Filed 11/12/15 P. v. Morales CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066337
Plaintiff and Respondent,
v. (Super. Ct. No. SCD251686)
NESTOR MORALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kathleen M. Lewis, Judge. Affirmed.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Erica A. Swenson and
Barry J. Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Nestor Morales appeals from a judgment of conviction after jury
trial. Morales argues that (1) the trial court's permitting a police officer to testify as to
the contents of a recording of a conversation between Morales and another man, in
Spanish, while they were in the back of a patrol car after their arrest, violated the best
evidence rule and that the recording itself should have been played for the jury, with
an interpreter translating; (2) his conviction on count 2, possession for sale of a
controlled substance (Health & Saf. Code, § 11378),1 must be reversed because, he
contends, it is a necessarily lesser included offense of count 1, which charged the sale
of the same controlled substance (§ 11379, subd. (a)); and (3) pursuant to Proposition
47, he is entitled to have this court vacate his sentence and resentence him to a
misdemeanor term for his conviction for violating section 11377.
We reject Morales's contentions and affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
At approximately 5:30 p.m. on October 16, 2013, San Diego Police Detective
John Queen was pretending to be an amputee and was being pushed in a wheelchair by
another officer through the downtown area. Queen was assigned to the Central
1 Further statutory references are to the Health and Safety Code unless otherwise
specified.
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Division Command Enforcement Team, and was on an undercover operation searching
for drug dealers. Queen was carrying cash that he had obtained at the station to use to
purchase drugs. He had given other officers in the operation photocopies of the bills
he was carrying.
Queen saw Jose Pina and another man on the street. Queen asked them if they
knew "anybody that's got it." Queen believed that the men understood him to be
asking whether they knew anyone who had drugs to sell. Pina asked Queen what he
was looking for, and Queen said he wanted " 'black,' " meaning tar heroin. Pina told
Queen that he did not know where to get what Queen was asking for, but that his
"homeboy" could get some " 'cris,' " which was "[s]treet slang for crystal
methamphetamine." Queen replied that he would be interested in buying $60 worth of
that drug.
Pina left Queen and spoke with other people who were nearby. When he
returned to Queen, Pina said that his "homeboy" was located at 500 C Street. Pina ran
toward that location, while Queen, pushed by his attendant, followed behind at a
slower pace. Queen eventually caught up with Pina at the intersection of 6th Avenue
and C Street. Pina informed Queen that he could not find his "homeboy." Queen
offered to let Pina use Queen's cellular telephone. Pina gave Queen a number, which
Queen dialed. Pina then used the telephone to speak with someone; Pina told the
person on the other end of the telephone that he, Pina, had "60" and wanted to meet up.
After hanging up, Pina told Queen that his "homeboy" was at the new central library.
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After the men began to head toward the library, Queen asked Pina if he could
call his "homeboy" back and ask to meet somewhere between their location and his
location. Pina called the same number back and Queen heard him mention City
College. After Pina hung up, he told Queen that they would be meeting his
"homeboy" at the City College trolley station.
The three men then headed toward that trolley station. Queen agreed that he
would pay Pina $10 for facilitating the drug purchase.
When the men arrived at the trolley station, Pina used Queen's cellular
telephone to speak with his "homeboy" again. Pina, Queen, and Queen's attendant
moved south on Park Boulevard. As they arrived at E Street, Pina pointed to Morales
and said, "There he is."
Queen gave Pina three recorded $20 bills. Morales approached Pina and spoke
with him. The group moved north to a Subway sandwich shop near the trolley station.
Pina told Queen that Morales had to go into the restroom in the Subway sandwich
shop to get the drugs.
Morales went into the Subway restroom and exited quickly. Queen observed
Morales do a quick hand-to-hand exchange with Pina. Pina then approached Queen
and handed him a bindle of methamphetamine. Queen handed Pina $10.
After this exchange, Queen gave his fellow officers a "bust signal" as he left the
area. Uniformed officers moved in and arrested Morales and Pina. The officer who
arrested Morales found him sitting in a chair in front of the Subway, holding the three
$20 bills that Queen had given to Pina. Morales was found with a small baggie of
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methamphetamine in his pocket, and a shoulder bag that contained four empty baggies
and an electronic scale. The officer believed that Morales had disposed of another
bindle of methamphetamine on the ground under his chair before being contacted by
police. Morales had a cellular telephone in his possession, as well. The history log of
the telephone included calls placed from Queen's cellular telephone.
Officers placed Morales and Pina in the same patrol car, which was equipped
with an audio recorder. The two men conversed in Spanish, and their conversation
was recorded.
B. Procedural background
A jury convicted Morales of one count of sale, transportation or furnishing of
methamphetamine (§ 11379, subd. (a); count 1); one count of possession for sale of
methamphetamine (§ 11378; count 2); and one count of possession of
methamphetamine (§ 11377, subd. (a); count 3). Morales admitted having suffered a
strike prior, a prison prior, and a prior drug conviction.
The trial court sentenced Morales to an aggregate term of seven years in prison.
Morales filed a timely notice of appeal.
III.
DISCUSSION
A. Even if we assume that the trial court erred in admitting Officer Sanchez's oral
summary of the recorded conversation from the back seat of a patrol car, any
error was harmless
Morales contends that the trial court erred in allowing the prosecution to present
Officer Jesus Sanchez's testimony regarding the contents of an audio recording of the
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conversation between Morales and Pina while they were being held in the back of a
patrol car.
After Morales and Pina were arrested, they were placed together in the back of
a patrol car that was equipped with an audio recording device. While in the patrol car,
the two men engaged in a conversation in Spanish. The recording was given to
Detective Queen, who asked Officer Sanchez, a Spanish speaker, to listen to it.
At trial, the prosecution called Officer Sanchez to testify regarding the
conversation that Morales and Pina had in the back of the patrol car. Sanchez testified
that Morales and Pina were talking about the money that had been given to them.
According to Sanchez, Morales asked Pina whether the money had been marked.
Morales told Pina that officers had found "two drops" of methamphetamine on him,
but that he did not think that officers had seen Pina hand him any money. During the
prosecutor's examination of Sanchez, Morales, who was representing himself, objected
that the actual recording of the conversation was "not here." When the court asked for
Morales's legal grounds for his objection, Morales replied that the recording was
"irrelevant." The court overruled Morales's objection.
Morales cross-examined Sanchez about the recording, questioning him
regarding whether he was able to distinguish between the two speakers while listening
to the recording. Sanchez stated that the voices on the recording were "distinct."
On redirect, Sanchez testified that the recording still existed, and that both
parties had a copy.
6
On appeal, Morales argues that the prosecutor should not have been permitted
to question Sanchez regarding the content of the recorded conversation. He contends
that the audio recording constitutes a "writing" within the meaning of Evidence Code
section 250, and that pursuant to Evidence Code section 1523, subdivision (a),
"[e]xcept as otherwise provided by statute, oral testimony is not admissible to prove
the content of a writing."2
Under the secondary evidence rule,3 the content of a writing may be proved
either "by an otherwise admissible original" (Evid. Code, § 1520) or by "otherwise
admissible secondary evidence" (§ 1521, subd. (a); see People v. Skiles (2011) 51
Cal.4th 1178, 1187). Although subdivision (a) of Evidence Code section 1523
provides generally that oral testimony is not admissible to prove the content of a
writing, there are a number of exceptions (see Evid. Code, § 1523, subds. (b)-(d)).
The People contend that Officer Sanchez's testimony was admissible to describe the
conversation on the audio recording pursuant to at least one of these exceptions.
We need not decide whether the trial court erred in permitting the prosecutor to
elicit Sanchez's testimony about the content of the audio recording because we
conclude that it is not reasonably probable that the exclusion of Officer Sanchez's
2 The People do not dispute that the audio recording at issue here is considered to
be a "writing" for purposes of the applicable provisions of the Evidence Code.
3 "The so-called best evidence rule was codified as Evidence Code former section
1500 et seq. Effective January 1, 1999, it was renumbered and retitled, and is now
called the secondary evidence rule. (See Evid. Code, § 1520 et seq.)" (People v.
Lucas (2014) 60 Cal.4th 153, 264, fn. 42.)
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testimony regarding the conversation at issue would have resulted in a different
outcome for Morales.
We review the erroneous admission of evidence under the harmless error
standard announced in People v. Watson (1956) 46 Cal.2d 818. (See, e.g., People v.
Chism (2014) 58 Cal.4th 1266, 1298.) Under this standard, we do not reverse unless it
is reasonably probable that there would have been a different result absent the court's
error. (People v. Watson, supra, at pp. 834-838.)
There was abundant evidence establishing Morales's guilt, apart from the
evidence of the recorded conversation between Morales and Pina. The prosecution
presented uncontradicted evidence that Detective Queen told Pina that he wanted to
buy methamphetamine. Pina arranged a rendezvous between Queen, Pina and
Morales. Queen gave Pina three identifiable $20 bills. Officers watched Pina and
Morales exchange something. Immediately after this exchange, Pina handed Queen
$60 worth of methamphetamine. A few minutes later, Morales was found holding the
three $20 bills that Queen had given to Pina. In addition, when officers arrested
Morales, he had more methamphetamine, packaging material, and an electronic scale
in his possession.
Given all of this evidence, the recording of a discussion between Pina and
Morales that occurred after both were placed in a patrol car added little, if anything, to
the weight of the evidence against Morales. In fact, the recording was so insignificant
that the prosecutor did not even mention the recorded conversation during her closing
argument. The only time that the prosecutor brought up the recorded conversation in
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closing was when she responded to Morales's comments about the recording during
her rebuttal argument, and then she argued only that the conversation corroborated the
other evidence that had been presented at trial.
In view of the evidence presented at trial, there is no reasonable probability that
if the trial court had precluded Sanchez from describing the recorded conversation, or
if the trial court had required the prosecutor to play the recording for the jury (with a
court interpreter to translate the conversation), the jury would have reached a different
result. We therefore decline to reverse Morales's convictions on this ground.
B. The offense of possession for sale is not a lesser included offense of the offense
of selling, transporting or furnishing drugs under the relevant legal authority;
Morales may properly be convicted of both offenses
Morales contends that his conviction for possession for sale, based on a
violation of section 11378,4 is a necessarily included lesser offense to his conviction
4 At the time of Morales's offense, section 11378 provided:
"Except as otherwise provided in Article 7 (commencing with
Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who possesses for sale any
controlled substance which is (1) classified in Schedule III, IV, or
V and which is not a narcotic drug, except subdivision (g) of
Section 11056, (2) specified in subdivision (d) of Section 11054,
except paragraphs (13), (14), (15), (20), (21), (22), and (23) of
subdivision (d), (3) specified in paragraph (11) of subdivision (c)
of Section 11056, (4) specified in paragraph (2) or (3) of
subdivision (f) of Section 11054, or (5) specified in subdivision
(d), (e), or (f), except paragraph (3) of subdivision (e) and
subparagraphs (A) and (B) of paragraph (2) of subdivision (f), of
Section 11055, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code." (Stats. 2011,
ch. 15, § 172, eff. April 4, 2011, operative Oct. 1, 2011.)
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for the sale of methamphetamine, based on a violation of section 11379.5 Morales
asserts that even though one may violate section 11379 in a number of ways (i.e., by
transporting, importing into the state, selling, furnishing, administering, giving away,
or offering or attempting to do any of those things), the statute "should be treated as
setting out a series of discrete offenses, with the statutory elements test applied to the
version charged" in the charging document.
5 At the time of Morales's offense, section 11379 provided:
"(a) Except as otherwise provided in subdivision (b) and in
Article 7 (commencing with Section 4211) of Chapter 9 of
Division 2 of the Business and Professions Code, every person
who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this
state, sell, furnish, administer, or give away, or attempts to import
into this state or transport any controlled substance which is (1)
classified in Schedule III, IV, or V and which is not a narcotic
drug, except subdivision (g) of Section 11056, (2) specified in
subdivision (d) of Section 11054, except paragraphs (13), (14),
(15), (20), (21), (22), and (23) of subdivision (d), (3) specified in
paragraph (11) of subdivision (c) of Section 11056, (4) specified
in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5)
specified in subdivision (d) or (e), except paragraph (3) of
subdivision (e), or specified in subparagraph (A) of paragraph (1)
of subdivision (f), of Section 11055, unless upon the prescription
of a physician, dentist, podiatrist, or veterinarian, licensed to
practice in this state, shall be punished by imprisonment pursuant
to subdivision (h) of Section 1170 of the Penal Code for a period
of two, three, or four years.
"(b) Notwithstanding the penalty provisions of subdivision (a),
any person who transports for sale any controlled substances
specified in subdivision (a) within this state from one county to
another noncontiguous county shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for
three, six, or nine years." (Stats. 2011, ch. 15, § 174, eff. April 4,
2011, operative Oct. 1, 2011.)
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"In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. 'In California, a single act
or course of conduct by a defendant can lead to convictions "of any number of the
offenses charged." ' " (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 (Reed).)
"Section 954 generally permits multiple conviction. Section 654 is its counterpart
concerning punishment. It prohibits multiple punishment for the same 'act or
omission.' When section 954 permits multiple conviction, but section 654 prohibits
multiple punishment, the trial court must stay execution of sentence on the convictions
for which multiple punishment is prohibited." (Reed, supra, at p. 1227.)
"A judicially created exception to the general rule permitting multiple
conviction 'prohibits multiple convictions based on necessarily included offenses.'
[Citation.] '[I]f a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the former.' " (Reed, supra,
38 Cal.4th at p. 1227.)
The question whether one offense is necessarily included in another arises in
various contexts, including the situation in this case, i.e., multiple convictions on
charged crimes, as well as another common situation, involving the question whether a
defendant charged with one crime may be convicted of a lesser uncharged crime.
(Reed, supra, 38 Cal.4th at p. 1227.) In the latter situation, courts "have applied two
tests in determining whether an uncharged offense is necessarily included within a
charged offense: the 'elements' test and the 'accusatory pleading' test." (Ibid.) "Under
the elements test, if the statutory elements of the greater offense include all of the
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statutory elements of the lesser offense, the latter is necessarily included in the former.
Under the accusatory pleading test, if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense, the latter is necessarily
included in the former." (Id. at pp. 1227-1228.)
In Reed, the Supreme Court concluded that for purposes of determining whether
a defendant may stand convicted of two charged offenses, a court is to consider only
the statutory elements of the two relevant offenses, and should not consider the
charging document, in determining whether one offense is necessarily included in the
other. The Reed court explained:
"As we noted in People v. Montoya [(2004)], 33 Cal.4th [1031,]
1035, the Court of Appeal decisions that specifically consider this
question have concluded that the accusatory pleading test does not
apply in deciding whether multiple conviction of charged offenses
is proper. [Citations.] Now that the question is squarely
presented, we agree. In deciding whether multiple conviction is
proper, a court should consider only the statutory elements. Or, as
formulated in Scheidt, 'only a statutorily lesser included offense is
subject to the bar against multiple convictions in the same
proceeding. An offense that may be a lesser included offense
because of the specific nature of the accusatory pleading is not
subject to the same bar.' (People v. Scheidt [(1991) 231
Cal.App.3d 162,] 165-166.)" (Reed, supra, 38 Cal.4th at p. 1229,
italics added.)
Morales contends that the Reed court did not consider what he terms a
"divisible offense," i.e., an offense that may be committed by engaging in any one of
multiple specifically enumerated alternative acts. Section 11379 is one of these
"divisible offenses" because one may violate it in a number of different ways.
According to Morales, a court should be permitted to treat "divisible statutes as a
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series of alternative [independent] offenses, each separately subject to the statutory
elements test," because such a rule "would not lead to the absurd results that concerned
the High Court in Reed."
Morales's proposal would create a hybrid rule in which the statutory elements
are applied to the particular alternative act that forms the basis of the charge against
the defendant. Such a rule would necessarily require a court to consider the accusatory
pleading to determine which of the alternative acts the defendant is accused of
committing. Under Reed, however, we are to look solely to the elements of the two
statutes at issue, and not to the particular accusatory pleading in a case, to determine
whether the defendant may be properly convicted of both charged crimes. Reed leaves
no room for the hybrid test that Morales proposes, since such a test is, in effect, an
accusatory pleading test.
As Morales implicitly acknowledges by arguing in favor of the use of a
"hybrid" test in this situation rather than the required statutory elements test, Morales's
convictions on counts 1 and 2 would both stand under a faithful application of the
statutory elements test. The offense defined in section 11378, which makes it
unlawful to "possess[] for sale a controlled substance" is not a necessarily included
offense of the offense defined in section 11379, subdivision (a), which makes it
unlawful to "transport[], import[] into this state, sell[], furnish[], administer[], or give[]
away, or offer[] to transport, import into this state, sell, furnish, administer, or give
away, or attempt[] to import into this state or transport any controlled substance[.]"
Although possession of a controlled substance is often a circumstance that exists when
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one transports a controlled substance or offers to transport, import, sell, furnish,
administer, or give away a controlled substance, possession is not necessarily required
to do any of these things. For example, one may violate section 11379 by transporting
drugs, without necessarily committing the offense of possession under section 11378,
since one may be liable for transporting by aiding and abetting a transporter, without
being in either actual or constructive possession of the drugs. We therefore conclude
that section 11378 is not a lesser included offense of section 11379. Morales may
stand convicted on both counts 1 and 2.
C. Morales must file a petition for recall of his sentences after judgment is final
Morales contends that he is entitled to automatic, nondiscretionary resentencing
under Proposition 47 with respect to his conviction for possession of a controlled
substance under section 11377. Morales asserts that this court should reduce his
conviction on that count to a misdemeanor.
"On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act . . . . (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff.
Nov. 5, 2014.)." (People v. Delapena (2015) 238 Cal.App.4th 1414, 1421
(Delapena).) In part, Proposition 47 reclassified certain felony drug and theft related
offenses as misdemeanors, and enacted a new statutory provision whereby an
individual already serving a felony sentence for the reclassified offenses may petition
for a recall of his or her sentence. (Delapena, supra, at pp. 1421-1422, citing Pen.
Code, § 1170.18, subd. (a).)
14
As established by Proposition 47, Penal Code section 1170.18 provides the
statutory remedy for "[a] person currently serving a sentence for a conviction, whether
by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor
under the act that added this section ('this act') had this act been in effect at the time of
the offense." (Pen. Code, § 1170.18, subd. (a).) Under this provision, such a person
"may petition for a recall of sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing in accordance with Sections
11350, 11357, or 11377 of the Health and Safety Code, . . . as those sections have been
amended or added by this act." (Pen. Code, § 1170.18, subd. (a).)
According to Morales, because the judgment in his case was not final at the
time Proposition 47 became effective, he is entitled to have this court reduce his
conviction to a misdemeanor under amended section 11377, and he need not utilize the
resentencing procedure established in Penal Code section 1170.18.6 We disagree.
The court in Delapena, supra, 238 Cal.App.4th at pages 1426-1429, recently
concluded that Proposition 47 does not operate retrospectively to entitle a defendant
such as Morales—a defendant who has been sentenced but whose judgment is not
final—to automatic resentencing on an appeal from the judgment. We adopt the
reasoning of Delapena, and agree with the Delapena court's conclusion that the
6 Morales filed a request for judicial notice in which he asks this court to
judicially notice two items related to the legislative history of Proposition 47: (1) a
document entitled "Senate Floor Concurrence AB 721," and (2) the official text of
Proposition 47, as passed by the voters on November 4, 2014. We grant Morales's
request for judicial notice.
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language of Proposition 47 indicates that it was intended to apply prospectively, not
retroactively. Morales is thus not entitled to have this court automatically reduce his
conviction under section 11377 to a misdemeanor. Rather, Morales must utilize the
procedure specified in Penal Code section 1170.18, which requires that he file a
petition for recall of sentence in the trial court after the judgment in this case becomes
final. (See Delapena, supra, at p. 1429.)
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, Acting P. J.
WE CONCUR:
IRION, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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