Filed 10/11/13 P. v. Murguia CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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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.

         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 that 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 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.

                    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 otherwise
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 bagg[ie] 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.

       “„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


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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

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


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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 trial 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

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


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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 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 (§ 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 term of one

year, four months for the sales offense.

              2.      ANALYSIS

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

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

       “[S]ection 654 prohibits punishment for two crimes arising from a single

indivisible course of conduct. [Citation.] If all of the crimes were merely incidental to,

or were the means of accomplishing or facilitating one objective, a defendant may be

punished only once. [Citation.] If, however, a defendant had several independent

criminal objectives, he may be punished for each crime committed in pursuit of each

objective, even though the crimes shared common acts or were parts of an otherwise

indivisible course of conduct. [Citation.] The defendant‟s intent and objective are

factual questions for the trial court, and we will uphold its ruling on these matters if it is

supported by substantial evidence. [Citation.]” (People v. Perry (2007) 154

Cal.App.4th 1521, 1525.)

       During trial, evidence was presented that defendant refused to submit to a urine

drug test following the discovery of marijuana in his locker. During closing argument,

the prosecutor argued: “The defendant was arrested, and when ordered to submit to a

urine sample, said, No, I refuse to submit a urine sample. Whether he knew, Hey, they




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found my marijuana, or not, why would you ever refuse a urine sample if you‟re clean?

No reason at all.”

       Based upon defendant‟s refusal to submit to the drug screening, the trial court

could reasonably infer defendant possessed some of the marijuana for his personal use,

while the rest of the marijuana was possessed for the purpose of selling it. Thus, the

trial court could reasonably conclude defendant harbored independent criminal

objectives in possessing the marijuana—(1) personal consumption, and (2) selling to

others. Accordingly, we conclude the trial court did not err by not applying section 654

to defendant‟s sentence.

       Defendant asserts it is speculation to infer that he possessed some of the

marijuana for personal use, because defendant was not “found guilty of simple

possession for personal use.” We do not find defendant‟s argument to be persuasive

because defendant was convicted of two crimes (1) possession of marijuana in prison,

and (2) possession of marijuana for sale. The two different intents are consistent with

these separate offenses. We disagree that there would need to be a specific “personal

use” conviction. Moreover, defendant‟s refusal to submit to a drug screening supports

an inference that he personally consumed the marijuana, thus providing substantial

evidence for the trial court‟s decision not to apply section 654.

       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


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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

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.)

       Given the trial court‟s lengthy discussion about section 654, set forth ante, it

appears the trial court fully understood the discretion it had under section 654. The trial

court described the application of section 654 to defendant‟s sentence and the possibility


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of applying the provision. Thus, we conclude the trial court was aware of the authority

it possessed concerning section 654.

       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

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                        MILLER
                                                                                            J.

We concur:


RAMIREZ
                               P. J.

HOLLENHORST
                                   J.


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