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The People v. Yuriy Penkov

August 22, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
YURIY PENKOV, DEFENDANT AND APPELLANT.



(Super. Ct. No. 092555)

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

P. v. Penkov 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Yuriy Penkov was convicted by jury of possession and transportation of methamphetamine, possession of drug paraphernalia, and driving on a suspended license. Following a bifurcated hearing, the trial court found that defendant committed these crimes while out on bail for another felony offense. The trial court sentenced defendant to an aggregate term of six years in state prison (upper term of four years for transportation, plus a consecutive two-year term for the out-on-bail enhancement).

On appeal, in an attempt to bring himself within the provisions of the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36), defendant asserts several challenges to his conviction for driving on a suspended license, and then argues the trial court abused its discretion by failing to consider his request to dismiss or reduce this conviction to an infraction in order to sentence him in accordance with Proposition 36.

Aside from challenging this conviction, defendant asserts the trial court violated his constitutional rights by denying his motion to dismiss the transportation charge at the close of the People's case. He also claims the trial court violated his constitutional right to a unanimous verdict by failing to give the jury a unanimity instruction. Defendant further asserts the evidence was insufficient to support the out-on-bail enhancement. Finally, he claims the trial court prejudicially erred by failing to order an updated probation report after he was deemed unsuitable for the Civil Addict Program.

We disagree with each contention. However, because the trial court erred by imposing and executing the out-on-bail enhancement without proof that defendant had been convicted of the primary offense, we modify the judgment to stay execution of the enhancement and affirm the modified judgment.

FACTS

In May 2009, defendant was trimming hedges across the street from Arturo Camacho's house in West Sacramento. Camacho was an off-duty police officer with the West Sacramento Police Department. Defendant arrived at the job site alone in a green Dodge Ram owned by his father. He wore a white shirt, beige pants, black flip-flops, and a "military style, camouflaged, extreme cold weather hat."

Around 4:30 p.m., as defendant trimmed the hedges, his cousin Lyudmila Vlasenko stopped by for a visit. Defendant told Vlasenko he would talk to her when he finished working, so she waited for him in the front of the Dodge Ram. As defendant climbed a ladder, a stereo face plate case fell out of his pocket. Vlasenko opened the case and found a "glass object and a little bag with some substances." She and defendant argued about his "drug use." Vlasenko then placed the case inside a black leather bag inside the truck and left.

Around 5:15 p.m., Officer Camacho first noticed defendant across the street trimming the hedges. Officer Camacho saw defendant leave in the Dodge Ram at around 5:30 p.m. Defendant returned about five minutes later and continued his work on the hedges. Aside from defendant, "there was no one on the entire street." About five minutes later, at around 5:40 p.m., one of Officer Camacho's neighbors knocked on his door and told him that a man was offering to trim hedges. At this point, Officer Camacho went out to his front yard to speak with defendant, recognized him from "multiple encounters in the past," and knew that defendant was wanted on an outstanding felony warrant.

Around 6:10 p.m., Officer Camacho returned to his house and called Officer David Stallions concerning defendant's location. Police responded to the scene at about 6:15 p.m. and took defendant into custody. At the time of his arrest, defendant was the only person in the area.

Through the Dodge Ram's open window, one of the officers saw the black leather bag on the seat, which was open, and in which the officer could see "a small bullet." The truck was searched. Police found two bullets in the leather bag (one .32 caliber and one .38 caliber), another 9-mm bullet on the driver's side floor mat, and two shotgun shells in a hat in the rear of the cab. Police also found a glass pipe and a clear plastic bag containing .91 grams of methamphetamine in the stereo face plate case in the leather bag. The leather bag also contained two brass pipes.

At the time defendant drove his father's truck to the work site, and then briefly away from the location and back again, his license was suspended. The Department of Motor Vehicles (DMV) previously mailed a letter notifying defendant of the suspension to his most recent address. This letter was not returned to the DMV as either undeliverable or unclaimed.

DISCUSSION

I

Proposition 36

Because the bulk of defendant's appeal can be viewed as an attempt to bring himself within the provisions of Proposition 36, we begin with an overview of this alternative sentencing scheme.

"Proposition 36 mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance. Its provisions outline 'an alternative sentencing scheme' for persons convicted of certain drug offenses. [Citation.] 'In effect, it acts as an exception to the punishment' provided for certain offenses involving controlled substances. [Citation.]" (People v. Canty (2004) 32 Cal.4th 1266, 1275, quoting In re Varnell (2003) 30 Cal.4th 1132, 1136.)

Penal Code section 1210.1, subdivision (a),*fn1 provides in relevant part that, "except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program." Section 1210, subdivision (a), defines "nonviolent drug possession offense" to mean "the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term 'nonviolent drug possession offense' does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8."

Section 1210.1, subdivision (b)(2), excludes from mandatory probation and diversion into a drug treatment program "[a]ny defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." Section 1210, subdivision (d), defines "misdemeanor not related to the use of drugs" to mean "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in (1)."

Defendant's convictions for possession and transportation of methamphetamine for personal use qualify as nonviolent drug possession offenses under section 1210, subdivision (a), and his conviction for possession of narcotics paraphernalia is a misdemeanor related to the use of drugs. However, his conviction for driving on a suspended license is "completely unrelated to the possession or use of drugs." (People v. Orabuena (2004) 116 Cal.App.4th 84, 91 (Orabuena).) Because of this, defendant is excluded from the alternative sentencing scheme prescribed by Proposition 36.

In order to avoid this result, defendant asserts three challenges to his conviction for driving on a suspended license: (1) sufficiency of the evidence to support the conviction; (2) instructional error; and (3) ineffective assistance of counsel. He also contends the trial court abused its discretion at sentencing by failing to consider his request to dismiss or reduce this conviction to an infraction in order to sentence him in accordance with Proposition 36. We turn to these contentions now.

II

Sufficiency of the Evidence

Defendant asserts the evidence was insufficient to support his conviction for driving on a suspended license. We disagree.

"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077 (Wallace); Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) "'Where, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, "but our opinion that the circumstances also might reasonably be reconciled with a contrary finding" does not render the evidence insubstantial.' [Citation.]" (Wallace, supra, 44 Cal.4th at p. 1077; People v. Burney (2009) 47 Cal.4th 203, 253.)

Vehicle Code section 14601.1, subdivision (a), provides in relevant part that "[n]o person shall drive a motor vehicle when his or her driving privilege is suspended or revoked . . . if the person so driving has knowledge of the suspension or revocation. Knowledge shall be conclusively presumed if mailed notice has been given by the [DMV] to the person pursuant to [Vehicle Code] Section 13106. The presumption established by this subdivision is a presumption affecting the burden of proof."

Vehicle Code section 13106, subdivision (a), provides: "When the privilege of a person to operate a motor vehicle is suspended or revoked, the [DMV] shall notify the person by first-class mail, of the action taken and of the effective date thereof, except for those persons personally given notice by the [DMV] or a court, by a peace officer pursuant to [Vehicle Code] Section 13388 or 13382, or otherwise pursuant to this code. It shall be a rebuttable presumption, affecting the burden of proof, that a person has knowledge of the suspension or revocation if notice has been sent by first-class mail by the [DMV] pursuant to this section to the most recent address reported to the [DMV] pursuant to [Vehicle Code] Section 12800 or 14600, or any more recent address on file if reported by the person, a court, or a law enforcement agency, and the notice has not been returned to the [DMV] as undeliverable or unclaimed. It is the responsibility of every holder of a driver's license to report changes of address to the [DMV] pursuant to [Vehicle Code] Section 14600."

However, in People v. Roder (1983) 33 Cal.3d 491 (Roder), our Supreme Court declared unconstitutional a statutory mandatory rebuttable presumption of knowledge found in former section 496 (receiving stolen property) as that presumption lightened the People's burden of proving the defendant's knowledge beyond a reasonable doubt (id. at pp. 499-502); the court transformed the unconstitutional mandatory presumption into a permissive inference. (Id. at pp. 505-506.) In response to this, CALCRIM No. 2220 removes the mandatory presumption of knowledge contained in Vehicle Code section 14601.1, subdivision (a), and replaces it with a permissive inference, instructing the jury that they "may, but are not required to, conclude that [defendant] knew that his driving privilege was suspended" if the People proved that the DMV mailed a notice of suspension to his most recent address and the notice was not returned as undeliverable or unclaimed.

Defendant does not challenge the sufficiency of the evidence to support the jury's finding that he drove a vehicle while his driving privilege was suspended. Substantial direct evidence supports this finding. Instead, he asserts there was insufficient evidence to prove his knowledge of the suspension. We are not persuaded. While there was no direct evidence that defendant knew his license was suspended, "[k]nowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise." (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.)

Here, the People established, through the testimony of DMV manager Kimberly Kemper, that the DMV mailed a letter to defendant notifying him of the license suspension. This letter was mailed to his most recent address and was not returned as undeliverable or unclaimed. While defendant correctly points out that a reasonable inference may not be based on suspicion alone, we disagree that the jury was required "to guess that the letter sent by DMV was properly mailed, surmise that it was properly delivered, speculate that [defendant] received it, imagine that he opened it, and suppose that he read it." The Legislature has concluded that the circumstantial evidence presented in this case supports a mandatory presumption of knowledge. (Veh. Code, §§ 14601.1, 13106.) And while this mandatory presumption may be unconstitutional (see Roder, supra, 33 Cal.3d at pp. 499-502), we conclude that such evidence reasonably supports an inference defendant knew of the suspension.

Nor are we persuaded that such an inference is defeated by the fact that Kemper did not state in her testimony that the notice of suspension was mailed "first-class." Defendant is correct that Vehicle Code section 13106 requires the notice of suspension to be sent by "first-class mail." However, in order for correspondence to be sent by first-class mail, all that is required is the placement of the letter, along with a stamp or metered postage, in the United States mail. (Mailing Standards of the United States Postal Service, 130, First-Class Mail http://pe.usps.com/framepdf.asp?Dest=dmmtoc.pdf [as of Aug. 8, 2011].) Here, a "Certificate of Mailing" was attached to the notice of suspension declaring under penalty of perjury that the notice was "deposited in the United States mail" and "addressed to [defendant]." This was enough to establish that the notice was sent by first-class mail.

Substantial evidence supports defendant's conviction for driving on a suspended license.

III

Instructional Error

As an alternative ground for reversing his conviction for driving on a suspended license, defendant contends the trial court violated his constitutional right to due process by instructing the jury with CALCRIM No. 2220. He did not object to this instruction at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under ...


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