People v. Taylor

NOT TO BE PUBLISHED

Super. Ct. No. 18FE011030

MURRAY, J.

After 13.2 grams of methamphetamine was found in his pocket, a jury found defendant Vincent Wayne Taylor guilty of simple possession of a controlled substance, a violation of Health and Safety Code section 11377, subdivision (a) (hereafter, section 11377(a)). Applying his strike convictions, the court sentenced defendant to a two-year eight-month aggregate term.

On appeal, defendant contends the trial court abused its discretion in denying his motion to sentence his simple possession conviction as a misdemeanor. He appears to

argue that section 11377(a)'s exemption - making simple possession a felony for those convicted of registrable offenses under Penal Code section 290, subdivision (c) (hereafter, section 290(c)) - does not apply to him, because when he was sentenced for misdemeanor indecent exposure, he was not ordered to register as a sex offender. He also argues that the indecent exposure conviction, which made his current offense a wobbler, was so minor that the trial court's refusal to reduce the felony drug possession conviction to a misdemeanor under Penal Code section 17, subdivision (b) (hereafter, section 17(b)) was an abuse of discretion.

We conclude defendant misreads section 11377(a). As we shall explain, a defendant need not have been ordered to register. Rather, if a defendant's prior conviction is on the list of registerable offenses set forth in section 290(c), it qualifies that defendant for felony conviction under section 11377(a). Consequently, we conclude that because defendant's conviction was for a registerable offense at the time section 11377(a) was amended by Proposition 47, he was validly sentenced to a felony for his drug possession conviction.

We further conclude defendant's argument concerning the purportedly minor nature of his disqualifying sex offense was forfeited for failure raise it in the trial court. And in any event, the error would be harmless on the record before us.

Defendant additionally contends the trial court abused its discretion in failing to dismiss his prior strike convictions, under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). To that, we conclude the trial court acted within its discretion in declining to strike defendant's prior strikes.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In mid-2018, a search of defendant uncovered a baggie of 13.2 grams of methamphetamine in his pocket, along with five or six additional empty plastic baggies. No items consistent with personal use were found on defendant. And defendant did not

appear to be under the influence of methamphetamine or show signs of being a chronic user. A search of his bedroom, however, uncovered no evidence of drug sales.

At trial, the prosecution's expert testified that a typical dose of methamphetamine is 0.1 grams. The 13.2 grams defendant had in his possession constituted 132 doses for the average user. And methamphetamine users typically carry no more than a gram or two. The expert thus opined that defendant possessed the methamphetamine for sale.

The jury nevertheless found defendant guilty of the lesser included offense of simple possession of a controlled substance (§ 11377(a)). It also found that defendant had previously been convicted of misdemeanor indecent exposure (Pen. Code, § 314, subd. 1, hereafter, section 314(1)). The trial court separately found defendant had five prior convictions, including two prior strikes.

At sentencing, the trial court denied defendant's section 17(b) motion to sentence the possession count as a misdemeanor, as well as his Romero motion to dismiss the prior strikes. Defendant was then sentenced to a two-year eight-month term (the low term doubled for the strike).

DISCUSSION

I. The Section 17(b) Motion

Defendant contends the trial court abused its discretion in denying his motion to sentence his simple possession conviction as a misdemeanor. We disagree.

A. Additional Background

Because he was convicted in 1995 of indecent exposure (§ 314(1)), an offense requiring registration as a sex offender under section 290(c), defendant's current offense, possessing methamphetamine, was a wobbler - a crime that could be sentenced as a

misdemeanor or felony at the trial court's discretion. (See § 17(b); § 11377(a)^[1]; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).)

Before sentencing, defendant moved to have his drug possession conviction sentenced as a misdemeanor, pursuant to section 17(b). He argued a felony conviction was inappropriate, "based on a 23-year-old misdemeanor conviction in which he may well have not been ordered to register." In support, he proffered a CJIS^[2] printout for his prior sex offense, showing the box for registration requirements was blank and no reference to registration as a condition of probation.^[3] Defendant also provided a signed declaration stating that he was never advised that he would have to register, and that he did not accept a plea that required him to register as a sex offender.^[4]

The trial court denied the section 17(b) motion. Doing so, it concluded the present offense is a felony despite defendant's insistence he was not ordered to register, because

the prior indecent exposure conviction is an offense requiring registration. The court then declined to reduce the felony conviction to a misdemeanor under section 17(b), explaining, defendant had "a substantial amount of controlled substance" that could be "as much as 130 doses." Therefore, "in the Court's view it's more than simple misdemeanor conduct. It does qualify . . . as felony conduct simply because of the nature and circumstances of the offense as well as other factors . . . ." The court cited as "other factors" defendant's "substantial past of criminal convictions and violations of probation."^[5] It then concluded "as to a 17(b) analysis, the question is whether this is

conduct that constitutes misdemeanor or felony conduct and in that respect I do think that it is felony conduct."

B. Analysis

Subsumed in defendant's argument that felony sentencing was an abuse of discretion, is the contention that because he was not ordered to register - and could not have been ordered to do so under the law existing at the time of his current conviction - his possession conviction could not be sentenced as a felony.

1. Section 17(b) Principles

Section 17(b) authorizes the reduction of "wobbler" offenses, in the trial court's discretion, from felonies to misdemeanors. (Alvarez, supra, 14 Cal.4th at p. 974.) In deciding whether to exercise discretion under section 17(b), our high court has said the trial court should consider "the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial." (Id. at p. 978.) The court "must undertake 'an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration; and the record must so reflect.'" (People v. Dryden (2021) 60 Cal.App.5th 1007, 1028 (Dryden), quoting Alvarez, at pp. 981-982.) The record of such consideration, "should reflect a thoughtful and conscientious assessment of all relevant factors including the defendant's criminal history." (Alvarez, at p. 979.) "Courts may also consider the sentencing objectives set forth in California Rules of Court, rule 4.410. [Citation.] Those include protecting society, punishing the defendant, deterring crime, encouraging the defendant to lead a law-abiding life, and preventing the defendant from committing new crimes. [Citation.] The trial court's discretion under [section 17(b)] is broad, and it will not be disturbed on appeal unless it is clearly shown the decision was irrational or arbitrary. [Citation.] Absent such a showing, we presume the trial court acted to achieve legitimate sentencing objectives." (Dryden, at pp. 1027-1028, citing Alvarez, at pp. 977-978.)

2. Registerable Sex Offense Exemption

Defendant's possession conviction was properly made a felony by virtue of the prior indecent exposure conviction. Methamphetamine possession under section 11377(a) becomes a felony if the defendant "has one or more prior convictions . . . for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code." (Italics added; see fn. 1, ante.)

Though defendant maintains he was not told to register, nothing in the applicable statutes requires proof that a defendant was actually ordered to register when he was convicted of the registerable offense. Section 11377(a) cross-references two statutory provisions that list a number of different offenses: Penal Code section 667, subdivision (e)(2)(C)(iv), sometimes referred to as superstrikes, and the list of mandatory sex registration offenses in section 290(c). This cross-referencing is, no doubt, a shorthand way of referring to each listed offense in these statutory provisions without having to relist all of them in section 11377(a). Given a plain reading of the statutory language it is apparent the electorate sought to allow felony treatment for anyone convicted of a cross-referenced offense. Had the electorate wanted to make registration a requirement, it could have easily done so by stating a drug possession conviction may be a felony where the defendant was required to register as a sex offender. Instead, the electorate focused on whether the offense requires registration. Thus, the resolution of this issue turns on whether the prior conviction was for a qualifying sex offense listed in section 290(c)...