IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
November 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 dismissed, I think that might be part of the problem here."
In Harvey, the California Supreme Court held that, where a defendant enters a plea on the condition that one or more of the counts against the defendant will be dismissed, "it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count [or counts] for purposes of aggravating or enhancing [the] defendant's sentence. . . . Implicit in such a plea bargain . . . is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Harvey, supra, 25 Cal.3d at p. 758.) In Harvey, the defendant pleaded guilty to two counts of robbery in exchange for the dismissal of a third robbery count that was based on an unrelated robbery. The trial court imposed the upper term for one of the admitted robbery counts, expressly relying on facts related to the dismissed robbery count to aggravate the sentence. (Id. at pp. 757-758.)
However, the Harvey rule does not apply where the dismissed counts are "transactionally related" to the count to which the defendant pleaded guilty. (Harvey, supra, 25 Cal.3d. at p. 758, citing People v. Guevara (1979) 88 Cal.App.3d 86, 92-94.) Consequently, the sentencing court may take into account facts underlying charges that were dismissed pursuant to a plea bargain if those facts were also transactionally related to the offense to which defendant pleaded guilty. (Harvey, at p. 758.) " 'The plea bargain does not, expressly or by implication, preclude the sentencing court from reviewing all the circumstances relating to [the] admitted offenses to the legislatively mandated end that a term, lower, middle or upper, be imposed on [the defendant] commensurate with the gravity of his crime.' " (Ibid., quoting Guevara, at p. 94.)
Standard of Review
"In the ordinary case in which a trial court imposes a probation condition based on its determination of historical or situational facts regarding the defendant or the defendant's offenses, a reviewing court is confined to determining whether the condition amounted to an abuse of discretion." (People v. Leon (2010) 181 Cal.App.4th 943, 949, citing People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) The trial court " 'has broad discretion to impose conditions to foster rehabilitation and to protect public safety.' " (Leon, at p. 949, citing Carbajal, at p. 1120.) However, the court's discretion is not without limits. "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered." (Leon, at p. 949, quoting Carbajal, at p. 1121, internal quotation marks omitted.)
Were Drug Counts Transactionally-Related to Admitted Counts?
Our analysis begins with the question whether the drug charges that were dismissed as part of defendant's plea bargain were transactionally related to the vehicle theft and receiving stolen property charges that defendant admitted. As noted previously, the parties dispute whether the dismissed drug charges were transactionally related to the admitted property offenses.
Several cases have interpreted and applied the transactionally related exception to the Harvey rule. We shall examine two cases where the admitted counts and the dismissed counts were transactionally related and two cases where the court concluded there was no transactional relationship.
In setting forth the transactionally related exception, the Harvey court relied on Guevara. The defendant in Guevara was charged with escape and five counts of kidnapping, with weapon use allegations. He pleaded guilty to escape and one count of kidnapping and the other counts and weapons enhancements were dismissed pursuant to a plea bargain. The victim of the admitted kidnapping count was a six-year-old boy named Mark. The defendant used a shotgun to compel the boy and his mother to enter a car at the beginning of the kidnapping. (Guevara, supra, 88 Cal.App.3d at p. 89.) At sentencing, the court used the facts that the admitted kidnapping involved multiple victims and the use of a weapon to enhance the sentence and impose the upper term. The defendant challenged the sentence, arguing that the court should not have considered the kidnapping count involving the mother and the weapons use allegation that were dismissed as part of the plea bargain. The appellate court concluded that the weapon use and multiple victims were properly considered as aggravating factors and explained that the circumstances the court may consider "include those facts, matters occurring, acts committed or omitted in the commission of the kidnapping of Mark. The circumstances would not be limited solely to the act of kidnap itself." (Id. at p. 93.) The court held that the plea bargain was not violated by the court's examination and use of the circumstances of the admitted crime. (Ibid.)
In People v. Bradford (1995) 38 Cal.App.4th 1733, the defendant pleaded guilty to cultivation of marijuana (Health & Saf. Code, § 11358) in exchange for dismissal of a gun possession charge (§ 12020, subd. (a)). The police found illegal shotguns and pistols in a cabin on the property where the marijuana was growing. The trial court imposed an upper term sentence after considering the defendant's weapons possession as an aggravating factor on the cultivation of marijuana count. (Id. at pp. 1735-1737.) On appeal, the defendant argued that his sentence violated Harvey because the weapons possession was not transactionally related to the cultivation of marijuana. The appellate court concluded that there was no Harvey error because the cultivation was a continuing crime and the guns were found loaded in a cabin in a compound "dedicated to" the cultivation. (Id. at p. 1739.) It was undisputed that the defendant knew about the guns and the record permitted a "fair inference" that the defendant was present in his cabin with the weapons at some point during the cultivation of the marijuana. (Ibid.) The court held that there was substantial evidence that the defendant "was armed with the shotguns during the cultivation offense, so that [the] defendant's possession of the weapons was transactionally related to the offense." (Ibid.) The court also reasoned that "it is common knowledge that perpetrators of narcotics offenses keep weapons available to guard their contraband." (Ibid.)
In each of these cases, "there was a close relationship between" the admitted offenses and the dismissed counts. (People v. Berry (1981) 117 Cal.App.3d 184, 197 (Berry) [in addition to Guevara, Berry reviewed People v. Gaskill (1980) 110 Cal.App.3d 1 and People v. Cortez (1980) 103 Cal.App.3d 491, two other cases in which dismissed counts were held to be transactionally related to admitted counts].) And as the court stated in Beagle, "[c]ases interpreting the exception have identified facts from which it could at least be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count." (Beagle, supra, 125 Cal.App.4th at p. 421.)
We turn next to Berry, a case in which the court concluded that the dismissed counts were not transactionally related to the admitted counts. The defendant in Berry was apprehended in a stolen car with a pistol under the seat. (Berry, supra, 117 Cal.App.3d at pp. 196-197.) He was charged with unlawfully taking a vehicle, carrying a concealed weapon, and carrying a loaded firearm. He pleaded guilty to the vehicle charge in return for the dismissal of the weapons charges. (Id. at p. 194.) The trial court imposed the upper term on the vehicle count, based in part on the gun possession. (Id. at p. 193.) The appellate court vacated the sentence and remanded, holding that there was no transactional relationship between the admitted and dismissed counts and that the trial court had committed Harvey error. The court observed that the question "whether the possession of the gun was transactionally related to the driving of the vehicle is a close one. . . . In each of [several cases that the court cited where there was no Harvey error] it may be seen that there was a close relationship between the offense to which there was a plea of guilty and the dismissed offense. [¶] In the instant case, no such relationship appears. There is nothing to show that the defendant used the pistol to obtain or retain possession of the vehicle. He did not drive the vehicle while brandishing the weapon. The vehicle merely served as a container for it. Such a tenuous connection between the dismissed counts and the vehicle theft does not rise to the status of being 'transactionally related.' " (Id. at p. 197.)
In Beagle, police officers searched the defendant's home and found methamphetamine, a pipe, a scale, and some baggies in one room and a pair of wooden nunchakus, a prohibited weapon, in another room. (Beagle, supra, 125 Cal.App.4th at p. 418.) The defendant was charged with possession of methamphetamine for sale and possessing nunchakus. The defendant pleaded guilty to the weapons charge in exchange for dismissal of the drug charge and probation. In granting probation, the court imposed several drug-related conditions of probation, including that the defendant not use or be around others that use drugs, submit to drug testing, and complete a substance abuse program. (Ibid.) On appeal, the defendant argued that the court erred in imposing the drug conditions of probation because the dismissed drug charges were not transactionally related to the admitted weapons charge. The court agreed. The court stated that there was no evidence of any transaction to which both the drugs and the nunchakus were connected, that it was not reasonable to infer that the defendant possessed the nunchakus to assist in the possession of drugs, and that the connection between the drugs and the weapon was too tenuous. (Id. at pp. 421-422.)
Citing Beagle and Berry, defendant asserts that the exception for conduct that is transactionally related to an admitted count does not apply here "because there was no apparent connection between the presence of the drugs in the car and defendant's actions in taking the car." She asserts that, as in Berry, "the car was simply 'a container' for the drugs" and that the connection between the dismissed counts and the admitted counts is too tenuous to be transactionally related. She contends that there is no evidentiary support for the court's statement that drugs "might be part of the problem here," which suggests that the court relied on the dismissed counts to impose the drug conditions. The Attorney General argues that the connection between defendant's drug possession and theft-related offenses is considerably greater than defendant acknowledges and that the dismissed drugs offenses are transactionally related to the admitted property offenses.
The record indicates that defendant has a serious drug problem. During the search incident to her arrest, the officers found methamphetamine in defendant's right front pocket. When the officer asked if the baggie contained drugs, defendant said, " 'Yes, I have one bad habit.' " Defendant also had methamphetamine and drug paraphernalia in her purse.
Unlike Berry, where the court found no transactional relationship, the evidence here suggests a connection between defendant's drug use and the unauthorized use of the BMW. Wei reported that his BMW was stolen between 2:00 a.m. and noon on December 29, 2008. Defendant was stopped for driving the stolen car at 7:04 p.m. that same day. She told the officers she used the pipe that was in her purse to smoke methamphetamine "earlier in the day." We note also that possessory drug offenses are continuing crimes. (People v. Bland (1995) 10 Cal.4th 991, 995.) A reasonable inference from these facts is that defendant was under the influence of methamphetamine either when she stole the car or when she drove the stolen car.
Defendant focuses on the unlawful taking of the BMW and fails to acknowledge that she also pleaded no contest to receiving stolen property consisting of credit cards, check books, and passed checks. Defendant had methamphetamine and drug paraphernalia in her purse, which was in the same backpack as the stolen credits cards, stolen checks and the burglary tools. It is common knowledge that drug users commit theft and theft-related offenses to satisfy their drug habits. "It requires no recitation of authority to observe that drug offenders frequently commit burglary and theft as a means of funding their illegal activities with drugs." (People v. Constancio (1974) 42 Cal.App.3d 533, 540.) Defendant was 27 years old and unemployed. She told the officers that she borrowed the car to buy milk, but also stated that she was going to a store where she once worked, hoping someone would give her the milk. This evidence suggests she was without funds, which, along with the stolen property and burglary tools, reinforces the inference that she committed the theft-related offenses to support her drug habit.
For these reasons, we conclude that the dismissed drug offenses and admitted property offenses were transactionally related. Since the admitted property offenses were transactionally related to the dismissed drug offenses, we conclude that 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 second issue presented here, the question whether the Harvey rule applies to probation conditions.
The judgment is affirmed.
WE CONCUR: Elia, Acting P.J. Mihara, J.