Filed 9/23/14 P. v. Miranda CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F066164
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. MCR0422651)
                   v.

MANUEL MIRANDA,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.

         William A. Malloy, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *Before Poochigian,        Acting P.J., Peña, J. and Chittick, J.†
         †Judge ofthe Fresno Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
                                       INTRODUCTION
       Defendant Manuel Miranda was convicted of conspiracy to possess and sell
methamphetamine, transportation of methamphetamine, and using a false compartment in
a vehicle with intent to transport. At sentencing, the trial court imposed a total of 12
years 4 months in prison, including a term of 1 year 4 months for use of the false
compartment.
       On appeal, defendant contends the trial court erred in denying his request that it
stay imposition of punishment for the use of a false compartment charge pursuant to
Penal Code1 section 654 because it involves the same intent and objective as the
transportation count. We agree with defendant, finding the use of a false compartment
involves the same intent and objective as that associated with the transportation of
methamphetamine. We will therefore modify and affirm the judgment.
       Additionally, following plaintiff’s separate contention that the abstract of
judgment should be amended to reflect defendant was tried by a jury, rather than pleading
guilty, and that defendant was sentenced pursuant to section 667, subdivisions (b)
through (i), we will direct the trial court to amend the abstract of judgment accordingly.
     BRIEF FACTUAL SUMMARY AND PROCEDURAL BACKGROUND2
       In the summer and fall of 2011, the California Department of Justice, Bureau of
Narcotic Enforcement, with the assistance of other law enforcement agencies, conducted
an investigation into methamphetamine trafficking. As a part of this investigation,
methamphetamine was purchased from Ricardo Lopez Diaz by an undercover agent. On
the first occasion, the undercover agent purchased 116 grams of methamphetamine for
$2,900. On the second occasion, another quarter pound of methamphetamine was
purchased. Each purchase was observed by agents performing surveillance on the ground
and from the air.

       1All   further statutory references are to the Penal Code unless otherwise indicated.
       2Additional   or specific facts will be discussed as necessary to our analysis.


                                                  2.
      A third undercover buy occurred on October 28, 2011. On that occasion, the
undercover agent purchased a total of a pound of methamphetamine for $10,000 from
Diaz. Surveillance was in place on this occasion as well.
      Another buy was to take place on November 3, 2011. Surveillance was again in
place, however, Diaz encountered difficulty obtaining the methamphetamine from his
favored source. Diaz contacted another source—located in Bakersfield—in order to
accommodate the buyer. Arrangements were made wherein Diaz would sell several
pounds of methamphetamine to the undercover agent after receiving that substance from
his Bakersfield source—Luis Robert Garcia—by way of a delivery driver. Specifically,
the driver would transport the methamphetamine from Bakersfield to Madera, where it
would then be provided to Diaz with the understanding it would ultimately be sold by
Diaz to the undercover officer.
      On November 3, 2011, defendant was observed leaving his hometown of
Firebaugh in a white truck, and driving south to Bakersfield. Once in Bakersfield, he
went to Garcia’s home. Accompanied by Garcia, defendant was observed visiting a store
and trailer park. Although under surveillance, defendant was not seen leaving the trailer
park area. Later, however, after wiretaps indicated defendant was to drive from
Bakersfield to Madera where he would meet Diaz at a Jack in the Box, agents observed
defendant driving a red Ford Explorer, northbound on Highway 99 between Fresno and
Madera.
      Once defendant arrived in the parking lot of the Jack in the Box, he followed Diaz
to a home located on Owens Street in Madera. Defendant backed the Ford Explorer into
the home’s garage; the garage door was closed. Several minutes later, defendant
departed in the Ford Explorer and headed towards Firebaugh.
      Meanwhile, the undercover agent and Diaz agreed the exchange of six pounds of
methamphetamine would have to wait until the following day, or November 4, 2011.
Instead, however, a number of search warrants were executed on that date, and arrests
were made. Defendant was arrested that morning after he was stopped in Firebaugh

                                            3.
driving the Ford Explorer. A search of the vehicle revealed a hidden compartment
between the second and third row seats. A large digital scale and $7,500 in cash were in
the compartment; no drugs were found. Following execution of a search warrant, the
drugs were located in a storage unit containing Diaz’s possessions.
       Consequently, defendant was charged with conspiracy to sell methamphetamine
(§ 182, subd. (a)(1); count 1), transportation of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a); count 2), and use of a false compartment with the intent to transport
methamphetamine (Health & Saf. Code, § 11366.8, subd. (a); count 3). It was further
alleged the methamphetamine weighed in excess of one kilogram (Health & Saf. Code,
§ 11370.4, subd. (b)(1)) and that defendant had a prior strike conviction (§ 667, subds.
(b)-(i)), to wit, robbery (§ 211) in 2004.
       The jury found defendant guilty of all counts. It also found the weight
enhancement true. Thereafter, defendant admitted the strike prior allegations. At
sentencing, the trial court imposed an eight-year sentence for the transportation of
methamphetamine (count 2), a concurrent eight-year term for conspiracy to commit sales
of methamphetamine (count 1)—stayed pursuant to section 654, and a 16-month sentence
for use of a false compartment to transport a controlled substance (count 3). A three-year
weight-related enhancement was also imposed, for a total of 12 years 4 months in prison.
                                       DISCUSSION
I.     The Applicability of Section 654 to Count 3
       Defendant contends the evidence establishes he possessed the methamphetamine
and used the false compartment in order to transport that substance. Thus, because that
course of conduct was incident to one objective, the trial court erred by failing to stay
imposition of the 16-month sentence on count 3. Plaintiff argues use of the false




                                             4.
compartment involves a separate objective: concealment. Under these facts, we agree
with defendant.3
       Relevant Legal Principles
       Section 654, subdivision (a) provides as follows:

       “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. An acquittal or
       conviction and sentence under any one bars a prosecution of the same act or
       omission under any other.”
The statute “precludes multiple punishment for a single act or omission, or an indivisible
course of conduct. [Citations.]” (People v. Deloza (1998) 18 Cal.4th 585, 591.) If a
defendant is convicted under two statutes for one act or indivisible course of conduct,
section 654 requires the sentence for one conviction be imposed, and the other imposed
and then stayed. (Deloza, at pp. 591–592.) “Section 654 does not allow any multiple
punishment, including either concurrent or consecutive sentences. [Citation.]” (Id. at p.
592.) The correct procedure is to impose a sentence for each count and enhancement and
then to stay execution of sentence as necessary to comply with section 654. (People v.
Duff (2010) 50 Cal.4th 787, 795–796.) The statute serves the purpose of preventing
punishment that is not commensurate with a defendant’s criminal liability. (People v.
Hall (2000) 83 Cal.App.4th 1084, 1088, disapproved on other grounds in People v.
Correa (2012) 54 Cal.4th 331, 343-344.)
       “Whether a course of criminal conduct is divisible and therefore gives rise to more
than one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (Neal v. State of

       3Although  the prosecutor argued the use of the false compartment occurred on
November 4, 2011, when defendant “ferr[ied] large sums of cash about … to avoid police
detection,” we note plaintiff makes no such contention beyond the use of the compartment on
November 3, 2011.


                                              5.
California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa,
supra, 54 Cal.4th at pp. 343-344.)
       “If [a defendant] entertained multiple criminal objectives which were independent
of and not merely incidental to each other, he may be punished for independent violations
committed in pursuit of each objective even though the violations shared common acts or
were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8
Cal.3d 625, 639.)
       Whether there was more than one intent or objective is a question of fact for the
trial court and will be upheld on appeal if there is substantial evidence to support it.
Where the trial court does not make an express finding, an implied finding that the crimes
were divisible inheres in the judgment and must be upheld if supported by the evidence.
(People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
       The Sentence Imposed
       After explaining its denial of defendant’s motion made pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 during sentencing proceedings, the court
addressed the following:

               “[THE COURT:] Before I proceed with the sentencing in this matter I
       could perhaps address an issue that has occurred to the Court maybe
       inappropriately so, but I just need to get it out there and then I may ask
       counsel for their comments and if they need time to address it I’ll be happy
       to give then a continuance to address that. And that is the issue of 654 as it
       relates to Count 1 and Count 2.[4] Do we have a 654 issue? Meaning, that
       the Court has a concern about whether it can impose sentence on both of
       those counts or whether it needs to stay sentence on one of those counts? It
       appears to be the conspiracy included transportation, and that’s—that’s the
       acts that the defendant was involved in as part of the conspiracy.

             “Is that something counsel can address today or do you need time to
       address it?



       4The probation   report recommended the imposition of consecutive terms for counts 2 and
3.


                                               6.
             “[DEFENSE COUNSEL]: From the defense, that was an issue that the
      defense was going to raise, Your Honor. I believe that the three offenses
      for which [defendant] was convicted stem from the same incident or course
      of conduct and, therefore, … 654 prescribes multiple punishments for that
      single act and course of conduct. So I would take the position it does apply
      to Counts 1, 2 and 3 in this instance.

             “[PROSECUTOR]: And, Your Honor, as far as Count 1, the
      conspiracy, it’s my understanding that that’s the agreement even though the
      act wasn’t completed the crime of conspiracy still could have been
      committed the basic agreement is separate in doing the act I would argue
      there’s not a 654 issue.

             “THE COURT: All right. I’d like to see some legal authority on this.
      Something counsel feels would be appropriate. I understand the defense is
      going to take the position 654 applies. The People are going to take the
      position it doesn’t, but I’d be more comfortable if there was some—

             “[DEFENSE COUNSEL]: Your Honor, if I may.

             “THE COURT: —legal authority submitted.

              “[DEFENSE COUNSEL]: It appears the current Supreme Court case on
      this is People versus Jones, no relationship to this case. I have an advance
      case number of S179552. It’s an opinion from June 21st of this year. And
      in that opinion they overrule In Re Hayes, and People versus Harrison and I
      think come to the conclusion that I stated that an incident a single incident
      or a course of conduct, even though separate crimes can be charged out of
      that, that 654 says that multiple punishment is not appropriate. So given
      that, the defense has no objection to a continuance so that this matter can be
      looked at further by the Court and by the People.

             “THE COURT: All right. I really would like to look at this issue.
      The Court has a concern about it. It’s not appropriate—the
      recommendation is for consecutive sentences. If it’s not appropriate, the
      Court doesn’t want to impose it.”
When sentencing proceedings resumed on November 9, 2012, the trial court stated as
follows:

             “THE COURT: The Court has reviewed the file. I’ve reviewed the
      Probation Department report recommendation, as well as letters on behalf
      of the defendant; certificate. Reviewed the documents regarding the issue
      of 654. And the requirement to stay certain offenses.



                                            7.
               “I’m going to tell Counsel what I’m inclined to do at this point. And
       I’ll be happy to hear any additional arguments regarding either the
       sentencing or the 654 issue.

               “In the Court’s mind, the defendant does not qualify for probation.
       He’s ineligible for probation. The Court’s inclined to sentence him to—and
       I’ll go through the reasons why when I do the sentencing—the aggravated
       term of eight years for Count 2. And then on Count [1], I’ll impose the
       aggravated term of eight years and I’ll run that concurrent to Count 2. And
       I’ll stay that pursuant to 654 ….

              “Count 3 the Court’s inclined to sentence him to 16 months, which is
       one third the median term consecutive. I’m not going to stay that count. I
       don’t believe it’s appropriate in the facts of this case. And then an
       additional three years state prison consecutive enhancement pursuant to
       11370.4(b)(1) of the Health and Safety Code. An aggregate term of 12
       years and four months. [¶] Anything on behalf of the People?

              “[PROSECUTOR]: Your Honor, when I wrote my brief I had listed
       reasons why I thought the Court could impose [sentences] for all three
       charges but given what the Court had said last time we were here and
       considering that I think this may be the wisest course of action to prevent
       appellate action or things in the future so the People would submit on what
       the Court’s decision is.

              “THE COURT: All right. And on the defense what additional would
       you like to add?

               “[DEFENSE COUNSEL]: Just two comments briefly. Regarding the
       654 issue, um, I do believe the Court could, if it was willing, to stay the
       term for Count 3. And I think this is a situation under People v. Jones that
       this is a defendant’s actions on the facts of this case and his involvement in
       this case show one course of conduct; that I think all these charges arise out
       of and that being the driving from Firebaugh to Bakersfield, Bakersfield
       back to Madera. And that being all the facts that were presented in the
       case. And certainly one course of conduct in that regard. And we would
       ask the Court to do so.”
After addressing the aggravating factors, the trial court imposed an eight-year sentence
for transportation of methamphetamine (count 2), and an eight-year sentence for
conspiracy to transport methamphetamine (count 1), which it stayed pursuant to section
654. The court also imposed a 16-month term for the use of a false compartment (count



                                             8.
3).5 It did not stay imposition of that term, finding “[t]his vehicle that was used was
sophisticated. It had a sealed compartment. It was difficult to locate. Difficult to open.
Basically used for the transportation and the concealment of drugs and/or money.”
       Our Analysis
       Section 654 precludes multiple punishments for a single act even where that act
violates more than one statute, constituting more than one crime. Defendant’s argument
that his use of the false compartment and transportation of the methamphetamine
amounted to a single act or course of conduct, requiring a stay of the 16-month sentence
imposed for use of that false compartment, is persuasive.
       While plaintiff asserts defendant’s use of the false compartment involved the
objective of avoiding “detection by law enforcement,” the fact remains the concealment
was part and parcel to the transportation of the methamphetamine. Defendant’s use of
the false compartment pertained only to the November 3d or 4th occasion involving the
transportation of methamphetamine. The third amended information filed June 12, 2012,
reads as follows:

       “COUNT 3 [¶] For a further and separate cause of action, being a different
       offense of the same class of crimes and offenses as the charge set forth
       above, the said defendant(s) MANUEL MIRANDA did, on or about
       November 4, 2011, in the County of Madera, State of California, commit a
       FELONY, namely, violation of Section 11366.8(a) of the Health & Safety
       Code of the State of California, in that the said defendant did possess, use
       and control a false compartment with the intent to store, conceal, smuggle
       and transport a controlled substance within the false compartment.”
       (Italics added.)
There are no facts suggesting defendant used the false compartment on more than one
occasion.



       5Health  and Safety Code section 11366.8, subdivision (a) provides in pertinent part:
“Every person who … uses … a false compartment with the intent to store, conceal, smuggle, or
transport a controlled substance within the false compartment shall be punished by
imprisonment ….”


                                              9.
       Plaintiff contends there is evidence in the record from which the trial court could
infer defendant “would be using the false compartment on an ongoing basis.” Plaintiff
provides a number of citations to the record concerning a conversation recorded between
Diaz and the drug supplier Garcia. In that conversation, there is discussion about Diaz’s
need for an alternate delivery driver on the occasion of the next deal. A review of that
conversation reveals two things. First, after the then-impending transaction, the time
schedule would return to those employed in the earlier three transactions. A reasonable
inference is that the woman referred to in the conversation as the regular delivery driver
would resume acting in that capacity. Second, as plaintiff suggests, there is reference to
an alternate driver. However, it is unclear whether the other driver is the woman’s
husband or some other individual. In any event, there is nothing in the record to suggest
the other individual would be defendant. In fact, when Deputy Nicholas Davis testified
about this particular wiretap conversation on cross-examination, he indicated he did not
believe the conversation pertained to defendant.
       In People v. Latimer (1993) 5 Cal.4th 1203, the defendant pled guilty to two
counts of forcible rape and one count of kidnapping. He admitted inflicting great bodily
injury. (Id. at p. 1206.) The trial court sentenced defendant to six years each for the rape
convictions, five years for the great bodily injury enhancement, and an additional one
year eight months for the kidnapping conviction. (Ibid.) On review, the Court of Appeal
found the kidnapping was carried out only to further the defendant’s intent and objective
to rape his victim. As a result, the appellate court held separate punishment for the
kidnapping count was prohibited by section 654. (Latimer, at p. 1207.) The California
Supreme Court affirmed the Court of Appeal’s holding. After a lengthy discussion
regarding the decision in Neal v. California, supra, 55 Cal.2d 11, the Latimer court
ultimately concluded that “[a]lthough the kidnapping and the rapes were separate acts,
the evidence does not suggest any intent or objective behind the kidnapping other than to
facilitate the rapes.” (Latimer, supra, at p. 1216.) Likewise here, although the
transportation of methamphetamine and use of the false compartment to conceal that

                                            10.
substance can be said to be separate acts, the evidence does not suggest any intent behind
the use of the false compartment other than to facilitate the transportation of
methamphetamine.
       We find it significant here that defendant was not the owner of the Ford Explorer
equipped with the false compartment, and his participation was limited to a single
occasion.6 The vehicle was registered to a woman believed to be Garcia’s girlfriend. In
any event, it was controlled by Garcia. Defendant used Garcia’s vehicle in place of his
own. The evidence did not show defendant had used Garcia’s vehicle in the past or that
defendant had any plans to use it for future drug transactions.
       Plaintiff argues in part that the legislative intent behind Health and Safety Code
section 11366.8 reveals the statute was enacted to punish those who both transport
controlled substances and use a false compartment in doing so. In People v. Arias (2008)
45 Cal.4th 169, the court addressed whether a false compartment, for purposes of the
statute, included original factory equipment such as a glove compartment. In answering
that question in the negative, the Arias court noted the following:

               “The Senate Judiciary Committee’s analysis of Assembly Bill
       No. 1760 (1993-1994 Reg. Sess.) observed that according to the law
       enforcement agency sponsors of the measure, during the first three months
       of 1993, ‘approximately 100 vehicles were interdicted at the California-
       Mexico border utilizing a variety of fabricated or altered storage
       compartments or parts in vehicles. The sponsors contend that the
       proliferation of false compartments in the drug trade is due to an increase
       in the number of specialized auto shops which manufacture and install such
       compartments.… Persons who manufacture or use secret compartments
       can only be prosecuted for an underlying drug offense and not for the use of
       the compartment itself.’ (Sen. Com. on Judiciary, Analysis of Assem. Bill
       No. 1760 (1993–1994 Reg. Sess.) as introduced, Mar. 4, 1993, p. 2, italics
       added.) The Senate Judiciary Committee’s analysis included the bill
       sponsors’ assertion that ‘under current law, an auto shop which builds and
       installs false compartments for the transportation of controlled substances
       may openly admit their purpose to law enforcement officers and feel secure

       6Certainly on
                   the facts elicited at trial, it could be argued that Garcia would be using the
compartment on a continuing basis.


                                               11.
       in the fact that they have violated no law and can not be prosecuted unless
       they actually possess an illegal controlled substance’ and the sponsors
       contend that the bill ‘would provide a necessary tool for law enforcement
       efforts to combat increasing use of false compartments in the drug trade.’
       (Ibid., italics added.) This legislative history reveals the legislative intent to
       punish the individual who manufactures false compartments or who uses
       false compartments that are fabricated by someone other than the
       manufacturer of the original vehicle equipment.” (People v. Arias, supra,
       45 Cal.4th at pp. 182-183.)
Thus, on the facts here, we do not believe the intent of Health and Safety Code section
11366.8 is frustrated by the application of section 654 to defendant’s case. Here the
evidence established defendant did not own the vehicle. No evidence showed defendant
regularly used the vehicle. No evidence showed defendant was responsible for having
the false compartment installed or manufactured. No evidence established defendant was
an individual routinely involved in the drug trade and involved in enterprises such as
those operated by Diaz and Garcia. Instead, the evidence established defendant was
nothing more than a one-time courier. Punishing him for the use of a false compartment,
in addition to the transportation of methamphetamine, is not proper because that use
amounted to no more than a course of conduct with a single intent and objective.
       Further, the trial court’s own language at sentencing also supports our conclusion
that the use of a false compartment is part and parcel to the transportation of the
controlled substance that the compartment was designed to conceal. That is, the
compartment was “[b]asically used for the transportation and the concealment of drugs
and/or money.” Concealment is not necessary without transportation, for there is nothing
to conceal in the absence of transportation. The intent and objective behind concealment
is to effect the transportation. The fact the compartment was sophisticated does not
change our analysis in this case.
       Moreover, a review of the jury instruction pertaining to the use of a false
compartment supports our finding that transportation and its concealment arise from a
single intent:



                                              12.
              “The defendant is charged in Count 3 with possessing/using/
       controlling/a false compartment with the intent to store/conceal/transport a
       controlled substance in a vehicle in violation of Health and Safety Code
       section 11366.8.

              “To prove the defendant is guilty of this crime, the People must
       prove that:

              “1. The defendant possessed/used/controlled a false compartment
       with the intent to store/conceal/transport a controlled substance in the false
       compartment in a vehicle;

              “A false compartment is any box, container, space, or enclosure
       intended or designed to conceal/hide otherwise prevent discovery of any
       controlled substance within or attached to a vehicle.” (CALCRIM
       No. 2441, italics added.)
The intent referenced therein is plainly singular.
       We are satisfied our conclusion in this case comports with the purpose of section
654; that is, to ensure the defendant’s punishment is commensurate with the defendant’s
criminal culpability. (People v. Hall, supra, 83 Cal.App.4th at p. 1088.)
       In sum, while there is a sufficient basis for the jury’s verdicts—convicting
defendant of the use of a false compartment and, separately, for the transportation of
methamphetamine—there is no basis to distinguish the use of a false compartment from
defendant’s conviction for transporting those controlled substances for purposes of
punishment. Defendant’s use of the hidden compartment in Garcia’s Ford Explorer had
only one intent and objective: to enable him to transport the drugs from Bakersfield to
Madera on a single occasion. Therefore, the trial court did not have a sufficient basis
upon which to impose a consecutive 16-month sentence in count 3. The sentence must be
stayed.
II.    The Abstract of Judgment
       The abstract of judgment filed November 15, 2012, erroneously indicates that
defendant was convicted by way of plea. Defendant was convicted following a nine-day
jury trial. The abstract of judgment must be corrected accordingly. (People v. Mitchell
(2001) 26 Cal.4th 181, 185.)

                                             13.
       Additionally, the abstract fails to indicate defendant was sentenced pursuant to
sections 667, subdivisions (b) through (i), and 1170.12, for a 2004 prior strike conviction
(robbery). On this basis, too, the abstract of judgment should be corrected. (People v.
Mitchell, supra, 26 Cal.4th at p. 185.)
                                      DISPOSITION
       The judgment is modified to reflect imposition of the 16-month sentence on count
3 is stayed pursuant to section 654. The trial court is directed to amend the abstract of
judgment accordingly, resulting in a total sentence of 11 years. Additionally, the abstract
of judgment should be corrected to reflect that defendant was tried by a jury, and that he
was sentenced in accordance with his having suffered a strike prior. As so modified, the
judgment is affirmed. The trial court is directed to cause to be prepared an amended
abstract of judgment reflecting said modifications and to transmit certified copies thereof
to the appropriate authorities.




                                            14.
