People v. Ross CA3

Filed 4/27/21 P. v. Ross CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

                                      THIRD APPELLATE DISTRICT

    THE PEOPLE,                                                                                C090518

                    Plaintiff and Respondent,                                    (Super. Ct. No. CRF18-6265)



                    Defendant and Appellant.

         Defendant Larry Darnell Ross, Sr., appeals a judgment following a jury’s
determination that he committed one count of possession of cocaine base for sale (Health
& Saf. Code, § 11351.5) and one count of possession of a controlled substance in jail
(Pen Code, § 4573.6),1 as well as findings that defendant had a prior strike (§ 667, subds.

1        Undesignated statutory references are to the Penal Code.

(c), (e)(1)) and had served two prior prison terms (§ 667.5, subd. (b)), for which
defendant received an aggregate prison term of eight years.
       On appeal, defendant raises three challenges to his sentence. First, he seeks relief
in light of the passage of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136),
which would eliminate his two 1-year prior prison term enhancements. Second,
defendant asks that we stay his concurrent prison term pursuant to section 654. Finally,
defendant argues the trial court abused its discretion in failing to strike his prior strike at
       We agree that defendant is entitled to relief under Senate Bill 136 (2019-2020
Reg. Sess.), requiring remand for resentencing. In light of this determination, we will
direct the trial court to allow defendant to present his section 654 claim on remand.
Finding no merit in defendant’s remaining contention, the judgment is otherwise
       The People’s April 26, 2019 information charged defendant with possession of
cocaine base for sale (Health & Saf. Code, § 11351.5; count 1), possession of a controlled
substance in jail (§ 4573.6; count 2), possession of a firearm by a felon (§ 29800, subd.
(a)(1); count 3), unlawful possession of ammunition (§ 30305, subd. (a); counts 4 & 5),
and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 6).
The information alleged that defendant had a prior strike (§ 667, subds. (c), (e)(1)) and
two prison priors (§ 667.5, subd. (b)). Defendant pleaded not guilty and denied all
special allegations.
       Thereafter, the matter was tried to a jury. The People presented the testimony of
Yolo County Sheriff’s Deputy Gary Richter, who was on patrol when he noticed a car
pulling into a closed water park. Deputy Richter investigated, discovering defendant and
another individual in the car. A probation search of defendant revealed a pocketknife and
cell phone. Deputy Richter detained defendant and his passenger, Ms. Edwards, with

handcuffs and placed them both in the back of the patrol car. Richter then searched the
car. This search revealed a digital scale on the floor in front of the driver’s seat, a used
glass methamphetamine pipe in a jacket in the backseat, another used methamphetamine
pipe in a men’s toiletry kit, and in the trunk of the car, a nine-millimeter pistol, loaded
magazine, and live ammunition all hidden within a backpack. Defendant did not own the
car and had borrowed it from an individual several days before. No fingerprints were
found on the gun or the ammunition in the magazine.
       While Deputy Richter searched the car, a video of the backseat of the patrol car
captured defendant telling Ms. Edwards to get his “stuff,” and directing her where that
stuff was. As the search continued, Ms. Edwards attempted to reach something with her
hand and at one point reached down with her mouth for approximately 10 to 15 seconds.
This video was played for the jury and was admitted into evidence.
       After the search, Deputy Richter “Mirandized”2 defendant and obtained a waiver.
He then asked defendant whether he had any illegal drugs on him, which defendant
denied. Defendant also denied knowing about any methamphetamine pipes and denied
the gun was his. At that point, defendant spoke clearly and was easy to understand.
Richter testified that he warns all arrested individuals it would be a second felony to
bring contraband into the jail. On the way to jail, Richter again asked defendant whether
he had drugs, and defendant denied having anything.
       Once at the jail, booking staff asked defendant questions related to the booking
process, and Deputy Richter noticed defendant’s speech had become more difficult to
understand and was like someone speaking with his “mouth full.” Suspecting defendant
may be hiding something in his mouth, Richter asked staff to search defendant, resulting
in the discovery of a plastic bag with 15 individual bindles of cocaine base in defendant’s

2      Miranda v. Arizona (1966) 

384 U.S. 436


16 L. Ed. 2d 694


mouth. The weight of the contents of these bindles ranged between 0.08 and 0.23 grams.
Methamphetamine and marijuana were subsequently found on Ms. Edwards.
       Deputy Richter was designated an expert in “possession for sale of cocaine base,
also known as crack cocaine.” Richter opined that having cocaine base without the
personal tools for using crack cocaine would support possession for sale. Breaking up
drugs into sealed bindles of amounts commonly sold is one way of prepackaging
narcotics for sale and would be incompatible with personal use. Further, Richter believed
text messages on defendant’s cell phone were related to the sale of narcotics. Richter
opined if a person had such text messages, a digital scale, the 15 bindles of varying
weights of cocaine base, the lack of tools to personally use the crack cocaine, and access
to a gun, that person would possess the cocaine base to sell it. Richter’s investigation
confirmed his belief that defendant was selling crack cocaine. The parties stipulated
defendant was prohibited from possessing a gun or ammunition.
       During closing arguments, the attorneys focused on which individual originally
had the cocaine bindles in the rear of Deputy Richter’s patrol car: defendant or
Ms. Edwards. The People argued the video depicted defendant instructing Ms. Edwards
to retrieve his “stuff” (drugs) and providing the location of the drugs, thus, defendant had
originally possessed the drugs. Defendant countered that the drugs belonged to Ms.
Edwards, who was found to be in possession of methamphetamine and marijuana when
she was processed at jail. Defendant only took possession of her drugs in the back of the
car in an attempt to help her. In reply, the People stressed that the video showed
defendant directing Ms. Edwards, nothing on the video indicated that the drugs belonged
to Edwards, and that Deputy Richter failed to discover drugs on Edwards, suggesting that
he also could have missed the drugs on defendant.
       The jury found defendant guilty of counts 1 and 2, but not guilty of the remaining
counts. In a bifurcated proceeding, the jury found all alleged enhancements were true.

       On September 27, 2019, defendant was sentenced to an aggregate prison term of
eight years. The court set the possession of cocaine base for sale, count 1, as the
principal term and imposed the midterm of three years, doubled to six because of the
prior strike. The court then imposed a concurrent term of three years, doubled to six
because of the prior strike on count 2, possession of a controlled substance in jail. The
court further imposed two 1-year terms for each of defendant’s prior prison terms. The
court awarded defendant 39 actual days plus 38 conduct days for a total of 77 days of
custody credits. Defendant timely appealed.
                          Senate Bill 136 (2019-2020 Reg. Sess.)
       In October 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.),
which amended section 667.5 effective January 1, 2020 (Stats. 2019, ch. 590, § 1).
Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to
those who have served a prior prison sentence for a sexually violent offense, as defined in
Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) The
amendment applies “retroactively to all defendants whose judgments are not yet final as
of [January 1, 2020].” (People v. Petri (2020) 

45 Cal. App. 5th 82

, 94.)
       As the People concede, defendant is entitled to have his two 1-year prior prison
term enhancements stricken. Defendant’s case was not yet final on Senate Bill 136’s
effective date and his two prior prison term enhancements were not based on prior terms
for sexually violent offenses.3 Because defendant received the midterm at sentencing, it

3      Defendant’s prior prison terms were for inflicting corporal injury on a spouse or
cohabitant with an enhancement for personally inflicting great bodily injury (§§ 273.5,
subd. (a), 12022.7, subd. (e)), and importing, transporting, or selling cocaine base (Health
& Saf. Code, § 11352).

is appropriate to remand this matter for resentencing. (See People v. Jennings (2019) 

Cal. App. 5th 664

, 682 [remanding for resentencing following striking of enhancements in
light of Senate Bill 136]; People v. Buycks (2018) 

5 Cal. 5th 857

, 893 [recognizing
remand for full resentencing occurs when part of sentence is stricken on review to allow
court to reconsider its discretionary sentencing choices].) While we remand for
resentencing, we observe that constitutional requirements preclude any resentencing that
increases defendant’s aggregate prison term from that originally imposed. (People v.
Burbine (2003) 

106 Cal. App. 4th 1250

, 1258-1259 [“the aggregate prison term imposed
for all of the surviving counts cannot be increased on remand”].)
                                    Penal Code Section 654
       As the Supreme Court explained in People v. Harrison (1989) 

48 Cal. 3d 321

: “It
is well settled that section 654 protects against multiple punishment, not multiple
conviction. [Citation.] The statute itself literally applies only where such punishment
arises out of multiple statutory violations produced by the ‘same act or omission.’
[Citation.] However, because the statute is intended to ensure that defendant is punished
‘commensurate with his culpability’ [citation], its protection has been extended to cases
in which there are several offenses committed during ‘a course of conduct deemed to be
indivisible in time.’ [Citation.]
       “It is defendant’s intent and objective, not the temporal proximity of his offenses,
which determine whether the transaction is indivisible. [Citations.] We have
traditionally observed that if all of the offenses were merely incidental to, or were the
means of accomplishing or facilitating one objective, defendant may be found to have
harbored a single intent and therefore may be punished only once. (Neal v. State of
California (1960) 

55 Cal. 2d 11

, 19.) [¶] If, on the other hand, defendant harbored
‘multiple criminal objectives,’ which were independent of and not merely incidental to
each other, he may be punished for each statutory violation committed in pursuit of each

objective, ‘even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct.’ [Citation.]” (People v. 

Harrison, supra

, 48 Cal.3d at p.
        Defendant argues we must stay his concurrent prison term for possession of a
controlled substance in jail (§ 4573.6) because it is prohibited by section 654. However,
defendant did not seek section 654 relief in the trial court. While this does not preclude
his claim on appeal (People v. Brents (2012) 

53 Cal. 4th 599

, 618 [sentence imposed in
contravention of section 654 is unauthorized and thus subject to correction at any time]),
because we already must remand the matter for a full resentencing, we find it appropriate
to allow the trial court to consider this issue in the first instance. (See, e.g., People v.
Jones (2002) 

103 Cal. App. 4th 1139

, 1143 [recognizing the application of section 654 is a
question of fact for the trial which is subject to substantial evidence review on appeal].)
The appropriateness of this action is underscored by the failure of either party to seek the
inclusion in the record on appeal of People’s exhibit 13, the video from the backseat of
Deputy Richter’s patrol car, which may be central to the proper determination of this
claim. Accordingly, we will direct the trial court to allow defendant to present his section
654 arguments on remand.
                                     The Romero Motion
        Defendant argues the trial court abused its discretion in failing to strike his prior
strike at sentencing under section 1385 and People v. Superior Court (Romero) (1996)

13 Cal. 4th 497

. We disagree.
        In denying defendant’s motion at the sentencing hearing, the trial court stated: “I
have looked at all the factors I must analyze under Romero, and I do not find that
[defendant] is an appropriate candidate for the 1385 Romero, so that is denied.”
        The trial court has wide discretion in determining whether to strike a strike under
Romero and must decide “whether, in light of the nature and circumstances of his present

felonies and prior serious and/or violent convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the [three
strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had
not previously been convicted of one or more serious and/or violent felonies.” (People v.
Williams (1998) 

17 Cal. 4th 148

, 161.) We review the decision to deny a motion to
dismiss a prior strike for an abuse of discretion. (People v. Carmony (2004) 

33 Cal. 4th

, 371, 375 (Carmony).)
       As our high court explained in Carmony, “In reviewing for abuse of discretion, we
are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking
the sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision
will not be reversed merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” 

(Carmony, supra

, 33 Cal.4th at pp. 376-377.)
       Defendant has not established the trial court’s decision not to strike his prior strike
was “so irrational or arbitrary that no reasonable person could agree with it.” 


, 33 Cal.4th at pp. 376-377.) On the contrary, while defendant had health problems
and a history of drug abuse, he also had a lengthy criminal history dating back decades
with his only respites from that criminal activity appearing to occur while he was
incarcerated. Accordingly, defendant has failed to meet his burden on appeal.
       The matter is remanded with directions for the trial court to resentence defendant
in light of the changes made by Senate Bill 136 (2019-2020 Reg. Sess.), including

striking defendant’s two prior prison term enhancements. The trial court also is directed
to consider any section 654 motion that defendant may wish to present. The judgment is
otherwise affirmed.

                                                       KRAUSE               , J.

We concur:

      MAURO                , Acting P. J.

      RENNER               , J.


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