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The People v. Michael Walter Berger


March 1, 2011


Super. Ct. No. CRF074132

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

P. v. Berger CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant guilty of two counts of selling heroin (Health & Saf. Code, § 11352, subd. (a)), two counts of offering to sell or transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). After finding defendant had two prior narcotics-related convictions (Health & Saf. Code, § 11370.2, subd. (a)) and had served three prior prison terms (Pen. Code, § 667.5, subd. (b)),*fn1 the trial court sentenced defendant to an aggregate term of 16 years in state prison.

On appeal, defendant contends the trial court improperly imposed the upper term by making dual use of his prior convictions and failing to consider mitigating factors. He also contends that sentence on count 3 should have been stayed rather than ordered to run concurrently. We shall modify the award of custody credits and otherwise affirm.


In June 2007, undercover agent Maritza Cortez called defendant as part of an investigation and attempted to purchase heroin. Ultimately, defendant agreed to sell Cortez a gram of heroin for $60. When they arrived at the agreed-upon location, Cortez gave defendant $60 and defendant gave her heroin that he produced from his pants. Cortez was wearing a "surveillance wire" and the location had been set up with audio and video surveillance equipment.

A couple of weeks later, Cortez called defendant again and arranged another purchase of heroin. She also asked if she could purchase methamphetamine from him as well. After negotiations regarding price, defendant agreed to sell Cortez an eighth of an ounce of methamphetamine for $230. Later that day, Cortez called defendant and told him she just wanted the heroin. They met at the agreed-upon location and defendant sold Cortez heroin for $60. Cortez was wearing a wire and the transaction was videotaped.

A few days later, officers executed a search warrant at defendant's residence. During the search, officers seized hypodermic needles, glass smoking pipes, and a spoon with burn marks. Defendant was located nearby and arrested. In an inside pocket in defendant's pants, officers found three baggies of methamphetamine, a glass smoking pipe of the type used for narcotics, and two sets of scales.

Defendant did not testify at trial. Defense counsel argued defendant was entrapped by law enforcement. Videotapes of both sales were played for the jury. After a brief deliberation, the jury found defendant guilty of all counts--two counts of selling heroin, one count of offering to sell methamphetamine, one count of transporting methamphetamine, and one count of possessing methamphetamine. Thereafter, the trial court found defendant had two prior narcotics-related convictions and had served three prior prison terms.

At sentencing, the trial court explained its selection of the upper term for count 1 (selling heroin) as follows: "First, let's talk about the factors that I can't use in imposing sentence. I can't use any of the prior convictions or prison commitment[s] alleged in the County Enhancement or Case Enhancement to aggregate the sentence since they carry their own terms. Aside from those convictions[,] it's nonetheless true that the defendant has [a] lengthy criminal record starting in 1990. It's true that he was on parole [during the] commission of these offenses. And that he has suffered multiple parole violations. I do not find that there is anything that mitigates the defendant's behavior in this case other than the fact that he was a street level drug dealer, but that's not really a mitigating factor. It's just my conclusion about what the evidence showed in this case."

The court imposed the upper term of five years for count 1 (selling heroin), a consecutive one year four months for count 2 (selling heroin), a concurrent four years for count 3 (offering to sell methamphetamine), a stayed term for count 4 (transporting methamphetamine), a consecutive eight months on count 5 (possessing methamphetamine), two three-year terms for the two narcotics-related prior convictions, and three one-year terms for the three prior prison commitments, for an aggregate sentence of 16 years. The court ordered the abstract of judgment to reflect that placement in a drug treatment program pursuant to section 1203.96 was appropriate.

DISCUSSION I Imposition of the Upper Term

Defendant contends the court's imposition of the upper term was the result of the court's improper dual use of his prior felony convictions and the court's failure to consider circumstances in mitigation. Not only has defendant forfeited his right to raise this issue on appeal by failing to object in the trial court, his contention lacks merit.

"[F]act-specific errors in the court's statement of reasons are not readily susceptible of correction on appeal." (People v. Scott (1994) 9 Cal.4th 331, 355.) Thus, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (Id. at p. 356.) This is provided, of course, that defendant had a meaningful opportunity to raise his objections before the trial court. (Ibid.)

Defendant contends he was deprived of a meaningful opportunity to raise his objections at the trial court. Not so.

A probation report was prepared for the sentencing hearing, which included a sentencing recommendation for the upper term. Defendant was present with counsel at the sentencing hearing and there is nothing in the record to suggest that defendant was not provided with a copy of the probation report. The trial court recited those factors it found to be aggravating factors on the record, which were the same factors covered in the probation report, and, as in the probation report, found no factors in mitigation. Defendant made no objection before or after the court's statement of reasons. Defendant had the opportunity to raise his objections below and he did not. Thus, he has forfeited his right to raise them in this court.

In his reply brief, defendant argues that his failure to object was the result of ineffective assistance of counsel. This argument fails for several reasons. First, he did not raise the argument in the opening brief as required. The argument was improperly raised for the first time on reply, and therefore we need not consider it. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; see also Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10 [unfair to consider issues raised in reply brief]; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)

Second, the issue was not properly briefed. The contention that trial counsel was ineffective is merely perfunctorily asserted. We need not consider contentions for which a party offers no authority or reasoned argument. (See People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [issues perfunctorily asserted need not be considered].) Moreover, an objection by counsel here would have been futile because defendant's contention has no merit. (See People v. Price (1991) 1 Cal.4th 324, 386-387.)

The trial court expressly stated it was not considering the felony convictions that were the subject of the enhancements, but rather, the fact that "[a]side from those convictions it's nonetheless true that the defendant has a lengthy criminal record starting in 1990." This history includes an additional felony, five misdemeanors, and three parole violations. In any event, the court stated other valid reasons to impose the upper term, namely defendant's unsatisfactory prior performance on parole and his status on parole at the time of the offense. One aggravating circumstance will suffice to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 732.)

As for defendant's claim the court failed to take into account his alleged mitigating circumstances, the record does not support it. Although the jury rejected his entrapment defense, defendant maintains that his conviction was the result of "over-reaching conduct by the police," which should mitigate his sentence. Defendant relies on the language in People v. Kellett (1982) 134 Cal.App.3d 949, 962, that "it is nonetheless true that evidence of a police setup" can be considered a factor in mitigation "where '[a] defendant with no apparent predisposition to do so was induced by others to participate in the crime.'" (Ibid., quoting what is now Cal. Rules of Court, rule 4.423(a)(5).) As in Kellett, however, such is not the case here. While the particular buy was made by police, there was no evidence defendant was pressured into committing the crimes, nor does defendant's criminal record support a conclusion that he had no predisposition to sell heroin or methamphetamine. Defendant has a previous conviction for possession or purchase for sale, sold to Cortez without coercion on two separate occasions, and was found to have scales indicative of sales activity on his person at the time of his arrest (two weeks after Cortez's last purchase). Thus, the court appropriately did not find this a factor in mitigation.

As for defendant's addiction to drugs, the probation report detailed defendant's drug use since 1985, his lengthy criminal history of drug-related offenses, and his numerous grants of probation and concluded there were no circumstances in mitigation. "[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511; People v. Reyes (1987) 195 Cal.App.3d 957, 963-964 [addiction should not be considered as a circumstance in mitigation where "addiction has simply provided the defendant with a continuing incentive or excuse to commit crimes"].) The court reviewed the report and noted during sentencing that defendant's behavior resulted from his long-standing addiction problem, but did not find it to be a circumstance in mitigation. We find no error.

For the foregoing reasons, we reject defendant's contention that the trial court abused its discretion in imposing the upper term.

II Concurrent Sentences

The trial court imposed concurrent sentences for the sale of heroin in count 2 and the offer to sell methamphetamine in count 3. Defendant contends the trial court was required to stay count 3 pursuant to section 654 because the two counts arose out of the same transaction with Agent Cortez.

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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

"Section 654 applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction. [Citation.] The purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability. [Citation.] Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]" (People v. Saffle (1992) 4 Cal.App.4th 434, 438 (Saffle).)

"The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]" (Saffle, supra, 4 Cal.App.4th at p. 438.)

Section 654, however, does not preclude multiple punishment for the simultaneous possession for sale of various narcotic drugs. (People v. Barger (1974) 40 Cal.App.3d 662, 672; People v. Monarrez (1998) 66 Cal.App.4th 710, 713-715 (Monarrez); see also People v. Blake (1998) 68 Cal.App.4th 509, 511-512; People v. Goodall (1982) 131 Cal.App.3d 129, 147-148.) "[D]ifferent drugs have different effects and pose different dangers to society. Although the overall intent is always to make money, the objectives of selling cocaine and heroin are separate." (Monarrez, supra, 66 Cal.App.4th at pp. 713-715.)

Here, the trial court specifically found that defendant's sale of heroin on July 10, 2007, and his offer to sell methamphetamine earlier on that same date, "involve[d] a single period of aberrant behavior" so as to support the imposition of concurrent sentences. In so finding the court necessarily determined that section 654 did not preclude multiple punishment in this case. The record supports that finding.

Although only one intended recipient was involved, the offer to sell methamphetamine was not completed at the same time or in the same place as the sale of heroin and, obviously, two different drugs were involved. "The narcotics are separately classified and regulated by the Legislature; they have different effects and pose different hazards to society." (Monarrez, supra, 66 Cal.App.4th at p. 715 [defendant convicted of possessing cocaine and heroin on same occasion].) The trial court found defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. Substantial evidence supports the trial court's finding.

III Section 4019

This court's miscellaneous order No. 2010-002 (filed March 16, 2010) deems defendant to have raised the issue (without further briefing) of whether January 2010 amendments to section 4019 apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude the amendments apply to all appeals pending at the time of their enactment. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendments lessening punishment for crime apply to acts committed before passage, provided judgment is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [same].) Defendant is not among the prisoners excepted from the additional accrual of credit. (§§ 4019, subds. (b)(2) & (c)(2), 2933.1.) Consequently, defendant having served 660 days of presentence custody, is entitled to 660 days of conduct credits. (§ 4019, subds. (b)(1), (c)(1) & (f).) We will modify the judgment and direct the trial court to amend the abstract of judgment accordingly.


The judgment is modified to award defendant 660 days of presentence conduct credits. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur:



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