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THE PEOPLE v. MARY DELFINA LOPEZ

November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARY DELFINA LOPEZ, DEFENDANT AND APPELLANT.



The opinion of the court was delivered by: McAdams, J.

P. v. Lopez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The prosecution charged defendant Mary Delfina Lopez with one count of theft or unauthorized use of a vehicle (Pen. Code, § 10851, subd. (a); a felony, count 1),*fn1 one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); a felony, count 2), one count of receiving stolen property (§ 496, subd. (a); a felony, count 3), and one count of possessing drug paraphernalia (Health & Saf. Code, § 11364; a misdemeanor, count 4). Pursuant to a plea agreement, defendant pleaded no contest to counts 1 and 3 (the property offenses) on the conditions that she not be sent to prison, that she serve 90 days in county jail, and that counts 2 and 4 (the drug offenses) be dismissed at the time of sentencing.

At sentencing, the court suspended imposition of sentence and granted three years probation. Among the conditions of probation, the court ordered that defendant "not possess or consume alcohol or illegal drugs or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale" and that defendant complete a substance abuse treatment program. The court dismissed counts 2 and 4.

In People v. Harvey (1979) 25 Cal.3d 754 (Harvey), the California Supreme Court held that it was improper for a trial court to enhance or aggravate a defendant's sentence based on facts underlying a count that was dismissed under a plea agreement. (Id., at p. 758.) However, Harvey does not apply where the dismissed counts are "transactionally related" to the count to which the defendant has pleaded. (Ibid.)

On appeal, defendant contends that the court improperly imposed the drug and alcohol conditions of probation, since the drug charges were dismissed without a Harvey waiver. Defendant asserts that the dismissed counts were not transactionally related to the auto theft and receiving stolen property counts to which she pleaded no contest. She observes that there is a split of authority on the question whether Harvey applies to probation conditions and urges us to follow People v. Beagle (2004) 125 Cal.App.4th 415 (Beagle), which held that the Harvey rule applies to probation conditions. The Attorney General argues that the dismissed counts were transactionally related to the property offenses to which defendant pleaded no contest. Alternatively, he urges us to follow People v. Martin (2009) 175 Cal.App.4th 1252, review granted, October 22, 2009, S175356, which held that the Harvey rule does not apply to probation conditions.*fn2 We conclude that the dismissed drug offenses were transactionally related to the admitted property offenses and that, consequently, the court did not err under Harvey when it imposed the drug-related conditions of probation. Since we conclude that the offenses were transactionally related, we shall not reach the question whether the Harvey rule applies to probation conditions.

FACTS AND PROCEDURAL HISTORY

On December 29, 2008, Yuan Wei contacted the San Jose Police Department (SJPD) and reported that his 2007 BMW 328i had been stolen. Several hours later, BMW dispatch called SJPD and reported that it had located the car on State Street, but had lost the signal. Minutes later, a police officer saw the car travelling southbound on North First Street and conducted a vehicle stop. Defendant, who was 27 years old, was driving the stolen car; her boyfriend, Eduardo Reyes, was in the front passenger seat.

During the search incident to defendant's arrest, the officer found a plastic baggie containing methamphetamine in her right front pocket. The officer asked defendant if the baggie contained drugs and she said, " 'Yes, I have one bad habit.' "

During an inventory search of the car, the officers found a backpack in the front passenger area. Defendant's purse and some tools, which the officers characterized as "burglary tools," were inside the backpack. The officers found a broken glass pipe and a clear plastic baggie containing methamphetamine inside defendant's purse. There was a white residue inside the pipe. The officers found "passed checks," two check books, and two credit cards, all of which belonged to different individuals and appeared to have been stolen, inside the backpack. Amir Tavakol, the owner of one of the credit cards, told the officers that someone smashed a window on his car six days earlier and stole the credit card from his glove box.

Defendant waived her Miranda*fn3 rights and gave a statement to the officers. She told the police she borrowed the car from a friend and did not know it was stolen. She admitted that both baggies contained methamphetamine and that she used the pipe to smoke methamphetamine. She said she found the credit cards and checks on the floor of the car and put them in the backpack. She admitted the tools (a Leatherman multi-tool, a folding knife, pliers, and cutters) were hers and said she used them for gardening.

In the waived referral probation report filed prior to sentencing, the probation officer recommended that imposition of sentence be suspended and that defendant be granted probation. The probation officer stated, "As this matter involved drug use, the full spectrum of substance abuse condition[s] is suggested." The probation officer recommended the court impose conditions requiring that defendant "not possess or consume alcohol or illegal drugs, or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale" (Condition 8) and that defendant "complete a substance abuse treatment program, as directed by the Probation Officer" (Condition 9).

At sentencing, defense counsel objected to the imposition of Conditions 8 and 9 since the drug counts were dismissed. The court responded, "Nevertheless, she was found with drugs in her possession. Even though they were ...


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