Filed 1/6/14 P. v. Murguia CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E055598

v.                                                                        (Super.Ct.No. RIF10000348)

GREGORIO MURGUIA,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.

Affirmed as modified.

         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Sean M.

Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury found defendant and appellant Gregorio Murguia, guilty of possessing

marijuana in prison (Pen. Code, § 4573.6)1 and possessing marijuana for sale (Health &

Saf. Code, § 11359). The trial court found true the allegations defendant suffered (1) a

prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)),

and (2) a prior conviction for which he served a prison term (Pen Code, § 667.5, subd.

(b)). The trial court sentenced defendant to prison for a term of eight years, four

months.

       Defendant raises three issues on appeal. First, defendant asserts the trial court

erred by allowing the prosecution to present evidence of defendant’s uncharged criminal

conduct. (Evid. Code, § 1101, subd. (b).) Second, defendant asserts the trial court

should have applied Penal Code section 654 when sentencing defendant for the two

offenses. Third, defendant contends the trial court may have misunderstood its

discretionary authority at the sentencing hearing, and therefore the matter should be

remanded for resentencing. We affirm the judgment. We stay defendant’s sentence for

possessing marijuana for sale (Pen. Code, § 654), but otherwise affirm the judgment

                     FACTUAL AND PROCEDURAL HISTORY

       Defendant was incarcerated at the California Rehabilitation Center in Norco.

Defendant resided in a dormitory that consisted of 50 bunk beds, 100 beds in total, in an

open space—without individual cells. On October 4, 2009, Correctional Officer

Moeller was searching the dormitory when he noticed defendant “fumbling” with his


       1   All subsequent statutory references will be to the Penal Code unless indicated.


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sleeve. Moeller searched defendant and found a cellular telephone in the sleeve of

defendant’s sweatshirt.

       Moeller searched defendant’s locker. Inside the locker, Moeller found 12 bindles

of marijuana. The bindles had a combined total weight of 3.3 grams, without

packaging. Correctional Officer Vega opined the bindles could be worth $40 to $50

each in prison. Vega believed that an inmate who possesses individually wrapped

portions of a drug in a concealed location and also possesses a cellular telephone is

involved in selling the drug.

       On June 20, 2003, City of Huntington Park Police Sergeant Chacon saw

defendant riding a bicycle in an area known for narcotics sales. Chacon searched

defendant and found seven bindles of marijuana. Chacon believed defendant possessed

the seven bindles for the purpose of selling them, based upon the portioned packaging

of the drug.

                                     DISCUSSION

       A.      PRIOR OFFENSE EVIDENCE

               1.    PROCEDURAL HISTORY

       During motions in limine, the prosecutor moved to introduce evidence that

defendant had previously been “found by officers walking down the street with a loaded

weapon, with 13 baggies of methamphetamine, one baggy with three rocks of cocaine

and seven baggies of marijuana.” Specifically, the prosecutor wanted to present

evidence that defendant possessed the seven baggies of marijuana and testimony that an

officer believed defendant possessed the marijuana for sale. (Evid. Code, § 1101, subd.


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(b).) The prosecutor asserted the evidence was relevant to show defendant’s

“knowledge and . . . intent,” specifically, that defendant intended to sell the marijuana

he possessed in prison. The prosecutor argued any prejudicial effect did “not exist,”

because it was “the same conduct, the same drug” as charged in the current case.

       The trial court found the prior offense evidence was relevant to proving an intent

to sell, but concluded mentioning the methamphetamine or rock cocaine would be too

prejudicial. Defendant’s trial counsel asserted the evidence concerning the prior

marijuana possession would also be prejudicial because the primary issue at the current

trial would be whether defendant possessed the marijuana, in particular, whether

defendant knew the marijuana was in his locker. Further, defendant’s trial counsel

argued the prosecution was trying use the prior offense evidence purely to prove

defendant’s propensity to commit the charged crimes, e.g., to show defendant “was a

drug dealer on the street, so he’s a drug dealer in prison.”

       The trial court ruled the prior offense evidence could be presented to the jury, but

there could be no mention of possible gang affiliation, weapon possession,

methamphetamine, or cocaine. The trial court believed defendant’s prior possession of

seven baggies of marijuana “adds to the issue of whether or not he intended it for sale.”

              2.     ANALYSIS

       Defendant contends the trial court erred by allowing the prosecutor to present

evidence of defendant’s prior offense. (Evid. Code, § 1101, subd. (b).) We disagree.




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       “‘Evidence that a defendant has committed crimes other than those currently

charged is not admissible to prove that the defendant is a person of bad character or has

a criminal disposition; but evidence of uncharged crimes is admissible to prove, among

other things, the identity of the perpetrator of the charged crimes, the existence of a

common design or plan, or the intent with which the perpetrator acted in the

commission of the charged crimes. [Citation.] Evidence of uncharged crimes is

admissible to prove identity, common design or plan, or intent only if the charged and

uncharged crimes are sufficiently similar to support a rational inference of identity,

common design or plan, or intent. [Citation.]’ [Citation.]” (People v. Foster (2010) 50

Cal.4th 1301, 1328.)

       “‘The least degree of similarity (between the uncharged act and the charged

offense) is required in order to prove intent. [Citation.] . . . In order to be admissible to

prove intent, the uncharged conduct must be sufficiently similar to support the inference

that the defendant “‘probably harbor[ed] the same intent in each instance.’ [Citations.]”

[Citation.]’ [Citation.]” (People v. Foster, supra, 50 Cal.4th at p. 1328.)

       “If evidence of prior conduct is sufficiently similar to the charged crimes to be

relevant to prove the defendant’s intent . . . , the trial court then must consider whether

the probative value of the evidence ‘is “substantially outweighed by the probability that

its admission [would] . . . create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.” [Citation.]’ [Citation.] ‘Rulings made under

[Evidence Code sections 1101 and 352] are reviewed for an abuse of discretion.

[Citation.]’ [Citation.] ‘Under the abuse of discretion standard, “a trial court’s ruling


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will not be disturbed, and reversal . . . is not required, unless the trial court exercised its

discretion in an arbitrary, capricious, or patently absurd manner that resulted in a

manifest miscarriage of justice.” [Citation.]’ [Citation.]” (People v. Foster, supra, 50

Cal.4th at pp. 1328-1329.)

       The charged and uncharged crimes are similar because they both involve

defendant possessing multiple bindles of marijuana, which law enforcement officers

opined were possessed for purposes of sale. The crimes involved the same drug and the

same offense—possession for sale. Thus, the trial court could reasonably conclude the

charged and uncharged crimes were similar.

       As to probative value, the uncharged offense was relevant to proving the charged

crime of possessing marijuana for sale (Health & Saf. Code, § 11359), because the

elements of the charged offense include (1) defendant had the intent to sell the drug, and

(2) defendant had knowledge of the drug’s presence and illegal character. (People v.

Harris (2000) 83 Cal.App.4th 371, 374.) Defendant’s past offense was relevant to

showing defendant possessed the marijuana to sell, as opposed to possessing it merely

for his own consumption. The past offense also helped to prove defendant knew of the

drug’s illegal character. Accordingly, the court could reasonably conclude the prior

offense evidence had probative value.

       In regard to the prejudicial effect of the prior crime evidence, only one witness

testified about the prior crime and the testimony was brief, so the evidence did not

consume an undue amount of time. While the charged and uncharged offenses were

similar, there were differences that would have allowed the jury to distinguish the


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crimes so as not to confuse them. For example, the prior offense occurred while

defendant was riding a bicycle in Huntington Park, while the charged crime took place

in prison, in Norco. Given the disparate settings, it is unlikely a trier of fact would

mistake the two offenses.

       In sum, the prior crime evidence had probative value and a low risk of creating a

prejudicial effect. Accordingly, we conclude the trial court acted within its discretion

when granting the prosecutor permission to present the prior crime evidence.

       Defendant asserts the prior crime evidence did not have probative value because

it was merely used to show defendant’s propensity for selling marijuana. Defendant’s

argument is not persuasive because the prior offense helped to show defendant knew

about the drug’s illegal character and also that he was not merely storing the drug for his

personal use. For example, a logical defense argument would have been that defendant

did not possess the drug for sale, rather he had it for his own personal consumption, and

defendant broke the drug into smaller portions to lower the risk of it being detected by

correctional officers when he took it out to consume it. The fact that defendant had

previously been caught with small bindles helped to prove that defendant, in fact,

planned to sell the drug. Thus, we are not persuaded the prior offense evidence was

merely used to prove defendant’s propensity for selling drugs.

       Defendant asserts the admission of propensity evidence violated his right of due

process. Since we have concluded the prior offense evidence was relevant to proving

elements of the charged offense, we disagree with defendant’s premise that this

evidence was propensity evidence. As a result, we do not address the due process issue.


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       B.     SECTION 654

              1.      PROCEDURAL HISTORY

       When discussing the possibility of instructing the jury on alternative charges

(where a dual conviction is prohibited) (CALCRIM No. 3516) the trial court made the

following remarks: “Here’s the issue: It’s going to be—the difference—I don’t think

it’s ultimately going to make a difference in the sentence if the defendant’s convicted.

It’s a legal issue of whether it’s [section] 654 or [CALCRIM No.] 3516, because on the

facts presented here, even if the defendant is convicted, I can’t sentence him separately

for the two charged crimes, so in the sense, it’s a theoretical—I mean, it’s a—it will get

sent back, but it will get sent back because it should have been, you know—if they

come back guilty on both then [¶] . . . [¶] . . . if they’re du[a]l—if [CALCRIM No.]

3516 was the correct instruction, then it will be sent back if he’s convicted on both,

because he couldn’t be convicted on both, but in either case, it’s either going to be that I

was wrong and should have given [CALCRIM No.] 3516 or it was a 654 issue. I can’t

find anything specifically on it.”

       The trial court concluded, “[S]o it’s not a lesser included offense, but I guess

we’ll leave it to the authorities. I’m going to treat it as a [section] 654 issue. It’s not

one of the ones specifically listed. Unless there’s an objection, I’m going to stick with

[CALCRIM No.] 3515 in lieu of [CALCRIM No.] 3516 and do it [section] 654 for

sentencing. I don’t think we’re going to get a big argument under [section] 654 unless

for some odd reason the defendant were convicted of both.”




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       The jury found defendant guilty of possessing marijuana in prison (Pen. Code,

§ 4573.6) and possessing marijuana for sale (Health & Saf. Code, § 11359). The trial

court sentenced defendant to a term of six years for possessing marijuana in prison, and

a consecutive term of one year, four months for the sales offense. The trial court did not

mention section Penal Code 654 when pronouncing defendant’s sentence.

              2.     ANALYSIS

       Defendant contends the trial court erred by not applying section 654 because the

separate prison terms are punishing a single act. We agree.

       We apply the substantial evidence standard of review. (People v. Powell (2011)

194 Cal.App.4th 1268, 1296.) Section 654, subdivision (a), provides: “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.” Thus, “‘a single possession . . . on a single occasion may be punished only

once under section 654.’ [Citation.]” (People v. Jones (2012) 54 Cal.4th 350, 357.)

Thus, a central question in the section 654 analysis is whether there is a single physical

act, as opposed to criminal/legal acts. (Jones, at pp. 355-357.)

       Possessing volumes of a single substance in the same location at the same time is

a single act. (People v. Schroeder (1968) 264 Cal.App.2d 217, 228.) In this case, there

is a only a single act underlying defendant’s convictions: possession of marijuana

located in defendant’s locker. Thus, there is a single physical act of possession: one




                                             9
substance, one location, and one time. As a result, the trial court should have applied

section 654 to the lesser sentence because there was only one act.

       Our analysis is unaffected by the very real possibility that defendant harbored

multiple criminal objectives in possessing the marijuana. The number of criminal

objectives a defendant entertains is only relevant in cases involving multiple physical

acts. (People v. Mesa (2012) 54 Cal.4th 191, 199.) There is only a single physical act

in this case. So, rather than attempting to divine what possible objectives defendant

might have had in possessing the marijuana, “we find it better to rely on [Penal Code]

section 654’s actual language in resolving this single-act case.” (See People v. Jones,

supra, 54 Cal.4th at p. 360.) In so doing, our analysis becomes simple: The trial court

imposed multiple sentences on a single physical act. Under Jones, this was

impermissible. Defendant’s one year, four month prison term for possessing marijuana

for sale (Health & Saf. Code, § 11359) (Count 2) must be stayed pursuant to Penal Code

section 654.

       The People assert defendant’s possession of marijuana constituted two acts

because defendant could have intended to sell a portion of the drugs while keeping the

remaining portion for himself. We agree that selling drugs and possessing drugs are

two separate offenses. However, defendant was not convicted of selling and possessing.

He was convicted of two crimes of possession; one concerned the location of the

possession and the other concerned the reason for the possession. Defendant was not

convicted of selling marijuana.




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       For example, in People v. Goodall (1982) 131 Cal.App.3d 129, 135-136, four

defendants were convicted on three counts: possession of PCP ingredients with intent

to manufacture PCP, possession of PCP for sale, and manufacturing PCP. In that case,

there was evidence the defendants manufactured some PCP, intended to sell a portion of

the PCP in their possession, and planned to use the ingredients to manufacture more

PCP. (Id. at p. 147.) The appellate court noted the crimes could be viewed as “part of

an indivisible course of conduct with a single objective,” or as having multiple criminal

objectives. Since the court was applying the substantial evidence test, it upheld the trial

court’s conclusion that there were multiple criminal objectives. (Id. at p. 148.)

       Our case is distinguishable from Goodall. In Goodall, the defendants possessed

two separate substances—PCP and the components to make PCP. The Goodall

defendants also committed two separate physical acts: possession and manufacturing.

In the instant case, there is one act and one substance: possession of marijuana in a

locker. Thus, we are not persuaded by the People’s argument that defendant’s act can

be broken into two separate acts, because possessing volumes of a single substance in

the same location at the same time is a single act. (People v. Schroeder, supra, 264

Cal.App.2d at p. 228.)

       The People cite a variety of other cases to support their position that defendant’s

possession constitutes two acts; however, all the cases suffer from the same issue of

involving two different substances or two different locations. (People v. Briones (2008)

167 Cal.App.4th 524, 528-530 [methamphetamine and heroin]; People v. Bell (1968)

258 Cal.App.2d 450, 452-453 [marijuana and amphetamine sulphate]; People v. Von


                                            11
Latta (1968) 258 Cal.App.2d 329, 340 [possession of marijuana in Garden Grove and

Newport Beach].) As set forth ante, defendant’s act involves a single substance in a

single location at one time, thus, creating only one physical act of possession.

       C.       SENTENCING DISCRETION

                1.   PROCEDURAL HISTORY

       At the sentencing hearing, the trial court noted that the probation report set forth

“several alternatives” and the trial court was following the report “in part.” The court

sentenced defendant to the midterm for the principle count of possessing marijuana in

prison. The court considered mitigating factors, such as “defendant’s personal

situation,” in that defendant was “making an attempt to rehabilitate himself.” However,

the court found those mitigating factors were balanced by defendant’s “prior record,”

which reflected “ongoing issues with substance abuse.” Thus, the court concluded the

midterm was appropriate.

       Next, the trial court stated it had discretion to “run this case concurrent or

consecutive,” and then stated it would select a concurrent sentence. The prosecutor

stated the sentence had to be consecutive, due to defendant’s prior strike conviction.

The trial court acknowledged the prosecutor was correct and imposed consecutive

prison terms.

                2.   ANALYSIS

       Defendant contends the case should be remanded for resentencing because the

trial court was unaware of the sentencing discretion it had as evinced by (1) the court

not applying section 654, (2) the court not applying the low term, (3) the court imposing


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consecutive rather than concurrent terms, and (4) the court not striking the sentence for

the prison prior. We disagree.

       Where the record reveals the court was unaware of its discretion a defendant is

entitled to remand for resentencing. (People v. Askey (1996) 49 Cal.App.4th 381, 388.)

       The section 654 issue is moot given our conclusion ante. (People v. Travis

(2006) 139 Cal.App.4th 1271, 1280 [when no effective relief can be granted the issue is

moot].) As to the other issues, defendant asserts the trial court, upon learning it had to

impose a consecutive term, appeared not to realize that it could have imposed the low

term and struck the sentence for the prison prior. It appears defendant is questioning

why the court did not reverse-engineer a lower sentence upon learning that consecutive,

rather than concurrent terms, would be required. Given the trial court’s thoughtful

comments concerning its reasons for selecting the midterm, and the prosecutor’s reasons

for why consecutive terms were required, we are not persuaded that the trial court was

acting without knowledge of its discretionary authority when sentencing defendant,

because the record reflects why the sentencing choices were made, which ergo reflects

knowledge that other choices could have been made. In sum, we conclude the trial

court did not err.

                                     DISPOSITION

       Defendant’s sentence for Count 2 (Health & Saf. Code, § 11359) is modified to

reflect the sentence is stayed pursuant to Penal Code section 654. The trial court is

directed to prepare an amended abstract of judgment and to forward a certified copy to




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the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) In all

other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                    MILLER
                                                                                       J.


We concur:


RAMIREZ
                              P. J.


HOLLENHORST
                                 J.




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