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The People v. Michael Walter Berger

March 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL WALTER BERGER, DEFENDANT AND APPELLANT.



Super. Ct. No. CRF074132

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

P. v. Berger CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BACKGROUND

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 ...


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