IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
February 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ARTURO EUGENE BENT, DEFENDANT AND APPELLANT.
(Super. Ct. No. NCR77407)
The opinion of the court was delivered by: Nicholson , J.
P. v. Bent 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In a trial to the court following his waiver of jury trial, defendant Arturo Eugene Bent was convicted of three counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a); counts I-III) and a count of maintaining a place for the sale of methamphetamine (Health & Saf. Code, § 11366; count IV). The court found that defendant had suffered four prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (c)) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).*fn1 Defendant was sentenced to state prison for 17 years eight months, consisting of three years on count I, one year each on counts II and III, eight months on count IV, and 12 years for the prior narcotics convictions. The two prison term enhancements were stricken under section 1385. Defendant was awarded 266 days' custody credit and 266 days' conduct credit consistent with the 2010 amendment of section 2933. (Former § 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
On appeal, defendant contends the eight-month state prison term on count IV must be stayed pursuant to section 654. He argues count IV did not have a criminal objective separate from the three counts of selling methamphetamine. We affirm the judgment.
On three occasions informant Walter Nadeau, working with officers from the Tehama County drug task force, purchased useable quantities of methamphetamine from defendant at his residence in Gerber. Nadeau previously had given defendant a ride home, and defendant had told Nadeau to come by, day or night, any time Nadeau "wanted anything."
On March 4, 2009, Nadeau purchased methamphetamine from defendant at his residence. Defendant had the methamphetamine in his pocket. The drug was packaged in a plastic bag. A woman was present at the house during the buy.
On March 11, 2009, Nadeau again purchased methamphetamine from defendant at his residence. This time, defendant retrieved the drug from a plate under his bed and from other areas around the house, including a shed on his property. A different woman was present during this buy. Defendant packaged the drugs in a paper bindle and handed it to Nadeau.
After receiving the bindle, Nadeau arranged to make a third purchase. Defendant asked Nadeau to give him a ride to his source of the drugs. Nadeau answered that he could not give defendant a ride and said he would return in about 25 minutes to make the third purchase. Nadeau departed, returned to defendant's house a half hour to 45 minutes later, and purchased more methamphetamine from defendant. Defendant removed the drugs, packaged in a paper bindle, from his sock or shoe. When defendant handed Nadeau the drugs, Nadeau perceived that the quantity was short of the agreed amount.
Between the purchases on March 4 and 11, 2009, Nadeau had returned to defendant's residence on one or two occasions but defendant had not been home. Nadeau was at defendant's residence about 30 to 45 minutes during the first buy, 14 minutes during the second buy, and two minutes during the third buy.
Defendant testified that Nadeau had used drugs with him and then asked defendant to "hook him up" with some drugs. One of the women in the house had offered Nadeau some drugs, but Nadeau wanted to buy drugs only from defendant. Defendant admitted that he had sold Nadeau a "twenty," but denied that he had repeatedly sold to Nadeau. Defendant testified that on his second visit to the house, Nadeau left without getting any drugs. On his third visit, Nadeau obtained drugs from someone else who was at the house.
Defendant contends the trial court erred by failing to stay, pursuant to section 654, his state prison sentence on count IV, maintaining a place for the sale of methamphetamine (Health & Saf. Code, § 11366). Defendant argues he did not have a criminal objective separate from his three convictions for selling methamphetamine. We are not persuaded.
At sentencing, the trial court found that count IV should be punished separately stating, "clearly the law is, I believe, wishing to have people stop selling from their house or making a place available to sell from their house. He could have sold anywhere."
"Section 654, subdivision (a) provides in part: '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.' '[S]section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.] Whether offenses are 'indivisible' for these purposes is determined by the 'defendant's intent and objective, not the temporal proximity of his offenses.' [Citation.] 'If [a] defendant harbored "multiple criminal objectives," which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct."' [Citation.] The application of section 654, thus, 'turns on the defendant's objective in violating' multiple statutory provisions. [Citation.] Where the commission of one offense is merely '"a means toward the objective of the commission of the other,"' section 654 prohibits separate punishments for the two offenses. [Citation.] [¶] We apply a substantial evidence standard of review. '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.' [Citations.] '[T]he law gives the trial court broad latitude in making this determination.' [Citation.]" (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215, original italics; see People v. Britt (2004) 32 Cal.4th 944, 952; People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Coleman (1989) 48 Cal.3d 112, 162.)
When reviewing a judgment for substantial evidence, an appellate court must "presume every fact the [trier] could reasonably have deduced from the evidence." (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
Defendant was charged in counts I through III with selling methamphetamine on March 4 and March 11, 2009. On appeal, it is undisputed that defendant's intent and objective with respect to those counts was to sell bags or bindles of methamphetamine to Nadeau on those specific occasions.
Defendant was charged in count IV with maintaining a place for selling or using methamphetamine on or between March 4 and March 11, 2009. Health and Safety Code section 11366 provides in relevant part: "Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any [specified] controlled substance . . . shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison." "A conviction of this offense requires proof of 'opening' or 'maintaining' a place for a purpose proscribed by the statute. [Citation.]" (People v. Ferrando (2004) 115 Cal.App.4th 917, 920.)
In ruling that count IV should be punished separately because Health and Safety Code section 11366 was intended "to have people stop selling from their house or making a place available to sell from their house," the trial court impliedly found that defendant was maintaining his house with the requisite intent of providing a location for the sale of methamphetamine.
The trial court could deduce that this objective was separate from that of selling the three particular bags or bindles to Nadeau. Defendant had told Nadeau to come by, day or night, any time Nadeau "wanted anything." Thereafter, defendant never did anything to give Nadeau the impression that they should meet at any other location.
On one or two ensuing occasions, Nadeau went to defendant's residence and discovered that he was not there. However, defendant never suggested that Nadeau had visited at inappropriate times, and he did nothing to discourage Nadeau from attempting future visits to the house at similar times, thus reinforcing his earlier suggestion that methamphetamine would be available whenever Nadeau "wanted anything."
On the next occasion, Nadeau found defendant at home, and defendant obtained methamphetamine from various locations inside the house and from a shed on the property. The trial court could deduce that, by scattering the drug throughout the house, defendant had devoted a substantial portion of his residence to methamphetamine sales and intended to engage in more sales activity than just three transactions with a single individual.
The Attorney General claims the present case is analogous to People v. Moseley (2008) 164 Cal.App.4th 1598, in which the Fifth District reasoned: "[The defendant's] possession of the nine bags of methamphetamine for the purpose of sale was comparable to a store owner's possession of his or her current inventory. The owner's objective in possessing it is to sell it. The owner's objective in maintaining the store, however, is different from and independent of this intent. He or she intends to provide a place for selling his or her future inventory on an ongoing basis, regardless of whether the current inventory is ever sold or not. The evidence showed that [the defendant] maintained the apartment with the intent of continuously providing a location for meeting as many as four or five buyers a day and selling methamphetamine to them. This was independent of the objective of selling the nine particular bags in his possession on the day of his arrest. Therefore, we conclude that section 654 did not require the court to stay the sentence for either offense. [Citations.]" (Id. at p. 1604.)
Defendant counters that Moseley is distinguishable because the defendant there was meeting four or five buyers per day and selling methamphetamine to each of them. (People v. Moseley, supra, 164 Cal.App.4th at p. 1604.) Here, in contrast, the evidence shows no sales to anyone other than the three to informant Nadeau.
However, the section 654 issue is not the quantity of drugs sold or the number of willing purchasers; rather, it is defendant's intent in maintaining the house where the sales, such as they were, occurred. The fact the Moseley operation may have been more substantial, and more successful, than defendant's does not compel an inference that defendant did not intend to maintain a sales operation at his residence. As noted, the appellate court must presume in support of the judgment every fact the trier reasonably could have deduced from the evidence. (People v. Boyer, supra, 38 Cal.4th at pp. 479-480.) Because the trial court reasonably could have deduced that defendant intended to maintain his house for methamphetamine sales, even though his operation was far less extensive than the one in Moseley, that deduction is binding upon us on appeal. The trial court properly declined to stay count IV pursuant to section 654.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. MAURO , J.