IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT ANDREW COLLINS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F02853)
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Collins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Robert Andrew Collins was a passenger in a vehicle law enforcement officers stopped after the driver ran through two stop signs. An officer ordered defendant out of the car and asked him if he had any drugs. Defendant eventually admitted he did and began to reach into his pants pocket. The officer reached into the pocket and retrieved a plastic baggie holding six wrapped baggies containing cocaine.
Officers searched the vehicle and discovered loaded firearms under the driver's and front passenger's seats. They also found clothing and a box of plastic baggies in the back seat, and a digital scale and mail addressed to defendant in the trunk.
At trial, defendant stipulated he had a prior felony conviction. Also at trial, the trial court denied defendant's motion to suppress the evidence found on him and in the vehicle.
Following trial, a jury convicted defendant of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(1)), and possession of a loaded firearm (Pen. Code, § 12031, subd. (a)(1)). With respect to the transportation conviction, the jury found true a personal arming enhancement (Pen. Code, § 12022, subd. (c)).*fn1
The trial court sentenced defendant to a state prison term totaling three years, calculated as follows: the low term of three years on the transportation count based on finding the drugs were possessed for personal use, plus a concurrent low term of 16 months on the felon in possession of a firearm count. The court struck the personal arming enhancement, and it stayed sentencing on all other counts under Penal Code section 654.
Defendant appeals, claiming (1) the trial court erred when it denied his motion to suppress evidence; (2) convicting him of transporting a controlled substance when the trial court found he possessed the substance only for personal use violated the governing statute or, if not that, his constitutional rights; and (3) the trial court committed misconduct and violated his constitutional rights by commenting on defendant's potential punishment.
We affirm the judgment. We remand solely for correction of sentencing and order that an amended abstract of judgment be prepared.
Denial of Motion to Suppress Evidence
Defendant contends the trial court erred in denying his motion to suppress evidence. He claims the questioning by the officer about drugs and obtaining the drugs from him, as well as the search of the vehicle, violated his Fourth Amendment rights because (1) the search of his person was not related to a lawful, temporary detention; (2) the search of the car was not a lawful search incident to an arrest; (3) no standard police procedures on inventory searches existed to validate the vehicle search; and (4) the doctrine of "inevitable discovery" does not apply in this instance.
We conclude the warrantless search of defendant's person and the vehicle did not violate the Fourth Amendment. Both were incident to a lawful detention and arrest. In addition, discovery of the evidence recovered from the searches was inevitable. Officers would have searched defendant upon learning he had an outstanding warrant for his arrest and would have found the cocaine at that time. Officers also conducted a lawful inventory search upon the arrest of the driver and would have found the weapons then.
A. Additional background information
On April 9, 2008, Sacramento County law enforcement officers were conducting a "narcotics sweep" or "warrant sweep." Sheriff's Detective Chris Maher described the warrant sweep as "a high impact directed patrol. We had probation, parole, warrants and searches already lined up, and we were going around with our directed patrols contacting offenders, anywhere from traffic to warrants and probation."
Detective Maher's team included Detective Joseph Miller, Sergeant Scott Hays, Deputy County Probation Officer Solomon, and Deputy United States Marshal Michael Caverly. The team members wore plain clothes with gun belts and raid vests. The black vests had the word "Sheriff" printed on the front and back in large yellow letters and their badges were visible. The members were using unmarked vehicles.
At about 1:15 p.m., the team members had just finished contacting a bicyclist at the intersection of Shadowcreek Drive and Hackberry Lane and were standing on the side of the street when they observed a four-door, gold Mercury Sable fail to stop at the intersection's stop sign. The team members immediately got into their cars to make a vehicle stop on that car. Detective Maher rode in Sergeant Hays's vehicle.
Falling behind the Sable as it traveled down Hackberry Lane, Detective Maher watched as it rolled through another stop sign while making a right-hand turn. Sergeant Hays caught up, activated hidden lights on his car, and stopped the Sable. Four people were riding in the Sable: Brian Huey was driving, defendant was seated in the front passenger seat, and two female juveniles were seated in the rear.
Detective Maher approached the Sable's driver's side. He informed Huey he had stopped the vehicle for running the stop signs and asked to see Huey's driver's license. Huey said he did not have a driver's license and, in fact, he had never had one. Detective Maher ordered Huey out of the Sable, told him he was under arrest for being an unlicensed driver, and handcuffed him.
Meanwhile, Detective Miller had approached the Sable's passenger side to make contact with defendant. Within "[f]ive, ten seconds" after Detective Maher contacted Huey, Detective Miller contacted defendant and asked him to get out of the car. After obtaining defendant's name, Detective Miller asked him if he was on probation or parole. Defendant said no. Detective Miller asked him whether he had any warrants that he knew about. Defendant said he did not.
Next, Detective Miller asked defendant if he had any narcotics on him. Defendant "kind of took a deep breath and then said no." Detective Miller noticed that defendant seemed a little nervous, was fidgety, and he kept touching his front left pants pocket with his hand and putting his hand in that pocket. This behavior raised Detective Miller's suspicions. He instructed defendant to keep his hands out of his pockets, and he asked defendant again if he had any narcotics on him. Defendant said no, but at the same time he shook his head yes. He nodded his head up and down in an affirmative manner.
Detective Miller asked defendant a third time whether he had any narcotics on him. Defendant nodded his head yes without saying anything. He started to put his hand in his front left pants pocket, but Detective Miller told him to keep his hand out of the pocket and he would retrieve the item. Detective Miller reached into defendant's left pants pocket and retrieved a plastic baggie. Inside that baggie were six additional baggies each containing a white powdery substance. Detective Miller asked defendant what was the white substance, and defendant said it was "coke." Detective Miller did not pat search defendant before retrieving the drugs from defendant's pocket.
Detective Miller arrested defendant, placed him in handcuffs, and sat him down on the ground. Somewhere about this time, Detective Miller learned from another officer there was an outstanding misdemeanor traffic arrest warrant for defendant. He estimated anywhere from 30 seconds to one minute elapsed from the time he first approached defendant until he obtained the drugs.
After defendant was placed under arrest, the officers removed the females from the Sable and had them sit on the ground. A school resource officer eventually picked the girls up and returned them to school.
Once everyone was out of the Sable, Detectives Maher and Miller and Marshal Caverly began searching the car. Detectives Maher and Miller characterized the search as an inventory search and a search incident to arrest. They conducted the search without a search warrant.
Detective Maher found a loaded .25-caliber pistol under the driver's seat. The gun had five bullets in its magazine and appeared to be in operative condition. Detective Maher stated someone sitting in the front seat could have accessed the gun. Continuing his search, Detective Maher found a box of plastic sandwich baggies and "an enormous amount of [male] clothes" in the backseat.
Meanwhile, Marshal Caverly found a fully loaded .357-magnum revolver under the front passenger seat where defendant had been sitting. The gun did not have a safety device and appeared to be in operative condition. A passenger sitting in the front seat could have easily accessed the gun.
While the vehicle search was occurring, both Huey and defendant were handcuffed and seated away from the Sable and near a law enforcement officer. There was no danger either of them could have retrieved one of the firearms at that time.
Detective Miller also searched the vehicle. He found an old paycheck stub for defendant in the glove compartment. In the trunk, he found several pieces of mail addressed to defendant and a plastic digital scale. The scale had on it "green leafy material" and a small amount of an "off-white -- like a powdery substance."
The Sable was registered to Victoria Morrow. Defendant claimed Morrow was his aunt, but Marjorie Beazer, defendant's mother, testified Morrow was defendant's maternal grandmother. Beazer stated Morrow purchased the Sable for defendant to use for transportation to work.
The officers had the Sable towed. Although Detective Maher and his team completed a "tow report," they did not inventory the items found inside the car on a "property receipt" because in their opinion the items had no value. However, they wrote in their reports that they found guns, clothing, baggies, and other items in the car.
Laboratory analysis determined the six individual baggies seized from defendant contained cocaine with individual net weights of .36 grams, .19 grams, .38 grams, .18 grams, .34 grams, and .27 grams. Detective Miller stated defendant possessed in the six baggies approximately 17 doses of cocaine.
The Sacramento County Sheriff's Department has a general order stating the department's policy on vehicle towing and inventory searches. The relevant portions of the general order state:
"2. Mandatory circumstances: It is the policy of the Department that officers shall tow any vehicle being driven by a person who has had his/her license suspended or revoked, or by a person who has never been issued a driver's license (CVC 14602.6). The vehicle shall not be released to anyone at the scene . . .
"3. [I]t is the policy of the department that in every instance where a vehicle is towed pursuant to this general order, that officers conduct a thorough inventory search of the vehicle and all containers within it to assure that any property within that is of extraordinary value is accounted for and disposed of as described [in the general order]."
Based on this evidence, the trial court denied defendant's motion to suppress, concluding the searches of defendant and the Sable were lawful as incident to an arrest and as an inventory search. Defendant contests this ruling.
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.) We review first the search of defendant's person and the questioning by Detective Miller.
1. Search of his person
Defendant claims the retrieval of the baggie from his pants pocket by Detective Miller was not lawful because his detention was not lawful. He claims Detective Miller violated his Fourth Amendment rights when he directed defendant to get out of the car, asked defendant questions about whether he possessed drugs, and searched defendant without any reasonable belief defendant was armed or dangerous. We disagree with each of defendant's claims. He was lawfully detained, and he was lawfully searched incident to arrest.
First, the detention was lawful. Defendant admits the officers had a reasonable basis for stopping the Sable, and no one disputes that defendant was seized from the moment the Sable was stopped. (See Brendlin v. California (2007) 551 U.S. 249, 251 [168 L.Ed.2d 132, 136] (Brendlin).) But defendant claims Detective Miller's actions toward him after the stop -- ordering him out of the car, asking him questions, and reaching into his pocket -- extended beyond what was reasonably necessary and were not based on any independent reasonable suspicion of criminal activity unrelated to the traffic stop. He is incorrect.
Detective Miller had authority to order defendant out of the car. "[D]uring a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk." (Brendlin, supra, 551 U.S. at p. 258, italics added.) "[A]n officer making a traffic stop may, without violating the Fourth Amendment, order the driver and passengers to exit a car. [Citation.] [The officer may do so] without any articulable justification. [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 892-893, fn. omitted.)
Defendant asserts the deputies could order him out of the car only to pat him down for weapons upon a reasonable suspicion he might be armed and dangerous, citing Arizona v. Johnson (2009) 555 U.S. 323 [172 L.Ed.2d 694]. That case concerns reasonable cause to conduct a patdown search on a passenger and does not apply to this point. As the Supreme Court stated in Brendlin, the officers did not need to have a concern for their safety before ordering defendant out of the car.
Detective Miller also had authority to ask defendant if he possessed drugs. "Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. [Citations.] While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. [Citations.]" (People v. Brown (1998) 62 Cal.App.4th 493, 499 (Brown).)
"Obviously, this rule must be applied in light of the companion rule that the length of a detention must be reasonably related in scope to the circumstances which justified the interference in the first place. [Citations.]" (Brown, supra, 62 Cal.App.4th at p. 499.) Here, the time from the traffic stop until Huey's and defendant's arrest was short. Detective Miller asked defendant to exit the car within 10 seconds of Detective Maher's contacting Huey. He immediately asked defendant for his identification, status, and whether he possessed drugs. Then another 30 to 60 seconds elapsed until Detective Miller obtained the drugs. The questions and search did not unduly prolong the detention or extend the period justified by the valid traffic stop.
In any event, Huey's failure to produce a driver's license and defendant's response and behavior to Detective Miller's questions furnished grounds for expanding the scope and duration of the detention. (See People v. Valencia (1993) 20 Cal.App.4th 906, 918; see also People v. Bell (1996) 43 Cal.App.4th 754, 768.) Defendant's ambiguous responses to the detective's questions and his constant touching of his pants pocket created a reasonable suspicion of criminal activity that justified extending the scope of the detention. All of these circumstances rendered defendant's detention lawful.
Second, not only was the detention lawful, but the search was lawful as well. The circumstances arising in the detention and defendant's ultimate admission of possessing drugs vested Detective Miller with authority to reach into defendant's pocket and retrieve the drugs. Generally, a peace officer making a temporary detention may search the suspect only if the officer has reason to believe he is dealing with an armed and dangerous individual and he limits his search to a patdown for weapons. (Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [124 L.Ed.2d 334, 344].) During such a frisk, the officer may reach into a suspect's pockets or clothing only to remove what reasonably feels like a weapon. (Sibron v. New York (1968) 392 U.S. 40, 64-66 [20 L.Ed. 917, 935-937].)
However, an officer may reach into clothing to recover items that do not feel like weapons when the officer has probable cause to arrest the suspect. At that point, the patdown may be expanded to a full search permitted incident to arrest. (People v. Dibb (1995) 37 Cal.App.4th 832, 836-837.) And, of significance here, the "fact defendant was not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest. [Citation.]" (People v. Adams (1985) 175 Cal.App.3d 855, 861 (Adams).)
The facts in Adams are similar to those before us. There, an officer received a detailed description of a robbery perpetrator and his vehicle from the victim. Approximately two hours later, the officer was patrolling in the area where the robbery occurred when he saw a person near a vehicle, and both matched the victim's description of the perpetrator and his car. The officer and his partner drove their patrol unit toward the suspect, who looked toward the officers, became nervous, and started walking away from them. The officers ordered the suspect to halt, which he did. The officers conducted a patdown search and found no weapons. The officer asked the suspect to produce identification. The suspect became noticeably nervous and stated he did not possess any. At that point, the officer looked at the suspect's rear pants pocket and observed the outline of a wallet. The officer asked the suspect if he had identification in his wallet. The suspect said he did not. Believing the suspect was lying, the officer seized the wallet from the suspect's pocket. As he did, the officer noticed a card protruding from the wallet that bore the robbery victim's name. Ten minutes later, the victim was brought to the scene, and he positively identified the suspect as the perpetrator. The officers then arrested the suspect. (Adams, supra, 175 Cal.App.3d at p. 860.)
The Court of Appeal concluded the warrantless search was lawful as incident to arrest. The officer had probable cause to arrest the suspect prior to the search and the search was substantially contemporaneous with the arrest. (Adams, supra, 175 Cal.App.3d at pp. 861-864.)
So it is here. Defendant's admission that he possessed drugs gave Detective Miller probable cause to arrest him prior to the moment when the Detective seized the baggie from defendant's pants pocket, and the search was contemporaneous with defendant's arrest. Probable cause exists "if 'at the moment the arrest was made . . . the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing'" the suspect had violated the law. (Hunter v. Bryant (1991) 502 U.S. 224, 228 [116 L.Ed.2d 589, 596].)
Prior to the search, defendant confessed to Detective Miller that he had narcotics on his person. Initially, defendant had said he did not, but he was nervous, fidgety, and kept touching his pants pocket and trying to insert his hand into the pocket. His behavior raised Detective Miller's suspicion, and Detective Miller instructed defendant to keep his hand out of his pocket. He asked defendant again if he had narcotics, and defendant said no, but at the same time nodded yes. Asked a third time whether he had narcotics on him, defendant unequivocally nodded yes, and he apparently began to retrieve them by inserting his hand in his pants pocket. Thus, by this time, and before conducting the search, Detective Miller had sufficient information on which a prudent man would believe defendant was then violating the law. And the arrest happened immediately after the search.
Under these circumstances, we conclude Detective Miller's retrieval of the baggie from defendant's pants pocket was a lawful warrantless search incident to defendant's lawful detention and arrest.
Even if that were not so and defendant had said nothing to Detective Miller but his name, the drugs on his person would have inevitably been discovered. A mere minute or two after defendant was ordered out of the car, Detective Miller learned defendant had an outstanding warrant for his arrest. At this point, had Detective Miller not done so already, he would have certainly arrested defendant on the outstanding warrant and conducted a full search incident to that arrest. Thus, even if Detective Miller had exceeded his bounds, which he did not, the evidence would have been discovered by lawful means. The exclusionary rule does not apply in such a circumstance. (Nix v. Williams (1984) 467 U.S. 431, 443-444 [81 L.Ed.2d 377, 387].)
Defendant was lawfully detained, and he was lawfully searched based upon probable cause to arrest. The drugs also would have inevitably been discovered upon his arrest on the outstanding warrant. The trial court correctly denied his motion to suppress the evidence found on his person.
2. Search of the Sable
Defendant next contends the detectives' warrantless search of the Sable was not lawful as it allegedly was not within the lawful scope of a vehicle search incident to arrest, it was not conducted pursuant to standardized department procedures governing inventory searches, and the evidence retrieved from the car would not have been discovered inevitably and admitted as such. We disagree with each of defendant's contentions.
The vehicle search was within the lawful scope of a search incident to arrest. "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (Arizona v. Gant (2009) 556 U.S. 332, ___ [173 L.Ed.2d 485, 501] (Gant), italics added.)
It was reasonable for the detectives to believe the Sable contained evidence of defendant's arrest for possessing and transporting cocaine. Defendant was found possessing six individual bags each containing cocaine for a total of approximately 17 doses. He was being transported in a car that had just run two stop signs. These facts gave the officers reasonable grounds to believe they would find additional incriminating evidence in the Sable of defendant possessing and transporting a controlled substance. As a result, they did not need a warrant before searching the car.
The vehicle search was also a lawful inventory search conducted pursuant to standardized department criteria. Sheriff's department policy required the detectives to have the Sable towed because Huey did not have a driver's license. Because the vehicle was to be towed, that same policy also required the detectives to conduct "a thorough inventory search of the vehicle and all containers within it to assure that any property within that is of extraordinary value is accounted for and disposed of . . . ." Because this policy is sufficiently standardized and designed to produce an inventory of items in the vehicle, searches done pursuant to it do not violate the Fourth Amendment. (Florida v. Wells (1990) 495 U.S. 1, 4 [109 L.Ed.2d 1, 6-7].)
In addition, the evidence seized from the car would have been inevitably discovered. When the detectives impounded the car on account of Huey's arrest, they would have lawfully performed an inventory search pursuant to the department's policy and inevitably would have discovered the firearms and other items.
Defendant thus suffered no violation of his Fourth Amendment rights, and the trial court correctly denied his motion to suppress the evidence found on his person and in the Sable.
Conviction for Transporting
Defendant claims he was wrongfully convicted of transporting a controlled substance under Health and Safety Code section 11352, subdivision (a). He argues this statute cannot be read to criminalize transporting controlled substances that are possessed only for personal use, a determination made by the trial court. He also contends that imposing a greater punishment for possessing a controlled substance "while moving" than when possessing a substance while stationary violates constitutional principles of equal protection. We disagree with both of defendant's arguments.
Defendant's first claim that he cannot be convicted of transporting drugs where the court determined he possessed drugs only for personal use has been rejected by our Supreme Court in People v. Rogers (1971) 5 Cal.3d 129, 134-136 (Rogers). His argument concerns the word "transport" as used in Health and Safety Code section 11352, subdivision (a). Under that statute, "every person who transports, imports into this state, sells, furnishes, administers, or gives away . . . any [specified] substance . . . unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years." (Health & Saf. Code, § 11352, subd. (a).)
Interpreting the word "transport" in an analogous statute, then Health and Safety Code section 11531 (now Health & Saf. Code, § 11360), the high court in Rogers concluded the crime of transporting occurred no matter the transport's purpose, including one of personal use. The court stated: "Nor can we agree with defendant's further contention that the offense of illegal transportation requires a specific intent to transport contraband for the purpose of sale or distribution, rather than personal use. Neither the word 'transport,' the defining terms 'carry,' 'convey,' or 'conceal,' nor [former] section 11531 read in its entirety, suggests that the offense is limited to a particular purpose or purposes.
"It should be noted that [former] section 11531 not only prohibits transporting [a controlled substance], but also importing, selling, furnishing, administering, or giving it away. The prohibitions are in the disjunctive -- not the conjunctive -- and nothing in that section exempts transportation (or importation) of [a controlled substance] for personal use. Had the Legislature sought to restrict the offense of transportation to situations involving sale or distribution, it could easily have so provided. For example, [subdivision (b) of Health and Safety Code section 11352 provides that 'any person who transports for sale any controlled substances . . . within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years.' (Italics added.)]
"Thus, the courts of this state have consistently applied [former] section 11531 and similar sections to situations involving the knowing conveyance of narcotics or drugs in a moving vehicle, whether or not the evidence disclosed that the contraband was intended for sale or distribution. [Citations.]" (Rogers, supra, 5 Cal.3d at pp. 134-135.)
"[I]n the absence of any legislative intent to the contrary, we conclude that [former] section 11531 [and by analogy, section 11352] requires only a knowing transportation of [a controlled substance], whether for personal use, sale, distribution or otherwise." (Rogers, supra, 5 Cal.3d at p. 137.)
Defendant asks us not to follow Rogers, claiming the case does not apply, is distinguishable, or should be reconsidered. However, the Rogers rule has broad application to statutes banning transportation of unlawful substances, and the factual differences between this case and that one are of no moment. We thus are compelled to apply Rogers here under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Health and Safety Code section 11352's prohibition of transporting cocaine applied to defendant when he admitted possessing cocaine while traveling in a vehicle.
Defendant claims this holding and the Rogers rule violates his equal protection and substantive due process rights. He asserts there is no rational or legitimate basis for the Legislature to punish a person who is sitting in a stationary car intending to sell cocaine more leniently than a person sitting in a moving car who possesses cocaine intending to use it only for himself.*fn2 Defendant did not raise this argument below and is thus deemed to have forfeited it. (People v. Carpenter (1997) 15 Cal.4th 312, 362, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106; People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.)
In any event, the argument is without merit. Even assuming for argument only that defendant is similarly situated to a person convicted of possession for sale, the Rogers court articulated a rational basis for imposing a more stringent punishment on persons convicted of transporting without intending to sell: "[T]he Legislature was entitled to assume that the potential for harm to others is generally greater when narcotics are being transported from place to place, rather than merely held at one location. The Legislature may have concluded that the potential for increased traffic in narcotics justified more severe penalties for transportation than for mere possession or possession for sale, without regard to the particular purpose for which the transportation was provided, a matter often difficult or impossible to prove. Moreover, a more severe penalty for those who transport drugs may have been deemed appropriate to inhibit the frequency of their own personal use and to restrict their access to sources of supply, or to deter the use of drugs in vehicles in order to reduce traffic hazards and accidents, as well as to deter occurrences of sales or distributions to others. The relative privacy and increased mobility afforded by the automobile offers expanded opportunities for the personal use and acquisition of drugs; greater penalties may legitimately be imposed to curtail those opportunities." (Rogers, supra, 5 Cal.3d at pp. 136-137, fns. omitted.)
Defendant thus suffered no violation of his equal protection and due process rights.
During closing argument, defense counsel stated defendant would likely go to prison if found guilty of the firearm possession counts because he was a felon. After being admonished by the court for his inappropriate argument, defense counsel concluded by asking the jury to "protect [defendant] as you're required to protect him." The trial court instructed the jury to disregard counsel's arguments. The jury was told that their role was not to protect defendant but to decide the facts.
In an apparent attempt to lessen the impact of counsel's statement that defendant would go to prison and to cast doubt on the statement's veracity, the court stated it had offered defendant probation the previous day. It then ordered the jury not to consider punishment in any way. It ordered the jury to disregard what the court or the attorneys said about the evidence or the various personalities involved, and to decide the case solely on the evidence. It instructed the jury to reach its verdict without consideration of punishment.
Defendant claims the court's reference to an offer of probation constitutes judicial misconduct. He asserts the statement violated his right to a jury determination of his guilt or innocence, was an improper comment on matters not in evidence, and was an improper comment on settlement negotiations. He notes defense counsel failed to object to the court's statement, but claims any objection would have been futile, and the failure to object constituted ineffective assistance of counsel.
Assuming for purposes of argument only that the court erred in referencing probation, we conclude the error was harmless under any standard of reversible error. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Watson (1956) 46 Cal.2d 818, 836.) There is no reasonable doubt defendant would not have obtained a more favorable outcome had the court omitted its reference to probation. The evidence against defendant was overwhelming. He was traveling in the Sable when Detective Miller found the cocaine on defendant's person after defendant admitted he possessed narcotics. The detectives found a loaded, high-caliber revolver in defendant's car concealed directly underneath the seat on which defendant had been sitting before exiting the car. All of the elements of the crimes for which defendant was convicted were proven beyond doubt. The court's reference to probation would not have changed that.
In addition, the court fully admonished and ordered the jury not to consider any statements by it or counsel regarding penalty or punishment. It instructed the jury to reach its verdict without consideration of punishment. Under these circumstances, we conclude the assumed error committed by the court was harmless beyond a reasonable doubt.
Correction of Sentencing and Abstract of Judgment
Both defendant and the Attorney General ask us to order the trial court to correct the abstract of judgment. The abstract states the concurrent 16-month term was imposed on the possession count (count one) and sentencing was stayed on the felon in possession count (count four), when in fact the opposite is true. We order the trial court to make the necessary amendments. In addition, the Attorney General asks us to remand the case to the trial court for the limited purpose of ordering the court to revoke defendant's driver's license, a mandatory penalty under Vehicle Code section 13202, subdivision (b), for any person such as defendant who was convicted of violating Health and Safety Code section 11352. We do this as well.
The judgment is affirmed. The matter is remanded to the trial court solely to revoke defendant's driver's license pursuant to Vehicle Code section 13202, subdivision (b); to stay the sentence on count one, a violation of Health and Safety Code section 11350, subdivision (a); and to specify the sentence on count four, a violation of Penal Code section 12021, subdivision (a)(1), is a concurrent low term of 16 months. The trial court is ordered to prepare an amended abstract of judgment noting these changes and to forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: ROBIE , J. BUTZ , J.