Friday, June 5, 2015
Court of Appeal Rules:
No Consecutive Sentences for Offering to Sell Different Drugs
By KENNETH OFGANG, Staff Writer
A defendant cannot receive consecutive sentences for offering to sell multiple controlled substances in a single transaction, the Court of Appeal for this district ruled yesterday.
Although Div. Four affirmed Helen Chung’s convictions for offering to sell cocaine, cocaine base, and methamphetamine, it ordered that her sentences on two of the counts be stayed. The ruling effectively reduced the aggregate sentence from 16 years, four months to 14 years in prison.
It is Chung’s sixth prison sentence for drug felonies, the court noted.
Officers of the Los Angeles Police Department testified they arrested Chung after observing an apparent drug transaction in a parked automobile near Fourth and Bixel streets. One of the participants, they explained, had been under surveillance as a suspected drug dealer when he parked his car, got out, and entered the car occupied by Chung and another woman.
In addition to drugs, the officers seized a purse containing Chung’s identification and $870 in cash, a working scale, and more than $2,000 in cash and a baggie of heroin from the person of the man they had been following.
Qualified as experts, the officers opined that Chung possessed the drugs for sale. They cited the quantities involved, the presence of the cash, and the lack of any drug paraphernalia as tending to prove that the drugs were not possessed for personal use.
Jurors found Chung guilty of three counts of offering to sell, but not guilty of three counts of possession for sale. Judge Rand Rubin sentenced her to a five-year base term plus three three-year prior-conviction enhancements on the first count and consecutive terms of 12 months and 16 months, respectively, on the last two counts.
Justice Audrey Collins, however, writing for the Court of Appeal, said the last two terms were barred by Penal Code §654’s prohibition of multiple punishments for the same crime.
Collins distinguished cases holding that a defendant who possesses multiple controlled substances may receive multiple sentences, because each substance may be possessed with a separate criminal intent.
“Under the unique factual circumstances of this case, we agree with Chung,” the justice wrote. “Significantly, many of the cases holding or approving the idea that a defendant might simultaneously possess multiple narcotics for different reasons rely, at least in part, on the fact that the defendant harbored an intent to sell to multiple people, or had the opportunity to do so.”
“In these instances, a defendant could simultaneously possess multiple narcotics with multiple objectives, for example, to sell some to one buyer, some to another buyer, and retain some for another purpose. But here, Chung was acquitted on all possession charges and convicted only based on evidence of a single offer to sell the narcotics to a single buyer….There is no possibility that she maintained possession with intent to sell to someone else when the jury found no possession at all. Thus, we cannot say that there was substantial evidence in the record of multiple objectives underlying Chung’s single act of offering to sell multiple narcotics to a single buyer.”
People v. Jones
The argument that multiple punishments may be imposed under different statutes designed to prevent different evils, Collins added, cannot survive People v. Jones (2012) 54 Cal.4th 350, holding that the defendant could not be sentenced for three different crimes arising from the same incident of having a loaded gun in his car—possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying a loaded unregistered firearm in public.
In unpublished portions of the opinion, the court rejected defense contentions that the prosecution had exhibited bias in using a peremptory challenge to strike the lone African-American juror, that the court erred in admitting evidence of three of Chung’s prior convictions to show intent, and that one of the police officers was improperly qualified as an expert.
The case is People v. Chung, B253580.
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