage, pull a small revolver
out of the back pocket of his pants, and discard it.
All the occupants of the garage and home were then
ordered out. Seven people were found in the house. One
man, Samuel Farrell, was found in possession of cocaine
base. One woman, Taraya Young, resided at the house, and
her parents were also present when the deputies arrived.
3 In the meantime, the lookout ran away. An unidentified
woman exited the house as the deputies approached, but was not
pursued, as she posed no threat.
5
Young’s sister and two other women were found in the
garage.
A search of appellant found $451 in his pocket, in
various denominations in no discernible order.4 Deputies
also recovered a loaded Ruger revolver from the area where
appellant was standing when Detective Delling saw him
discard a revolver. At trial, Detective Delling was “[a]
hundred percent” certain the recovered Ruger was the gun
he had seen appellant discard.
Inside the garage, deputies found a sophisticated
drug-sale operation. At trial, the court admitted the
following not-to-scale diagram of the garage:
The dresser faced inward and was placed next to a
headboard, creating a partially enclosed space. Detective
4 Appellant possessed twenty-six $1 bills, five $5 bills, four
$10 bills, thirteen $20 bills, and one $100 bill.
6
Delling described this area at trial as similar to “the
checkout counter at a convenience store.” When Detective
Delling first saw appellant in the garage, appellant was
standing behind the far-right corner of the dresser, marked
on the diagram with an “X” near the dresser’s top-right
corner.
On top of the dresser were over $400 in cash, a
container of marijuana, unused baggies, digital scales, and a
container marked “TIPS,” containing $36. Inside the
dresser’s drawers, deputies found more money, two loaded
firearms (Smith & Wesson and Springfield handguns), and
large amounts of methamphetamine and cocaine base.5 Also
found in the drawers was a notebook with pay-and-owe
sheets. Testifying as an expert on drug-sale practices,
Detective Delling explained a pay-and-owe sheet is how drug
dealers keep track of payments for drug transactions. On
the table within the counter area, deputies found two-way
radios, radio scanners, and a video surveillance monitoring
system that allowed those in the counter area to view anyone
approaching the premises.
Along the east wall of the garage, among some “clutter”
by the refrigerator and the headboard, deputies found more
money and a baggie containing over 30 grams of cocaine. On
top of a microwave (marked “M” in the diagram), deputies
found a baggie containing over 22 grams of cocaine base,
placed behind a lampshade and an unidentified object. At
5 All of the drawers were either closed or slightly open.
7
trial, the parties stipulated that appellant was convicted of
possession of cocaine base for sale in 2004.6
Based on a hypothetical mirroring of the facts of the
case, Detective Delling opined at trial that the contraband
found in the garage was possessed for sale. Detective
Delling further opined that appellant possessed the drugs in
the garage, based in part on appellant’s possession of the
revolver and the money. He explained that drug dealers in
similar settings generally do not allow drug buyers to be
armed. According to Detective Delling, it would not be
“reasonable” for someone uninvolved in the operation to be
armed and standing behind the “counter” containing the
drugs and money, where he had seen appellant standing. He
additionally opined that possessing $451 in various
denominations in no discernible order indicated drug sales,
suggesting that the person was collecting the money over
time, as he was making sales.
At the conclusion of the People’s case, appellant’s
counsel moved for a judgment of acquittal, arguing there was
insufficient evidence to establish that appellant possessed or
knew about the drugs or guns in the garage. The trial court
denied the motion. The defense presented no testimony.
6 The trial court instructed the jury that it was to consider
appellant’s prior conviction only in deciding whether he knew one
of the substances in the garage was cocaine base, whether he had
the intent to sell a controlled substance, and whether his actions
were the result of mistake or accident.
8
C. Closing Arguments
In their closing argument, the People argued primarily
that the circumstances surrounding appellant’s presence at
the garage showed he was involved in the drug-sale
operation. They emphasized the obvious nature of the
operation, including the drugs and paraphernalia found
throughout the garage. They also highlighted appellant’s
initial location behind the counter, the money in his pocket,
his being armed, and Detective Delling’s testimony that
these circumstances indicated appellant was involved in the
operation. Regarding the charges of possession of firearms
by a felon, the People stated, “[I]f you believe the deputy that
he saw a gun coming out of [appellant’s] pocket, [he’s] guilty
[of] felon with a firearm . . . [. E]ven if you don’t believe the
deputy . . . but you still believe that [appellant] knew about
the guns, then he’s still guilty of felon with a firearm.”
Appellant’s counsel argued the evidence failed to show
that appellant knew about any of the hard drugs or guns in
the garage. She noted most of the drugs and guns were in
the dresser drawers, and contended the drugs outside the
drawers were not within appellant’s sight, especially given
the poor lighting conditions before the deputies arrived.
Counsel claimed that because of the poor lighting in the
garage, Detective Delling’s observations through the
partially open garage door were unreliable. She emphasized
there was no evidence appellant had ever been at the
location before and no evidence disclosing when he had
9
arrived there. She suggested appellant might have been at
the location “to see a girl.”
D. The Jury’s Verdict
Following trial, the jury found appellant guilty as
charged of: unlawful possession of methamphetamine,
cocaine, and cocaine base while armed with the Ruger
revolver (Counts 9, 10, & 12), possession of the same
substances for sale (Counts 17, 18, & 20), possession of the
Ruger revolver by a felon (Count 31), and possession of
ammunition by a felon (Count 36). The jury found appellant
not guilty of all charges relating to his alleged possession of
the Springfield and Smith & Wesson handguns found in the
dresser drawers (Counts 1, 2, 4-6, 8, 32, & 33).
E. The Trial Court’s Sentence
The trial court sentenced appellant to a total of five
years and eight months in state prison, consisting of the
upper term of four years on Count 9 (unlawful possession of
methamphetamine while armed), a one-year consecutive
term on Count 17 (possession of cocaine base for sale), and
an eight-month consecutive term on Count 31 (possession of
a firearm by a felon). The court imposed concurrent terms
on Counts 10, 12, 18, and 20, and stayed the sentence for
Count 36 under Section 654. It further ordered appellant to
pay a $1,500 restitution fine and $560 in statutory
assessments.
10
In imposing a consecutive term on Count 31, the court
found that appellant had been carrying the firearm
independent of the drug sales. Noting that appellant had
carried the Ruger revolver on his person while two other
firearms were in the dresser drawers, the court inferred
appellant had arrived at the location with the revolver.
Appellant timely appealed.
DISCUSSION
A. The Admission of Appellant’s Prior Conviction
1. Background
Before trial, the People notified the court of their intent
to introduce evidence of appellant’s 2004 conviction for
possession of cocaine base for sale to prove appellant’s
“intent” and “lack of mistake.” Appellant objected that
admitting the conviction would be unduly prejudicial. After
hearing argument, the trial court found the prior conviction
was relevant to appellant’s “knowledge, intent, and lack of
mistake,” and that its probative value outweighed its
prejudicial effect. However, the court ruled that only the
fact of appellant’s conviction would be admitted. At trial,
appellant’s counsel stipulated to appellant’s prior conviction.
The court instructed the jury it could consider
appellant’s 2004 conviction only in deciding whether he
knew one of the substances in the garage was cocaine base,
whether he had the intent to sell a controlled substance, and
whether his actions were the result of mistake or accident.
It emphasized the jury was not to consider this evidence for
11
any other purpose and was not to infer from it that appellant
had a bad character or criminal disposition. Finally, the
court advised the jury that regardless of appellant’s 2004
conviction, the People were required to prove each element of
the charged offenses beyond a reasonable doubt.
In closing argument, the People occasionally referenced
appellant’s prior conviction as showing that he “would know
what drugs are” and that the substances in the garage were
controlled substances. The People also briefly suggested
that given the garage was essentially a drug “store,”
appellant’s prior conviction meant he would have known the
drugs were in the dresser drawers. In appellant’s closing
argument, his counsel stated that his prior conviction was
about 15 years earlier and that the jury could not convict
based on “the fact that we’ve admitted that he has a past,
and that it is in the same kind of category of crimes.” She
explained that the jury could consider appellant’s prior
conviction “to see if you think that it shows that he knows
what was going on more than maybe you or I would,” but
emphasized that the conviction “doesn’t mean that he’s just
automatically guilty of all the charges.”
2. Analysis
Appellant contends the trial court prejudicially erred
by admitting evidence of his prior conviction for possession
for sale of cocaine base. He argues this evidence should have
been excluded under either Evidence Code section 1101 or
Evidence Code section 352. Appellant further contends the
12
erroneous admission of the evidence violated his federal
constitutional right to due process.
We review state law challenges to a trial court’s
evidentiary rulings for abuse of discretion. (People v.
Goldsmith (2014) 59 Cal. 4th 258, 266.) “Specifically, we will
not disturb the trial court’s ruling ‘except on a showing the
trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest
miscarriage of justice.’” (Ibid.) A miscarriage of justice
results only if “it is reasonably probable that a result more
favorable to the appealing party would have been reached in
the absence of the error.” (People v. Watson (1956) 46 Cal. 2d
818, 836 (Watson).)
Evidence Code section 1101, subdivision (a), “prohibits
admission of evidence of a person’s character, including
evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person
on a specified occasion. Subdivision (b) of section 1101
clarifies, however, that this rule does not prohibit admission
of evidence of uncharged misconduct when such evidence is
relevant to establish some fact other than the person’s
character or disposition.” (People v. Ewoldt (1994) 7 Cal. 4th
380, 393 (Ewoldt).) Among other matters, evidence of prior
bad acts may be used to establish motive, intent, knowledge,
identity, lack of mistake or accident, and the existence of a
common design or plan. (Evid. Code, § 1101, subd. (b).) To
be admissible, the evidence of the prior misconduct must be
13
probative of a material fact. (People v. Ghebretensae (2013)
222 Cal. App. 4th 741, 754 (Ghebretensae).)
We conclude the trial court did not abuse its discretion
in admitting evidence of appellant’s prior conviction for
possession for sale of cocaine base. At the very least, the
evidence was relevant to show that if appellant was aware of
the substances in the garage, he knew that one of them was
cocaine base. “To obtain a conviction for possession of a
controlled substance for sale, the prosecution must prove
that the defendant had knowledge of both the presence of the
contraband and its illegal character.” (Ghebretensae, supra,
222 Cal.App.4th at 754 citing People v. Meza (1995) 38
Cal. App. 4th 1741, 1745-1746.) “[I]n narcotics prosecutions,
evidence of prior drug convictions is relevant to prove
knowledge of the narcotic nature of the substance.
[Citation.] On this theory, the only necessary similarity is
that the controlled substance be the same.” (People v.
Hendrix (2013) 214 Cal. App. 4th 216, 241.) Accordingly,
appellant’s prior conviction for possession for sale of cocaine
base was relevant to prove his ability to recognize cocaine
base in the garage.
Appellant contends the prior conviction was
nevertheless inadmissible to prove his knowledge of the
narcotic nature of the substances in the garage because: (1)
his sole defense at trial was that he had no knowledge of the
presence of the substances, making proof of his familiarity
with cocaine base immaterial; and (2) his prior conviction
was too remote to be probative. We disagree.
14
Regardless of appellant’s defense theory at trial, by
pleading not guilty, he placed all elements of the crimes with
which he was charged in dispute. (People v. Lindberg (2008)
45 Cal. 4th 1, 23.) Appellant did not stipulate that he was
intimately familiar with cocaine base. Thus, his knowledge
of the substance was a material fact. That appellant’s prior
conviction was somewhat remote did not degrade its
probative nature: a factfinder could reasonably infer that a
person who possessed a substance for sale would be able to
recognize the same substance over a dozen years later. The
evidence of appellant’s prior conviction was therefore not
inadmissible under Evidence Code section 1101.
Nor did Evidence Code section 352 compel exclusion of
the evidence. Under that provision, trial courts have
discretion to exclude relevant evidence if its probative value
is substantially outweighed by the probability that its
admission will, among other things, create substantial
danger of undue prejudice. (Evid. Code, § 352.) “Prejudice
for purposes of Evidence Code section 352 means evidence
that tends to evoke an emotional bias against the defendant
with very little effect on issues, not evidence that is
probative of a defendant’s guilt.” (People v. Crew (2003) 31
Cal. 4th 822, 842.)
The evidence of appellant’s prior conviction was not
particularly inflammatory. The jury heard nothing about
the circumstances of the prior offense, and the mere fact of a
decade-and-a-half-old conviction for possession of drugs for
sale is hardly incendiary when compared to appellant’s
15
charged offenses, predicated on a sophisticated drug-sale
operation involving multiple drugs alongside loaded
firearms. (See Ewoldt, supra, 7 Cal.4th at 405 [prior bad
act’s prejudicial effect is “decreased” if it is “no more
inflammatory than the testimony concerning the charged
offenses”].) Additionally, because appellant’s prior offense
resulted in a conviction, there was no risk that the jury
would be inclined to convict him of his current charges to
punish him for his prior offense.7 (See People v. Tran (2011)
51 Cal. 4th 1040, 1050 [no undue prejudice, in part because
defendant stood convicted of prior offense, leaving “no risk
the jury might convict defendant to prevent him from
escaping punishment for the [prior offense]”].)
Moreover, even had we found admission of appellant’s
prior conviction erroneous, we would deem any error
harmless. As noted, the mere existence of appellant’s 15-
year-old conviction for possession of drugs for sale was
unlikely to inflame the jury against him. Indeed, that the
jury acquitted appellant of all charges involving the firearms
in the dresser drawers suggested that far from being
inflamed by evidence of his prior conviction, the jury
carefully considered the evidence and charges as to each
7 Appellant asserts in conclusory fashion that the trial
court’s admission of his prior conviction violated his federal
constitutional right to due process because the conviction’s
probative value was outweighed by its prejudicial effect. Given
our conclusion that the evidence was not unduly prejudicial, its
admission did not violate appellant’s right to due process.
16
count. (See People v. Chatman (2006) 38 Cal. 4th 344, 370
[jury’s partial acquittal of defendant showed it had
“‘considered the evidence dispassionately in reaching its
verdict’”].) The People made only a few brief references to
the prior conviction in closing argument, primarily to
suggest that if appellant knew about the substances in the
garage, he also knew they were controlled substances (a
matter appellant does not dispute on appeal). While the
prosecutor made a passing reference to appellant’s prior
conviction as showing he would know the drugs would be in
the dresser drawers given the location’s store-like setup, the
bulk of the People’s argument focused on the circumstances
surrounding appellant’s presence at the garage: the obvious
drug-sale operation, the drugs and paraphernalia outside the
dresser drawers, appellant’s location in the garage, the cash
he possessed, and his being armed where mere buyers would
not be allowed to be armed. Appellant’s prior conviction was
thus a very small part of the People’s case and was unlikely
to have swayed the jury. (See People v. Coffman and
Marlow (2004) 34 Cal. 4th 1, 119 [any error was harmless
where challenged evidence had “relatively minor significance
in the prosecution’s case”].)
Furthermore, the trial court instructed the jury on the
limited purpose of the evidence, advising jurors that they
were not to infer appellant had a criminal disposition and
emphasizing that the People were required to prove each
element of the charged offenses beyond a reasonable doubt,
17
regardless of appellant’s prior offense.8 (People v. Romero
and Self (2015) 62 Cal. 4th 1, 28 [jury presumed to
understand and follow court’s limiting instruction].) In
appellant’s closing argument, his counsel emphasized the
limited significance of appellant’s prior conviction, noting its
age and reminding jurors they could not rely on it to convict
appellant simply because his prior conviction was “in the
same . . . category of crimes” as the charged offenses.
Pointing to his acquittal of the charges relating to the
firearms in the dresser drawers, appellant contends the only
difference between the evidence supporting those charges
and that supporting the drug possession charges was his
prior conviction for possession of drugs for sale. He argues
this shows the jury relied on his prior conviction to conclude
he knew about the drugs in the garage. Appellant overlooks
another, more significant difference between the drugs and
the firearms. As we detail below in discussing appellant’s
sufficiency challenge, circumstantial evidence suggested
appellant was involved in the drug-sale operation. It was
eminently reasonable to infer that as a seller, appellant was
aware of the drugs in the garage. But the jury also heard
evidence suggesting many other possible sellers at the
8 Appellant does not challenge the trial court’s limiting
instruction as overbroad. Regardless, even assuming the court’s
instruction insufficiently narrowed the matters for which the jury
could consider appellant’s prior conviction, any such error would
have been harmless for the other reasons establishing that the
admission of appellant’s prior conviction was harmless.
18
garage and the adjoining house. A few of these other
persons either resided at the house or were related to a
person who did. One of the potential sellers, Samuel Farrell,
was found with drugs in the house, consistent with
information Detective Delling had received before the search
that a potential seller named Sam was at the location. Thus,
the jury could have concluded that appellant was only a
subordinate in the drug-sale operation, aware of the
merchandise but not necessarily aware of guns in the
drawers. In short, we are satisfied it is not reasonably
probable appellant would have obtained a more favorable
outcome absent the admission of his prior conviction. (See
Watson, supra, 46 Cal.2d at 836.)
B. The Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to
support his drug-related convictions and that the trial court
erred in denying his motion for a judgment of acquittal.
“The proper test for determining a claim of insufficiency of
evidence in a criminal case is whether, on the entire record,
a rational trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citations.] On appeal, we must view
the evidence in the light most favorable to the People and
must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the
evidence.” (People v. Ochoa (1993) 6 Cal. 4th 1199, 1206.)
“The same standard applies when the conviction rests
primarily on circumstantial evidence. [Citation.] Although
19
it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable
doubt.” (People v. Kraft (2000) 23 Cal. 4th 978, 1053-1054
(Kraft).) A trial court applies the same standard in ruling on
a motion for judgment of acquittal, and we review the trial
court ruling de novo, applying the same substantial evidence
standard. (People v. Dalton (2019) 7 Cal. 5th 166, 249.)
As noted, to prove the possession of drugs for sale, the
prosecution was required to show, among other things, that
appellant knew of both the presence of the substances and
their narcotic character. (Ghebretensae, supra, 222
Cal.App.4th at 754; Meza, supra, 38 Cal.App.4th at
1745-1746.) Appellant argues there was insufficient
evidence of his knowledge that the narcotics were present in
the garage. He notes that most of the drugs in the garage
were in the dresser drawers, that lines of view to the drugs
not in drawers were somewhat obstructed (the cocaine base
on the microwave was behind a lampshade and another
item, and the cocaine near the refrigerator was among
“clutter”), and that the garage was dimly lit when the
deputies arrived.
Initially, given that appellant was able to move around
the garage, as Detective Delling witnessed, the jury could
reasonably infer he was able to see the cocaine and cocaine
base outside the dresser drawers, despite the poor lighting
20
and partially obstructed views. More important, however,
the People presented significant circumstantial evidence
that the garage was set up as a narcotics store, and that
appellant was one of the sellers, thus necessarily aware of
the drugs. It is undisputed that the deputies arrested
appellant in the midst of an obvious drug-sale operation. An
inward-facing dresser in the garage contained firearms and
most of the hard drugs, and was placed next to a headboard
so as to form a makeshift checkout counter. On top of the
dresser were marijuana, unused baggies, digital scales, and
even a tip jar that contained money. On a table within the
counter area were two-way radios and scanners and a video
surveillance monitoring system that allowed those in the
counter area to view anyone approaching the premises. As
deputies approached the location, a lookout alerted the
occupants of the house and garage to their presence.
The evidence relating to appellant suggested he was
not merely an intended customer or a visitor who happened
to be at the garage. Detective Delling first saw appellant
standing behind the dresser. On appeal, it is undisputed
that appellant was armed and had $451 in his pocket. The
money was in various denominations, including many small
bills, in no discernible order. Testifying as an expert on
drug-sale practices, Detective Delling explained that drug
dealers in similar settings generally do not permit customers
to be armed, and opined it would be unlikely for someone not
involved in the operation to be armed and standing behind
the makeshift counter, where the drugs and much of the
21
money were located. Detective Delling further opined that
possessing $451 in various denominations in no discernible
order was indicative of drug sales, as it appeared the money
was collected over time, as the person was making sales.
This evidence permitted the jury to conclude that appellant
was involved in the drug-sale operation. (Cf. Meza, supra,
38 Cal.App.4th at 1746 [it was unlikely persons involved in
drug trafficking operation would allow uninvolved person to
ride in a vehicle delivering cocaine worth $3 million]; People
v. Walker (2015) 237 Cal. App. 4th 111, 117 [possession of
large amount of money in varied but mostly small
denominations was consistent with intent to sell].)
Appellant contends neither the money nor the gun was
sufficient to support that he was involved in the drug-sale
operation. As to the gun, he argues it did not rule out the
possibilities that (1) unlike other drug-sale operations, this
operation permitted visitors to bring guns, or (2) his gun was
concealed, and the sellers were not aware of its presence.
But the jury was entitled to reject these proposed
interpretations of the evidence (Kraft, supra, 23 Cal.4th at
1053-1054); indeed, the jury could reasonably have
concluded that no uninvolved person, armed or otherwise,
would be allowed behind the counter at a sophisticated
drug-sale operation.
Appellant cites People v. Antista (1954) 129 Cal. App. 2d
47 (Antista) and People v. Glass (1975) 44 Cal. App. 3d 772
(Glass) in support of his position. Each is distinguishable.
22
In Glass, the court reversed a conviction for possession
of drugs for sale, where officers found the drugs under a
couch in the living room of the house in which the defendant
was found. (Glass, supra, 44 Cal.App.3d at 774-775.) The
defendant, who neither owned nor resided at the house, was
found lying in bed in the bedroom. (Id. at 775, 776.) The
court stated this evidence established “no more than an
opportunity of access to a place where narcotics were found
. . . .” (Id. at 777.) While the defendant had $270 in small
bills in his wallet, the court determined the money lacked
probative value absent a showing the defendant had been
unemployed. (Id. at 775, 777.)
In Antista, the court reversed a conviction for simple
possession where officers found marijuana in both the living
room and an unused bedroom of the defendant’s apartment.
(Antista, supra, 129 Cal.App.2d at 48.) The defendant was
not home at the time the drugs were found, but a friend who
was a known drug user had been staying in the apartment
for 10 days before the search and was in the home at the
time police arrived. (Id. at 48-49.) The defendant had no
known history of drug use, was a nonsmoker, and could not
breathe deeply due to a medical condition. (Id. at 48.) The
court stated, “if it is established that one accused of
possession returned to his apartment . . . and found it
occupied by a user of narcotics, and a narcotic was found in
it, and if there is no evidence that it was there before that
time, the fact of its presence, without any other fact or
23
circumstance of an incriminating nature, is legally
insufficient to prove a charge of possession.” (Id. at 53.)
In both Glass and Antista, the result reflected the
straightforward proposition that the prosecution must show
something more than the mere presence of controlled
substances in the place where the defendant is found or to
which he has access. The People have indeed shown more
here. The evidence established that appellant was at the
location of an active drug-sale operation, in an area where
only a seller would typically be found, carrying an item -- the
gun -- that only a seller would typically carry at the location,
and possessing cash in an amount and composition typically
indicative of drug sales.9 Nothing more was required to
support the jury’s conclusion that appellant was involved in
the sale of the drugs.
Appellant does not dispute that if he was one of the
sellers, he must have known of the drugs present in the
9 We are unpersuaded by appellant’s emphasis of Glass’s
conclusion that the defendant’s possession of money there had no
probative value. The evidence in Glass showed only that the
defendant had a large sum of money in his wallet while lying in
bed in someone else’s house, where drugs were found but no drug
sales were taking place at the time. (Glass, supra, 44 Cal.App.3d
at 775-776.) In other words, the money had no apparent link to
drug sales. By contrast, appellant carried the cash in his pocket,
at a place where drug sales were clearly taking place, and the
money contained various denominations in no apparent order,
suggesting, as Detective Delling opined, that appellant was
pocketing money as he was making sales.
24
garage. Accordingly, we find the evidence sufficient to
support the jury’s verdict.
C. The Sealed Portion of the Search Warrant
Affidavit
1. Background
A portion of the affidavit accompanying the search
warrant in this case was filed under seal. Before trial,
appellant moved to unseal, quash, and traverse the search
warrant and to suppress all evidence found during the
search of the garage. After conducting an in camera review
under the procedures of People v. Hobbs (1994) 7 Cal. 4th 948
(Hobbs), the court denied appellant’s requests. The Court
found the relevant information had been properly sealed,
and that continued sealing was necessary to protect the
identity of confidential informant(s). It further found the
public and sealed materials did not support the request to
quash and traverse the warrant.
2. Analysis
Appellant asks us to review the sealed portion of the
search warrant affidavit and determine whether the trial
court erred in denying his motions to unseal that portion and
to quash and traverse the search warrant. The Attorney
General does not oppose his request for review.
Any part of a search warrant affidavit may be sealed if
necessary to protect the identity of a confidential informant.
(Evid. Code, § 1041; Hobbs, supra, 7 Cal.4th at 971.) When
25
that happens, and the defendant moves to traverse or quash
the warrant, the trial court must conduct an in camera
hearing following a two-step procedure established in Hobbs.
The first step is for the court to determine whether, and to
what extent, the sealed portion should remain sealed to
protect the identity of the informant. (Hobbs, supra, at 972.)
“If there is no longer any reason to protect the identity of the
informant . . . the court should then order the prosecutor to
release the sealed portion [or suffer an adverse ruling].”
(Caskey, Cal. Search & Seizure (2020) § 3:35.) We review
the trial court ruling on a motion to unseal a search warrant
affidavit for an abuse of discretion. (See Hobbs, at 976.)
If the court determines any portion of the affidavit
should remain sealed, it then proceeds to the second step,
which “requires the court to determine whether ‘there is a
reasonable probability the defendant would prevail’ on his
suppression motion.” (People v. Heslington (2011) 195
Cal. App. 4th 947, 957.) If the defendant moved to traverse
the warrant, the court must determine whether the
defendant’s general allegations of material
misrepresentations or omissions are supported by the public
and sealed portions of the affidavit. (Hobbs, supra, 7 Cal.4th
at 974.) For the defendant to succeed on this claim, it must
be shown that “(1) the affidavit included a false statement
made ‘knowingly and intentionally, or with reckless
disregard for the truth,’ and (2) ‘the allegedly false statement
is necessary to the finding of probable cause.’” (Ibid.)
26
If the defendant moved to quash the warrant, the court
must evaluate the affidavit’s showing of probable cause
under a similar procedure. (Hobbs, supra, 7 Cal.4th at 975.)
The court must assess “whether, under the ‘totality of the
circumstances’ presented in the search warrant affidavit . . .
there was ‘a fair probability’ that contraband or evidence of a
crime would be found in the place searched pursuant to the
warrant.” (Ibid.) “‘[T]he warrant can be upset only if the
affidavit fails as a matter of law . . . to set forth sufficient
competent evidence supportive of the magistrate’s finding of
probable cause . . . .’” (Ibid.)
Having reviewed the sealed portion of the search
warrant affidavit, we find no error in the trial court’s denial
of appellant’s motions. The trial court did not abuse its
discretion in determining that valid grounds supported
maintaining the confidentiality of information in the sealed
portion, and that the extent of the sealing was necessary for
that purpose. Moreover, it is not reasonably probable that
appellant would have prevailed on his motion to traverse or
quash the warrant. Nothing in the affidavit leads us to
suspect any material misrepresentations or omissions were
made. And under the totality of the circumstances, there
was a fair probability that execution of the warrant would
lead to contraband or evidence of a crime at the location to
be searched.
27
D. The Separate Sentences for Appellant’s Drug-
and Firearm-Related Convictions
Appellant contends that his separate sentences for
possession of methamphetamine, cocaine, and cocaine base
for sale, possession of each of those substances while armed,
and possession of a firearm by a felon, are precluded by
Section 654.
1. Governing Principles
Section 654, subdivision (a), provides: “‘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.” The starting point of a Section 654
analysis is to determine whether the “different crimes were
completed by a ‘single physical act.’” (People v. Corpening
(2016) 2 Cal. 5th 307, 311 (Corpening), citing Jones, supra, 54
Cal.4th at 358.) “If so, the defendant may not be punished
more than once for that act,” regardless of the defendant’s
intent and objective. (Id. at 359.) “Only if we conclude that
the case involves more than a single act—i.e., a course of
conduct—do we then consider whether that course of conduct
reflects a single ‘“intent and objective”’ or multiple intents
and objectives.” (Ibid., citing Jones, at 359.) “Whether a
defendant will be found to have committed a single physical
act for purposes of [S]ection 654 depends on whether some
action the defendant is charged with having taken
28
separately completes the actus reus for each of the relevant
criminal offenses.” (Id. at 313.) When the facts are
undisputed, the application of Section 654 raises a question
of law we review de novo. (Corpening, at 312.) We review
any factual findings underlying the trial court’s ruling for
substantial evidence. (People v. Saffle (1992) 4 Cal. App. 4th
434, 438.)
In Jones, supra, 54 Cal.4th at 359-360, our Supreme
Court clarified that the inquiry into whether a defendant’s
conduct reflects a single intent or objective is relevant only
after it has been determined that a single act did not
complete each of the relevant crimes. The defendant there
had been sentenced concurrently for three crimes:
“possession of a firearm by a felon,” “carrying a readily
accessible concealed and unregistered firearm,” and
“carrying an unregistered loaded firearm in public.” (Id. at
352.) All three offenses were committed on a single occasion,
when the defendant, a convicted felon, carried in his car a
loaded revolver that was not registered to him. (Ibid.)
Reversing the imposition of separate punishments, our
Supreme Court held that “a single possession or carrying of
a single firearm on a single occasion may be punished only
once under [S]ection 654.”10 (Id. at 357.)
10 The Jones court clarified that it did not intend to upset the
established rule that “‘simultaneous possession of different items
of contraband’” constitutes separate acts that may receive
multiple punishments under Section 654. (Jones, supra, 54
Cal.4th at 358 [“We do not intend to cast doubt” on cases holding
(Fn. is continued on the next page.)
29
In separate opinions, Justices Werdegar and Liu
agreed the defendant could not receive multiple
punishments but relied on their conclusion that the
defendant had only a single objective in committing all three
offenses. (Jones, supra, 54 Cal.4th at 361 (conc. opn. of
Werdegar, J.); id. at 375 (conc. opn. of Liu, J.).) The majority
declined to adopt the concurring justices’ approach,
responding, “Rather than force the court to divine what
objective or objectives the defendant might have had in
possessing the firearm, we find it better to rely on [S]ection
654’s actual language in resolving this single-act case.” (Id.
at 360.)
Our Supreme Court in Jones considered the Attorney
General’s alternative argument that the defendant had
committed his offenses through separate acts. The Attorney
General noted the defendant had told the police he had
obtained the gun three days before it was found in his car,
and had kept it at his grandmother’s house. (Jones, supra,
54 Cal.4th at 359.) Rejecting this argument, the court noted
that the information had alleged defendant committed all
three crimes on or about the day he was arrested, that the
verdicts had found defendant guilty as charged, and that the
prosecutor’s closing argument based defendant’s guilt on his
possessing the gun when arrested. (Ibid.) Thus, the court
concluded the record established “that the jury convicted
that possession of each separate item is separate act of
possession].)
30
defendant of each crime due to his being caught with the gun
in the car on [the day of his arrest], not due to any
antecedent possession.” (Ibid.; accord, People v. McCoy
(2012) 208 Cal. App. 4th 1333, 1339 [“where there is a basis
for identifying the specific factual basis for a verdict, a trial
court cannot find otherwise in applying [S]ection 654”].) As
discussed below, Jones controls the outcome in this case and
instructs that under Section 654, appellant may not receive
multiple punishments for his possession of each controlled
substance (both for sale and while armed) and may not
receive multiple punishments for his possession of a firearm
(while possessing each of the controlled substances and as a
felon).
2. Analysis
a. Possession of the Drugs
Appellant’s possession of each controlled substance
constituted a single physical act that completed two offenses:
(1) possession of the relevant substance for sale, and (2)
possession of the relevant substance while armed. (See
Corpening, supra, 2 Cal.5th at 311; Jones, supra, 54 Cal.4th
at 357-358.) Accordingly, appellant may not receive more
than one punishment for the possession of each substance.
(See Corpening, supra, at 311; Jones, supra, at 357; cf.
People v. Buchanan (2016) 248 Cal. App. 4th 603, 613
(Buchanan) [“When police officers discover a defendant in an
automobile in possession of a controlled substance, [S]ection
654 applies to preclude separate punishments for the same
31
act of transporting for sale the controlled substance and
possessing it for sale”].)
In his initial appellate brief, the Attorney General
contended appellant could receive two punishments for the
possession of each controlled substance (for sale and while
armed) because he “harbored an independent criminal
objective when he possessed the revolver.” After we sent the
parties a letter directing their attention to Jones and its
progeny, the Attorney General filed a supplemental brief,
conceding that appellant may receive only one punishment
for the possession of each controlled substance (whether for
sale or while armed). We accept the Attorney General’s
concession. Our Supreme Court in Jones refused to “divine
what objective or objectives the defendant might have had in
possessing [an item]” in a “single-act case.” (Jones, supra, 54
Cal.4th at 360.) Thus, under Jones, where a single physical
act completes two crimes, the defendant may not be
punished more than once for that act, regardless of his
objective. (Id. at 359; Corpening, supra, 2 Cal.5th at 311
[“Only if we conclude that the case involves more than a
single act . . . do we then consider whether that course of
conduct reflects a single ‘intent and objective’ or multiple
intents and objectives”].) Appellant may not be punished
more than once for the possession of each controlled
substance.
32
b. Possession of the Firearm
The jury found that appellant possessed a single
firearm (the revolver) when deputies found him in the
garage. This single physical act completed multiple crimes:
possession of each controlled substance while armed (a total
of three counts), and possession of a firearm by a felon.
Under Jones, appellant may receive only one punishment for
the possession of the firearm.11 (See Corpening, supra, 2
Cal.5th at 311; Jones, supra, 54 Cal.4th at 357; cf.
Buchanan, supra, 248 Cal.App.4th at 613-617 [where
defendant possessed one firearm on single occasion,
Section 654 precluded separate punishments for possession
of firearm by felon and four enhancements for being armed
in commission of narcotics offense; defendant could be
punished for only one enhancement, and could not be
punished for possession of firearm by felon (which carried
shorter sentence than enhancements)].)
The Attorney General raises two arguments in support
of the contention that Section 654 does not preclude multiple
punishments for appellant’s firearm-related offenses. First,
11 For the first time at oral argument, appellant argued that
section 654 precludes any punishment for his possession of the
firearm, asserting the separate acts of possession of a firearm and
possession of drugs were pursued with the single objective of
selling drugs. His failure to raise this contention in his briefs
constitutes forfeiture on appeal. (See Haight Ashbury Free
Clinics, Inc. v. Happening House Ventures (2010) 184 Cal. App. 4th
1539, 1554, fn. 9 [“We do not consider arguments that are raised
for the first time at oral argument”].)
33
the Attorney General points to the trial court’s finding -- in
deciding to impose a consecutive sentence for the possession
of a firearm by a felon -- that appellant brought the revolver
with him to the garage. This finding, the Attorney General
argues, supports the conclusion that appellant’s possession
of the revolver was a separate act that occurred before his
possession of the drugs. While valid in theory, this
argument fails for the same reason the Attorney General’s
similar argument in Jones failed. As in Jones, the
information alleged appellant possessed the firearm (both
while possessing the drugs and as a felon) on or about the
day of his arrest, and the verdicts found him guilty as
charged.12 (See Jones, supra, 54 Cal.4th at 359.) As in
Jones, the People’s closing argument focused exclusively on
appellant’s possession of the firearm at the time of his
arrest, rather than at any previous time.13 (See ibid.) Thus,
12 Here, the information alleged appellant committed each of
his offenses on or about February 16, 2018. Deputies found
appellant in the garage and arrested him on that day at around
1:30 am.
In his supplemental brief, the Attorney General asserts
“[t]he information did not specify when appellant first acquired
the revolver . . . .” While this is true, the information did specify
when appellant allegedly committed the offense of possession of a
firearm by a felon. As in Jones, this allegation served as the
basis for the jury’s verdict. (See Jones, supra, 54 Cal.4th at 359.)
13 In connection with the possession of a firearm by felon, the
prosecutor stated, “[I]f you believe the deputy that he saw a gun
coming out of [appellant’s] pocket, [he’s] guilty [of] felon with a
(Fn. is continued on the next page.)
34
as in Jones, the record established “that the jury convicted
[appellant] of each crime due to his being caught with the
gun in the [garage] on [the day of his arrest], not due to any
antecedent possession.”14 (Ibid.)
Second, citing People v. Vang (2010) 184 Cal. App. 4th
912 (Vang), the Attorney General argues the crimes of
possession of controlled substances while armed and
possession of a firearm by a felon address distinct dangers.
Decided some two years before Jones, Vang applied this
reasoning to hold that Section 654 did not preclude separate
punishments for these offenses, even though the defendant
possessed only a single firearm on a single occasion. (Vang,
supra, at 917.) Yet this rationale -- that multiple
punishments are “appropriate where a single act is
punishable under multiple statutes directed at distinct evils”
-- “cannot survive Jones.” (People v. Chung (2015) 237
Cal. App. 4th 462, 471.) Given our Supreme Court’s holding
firearm . . . [. E]ven if you don’t believe the deputy . . . but you
still believe that [appellant] knew about the guns, then he’s still
guilty of felon with a firearm.”
14 The Attorney General’s position in Jones was actually
stronger than it is here, as the defendant there admitted having
purchased the gun three days before his arrest. (See Jones,
supra, 54 Cal.4th at 359.) No similar evidence existed here. Nor
do we agree that the presence of two other firearms in the dresser
drawers gave rise to an inference that appellant must have
brought the revolver with him when he arrived at the garage or
the adjoining house (a date and time the record does not disclose).
35
in Jones, Vang is no longer good law.15 As in Jones,
appellant’s “single possession . . . of a single firearm on a
single occasion may be punished only once under [S]ection
654.” (Jones, supra, 54 Cal.4th at 357.)
Accordingly, we vacate appellant’s sentence and
remand for resentencing. We do not constrain the trial
court’s discretion in fashioning an appropriate sentence in
accordance with Section 654’s directives. We observe,
however, that because appellant’s convictions for possession
of controlled substances while armed involve the possession
of both the drugs and the firearm, those convictions cover
the same acts covered by his other drug- and firearm-related
offenses, thus implicating Section 654. If appellant is
punished on remand for possessing a controlled substance
for sale, he may not also be punished for possessing the same
substance while armed. Similarly, if appellant is punished
15 Vang relied in large part on People v. Harrison (1969) 1
Cal. App. 3d 115 (Harrison), a case expressly disapproved by the
Supreme Court in Jones. (See Vang, supra, 184 Cal.App.4th at
916-917 [discussing Harrison].) Harrison had upheld separate
punishments for (1) possession of a concealable firearm by a felon
and (2) carrying a loaded firearm in a vehicle, even though both
crimes involved the same firearm. It reasoned that the “two
statutes strike at different things” and that the defendant had
multiple objectives in committing his criminal conduct.
(Harrison, supra, at 122.) As noted, this reasoning is inconsistent
with Jones’s holding that Section 654 permits only one
punishment for the possession of a single firearm on a single
occasion. (Jones, supra, 54 Cal.4th at 357 [“Accordingly, we
disapprove People v. Harrison”].)
36
for the possession of a firearm by a felon, he may not also be
punished for possessing any controlled substance while
armed (but may be punished for possessing the controlled
substances for sale).
E. Constitutional Challenge to Assessments and
Restitution Fine
Appellant challenges the trial court’s imposition of the
assessments and restitution fine. Relying on People v.
Dueñas (2019) 30 Cal. App. 5th 1157, he argues the court
violated his right to due process by imposing them without
determining his ability to pay.
Before the trial court, appellant neither objected to the
imposition of these financial obligations nor requested a
hearing on his inability to pay. We agree with our colleagues
in Division Eight that a failure to object in the trial court
forfeits this issue on appeal. (See People v. Frandsen (2019)
33 Cal. App. 5th 1126, 1153-1155; accord, People v. Keene
(2019) 43 Cal. App. 5th 861.) Accordingly, we do not consider
appellant’s contentions. We observe, however, that
appellant remains free to raise his claims in this regard
before the trial court on remand.
37
DISPOSITION
The sentence is vacated and the matter remanded for a
new sentencing hearing consistent with this opinion. The
judgment is otherwise affirmed.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
38