People v. Monarrez

• Decision Date: 08 September 1998
• Docket Number: No. E020775,E020775
• Citation: 78 Cal.Rptr.2d 247,66 Cal.App.4th 710
• Parties: , 98 Cal. Daily Op. Serv. 7063, 98 Daily Journal D.A.R. 9722 The PEOPLE, Plaintiff and Respondent, v. Reyes Acuna MONARREZ, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 247

78 Cal.Rptr.2d 247

66 Cal.App.4th 710, 98 Cal. Daily Op. Serv. 7063,

98 Daily Journal D.A.R. 9722

The PEOPLE, Plaintiff and Respondent, v. Reyes Acuna MONARREZ, Jr., Defendant and Appellant.

No. E020775.

Court of Appeal, Fourth District, Division 2, California.

Sept. 8, 1998.

As Modified Oct. 1, 1998.

Review Denied Dec. 22, 1998. ^*

[66 Cal.App.4th 711] Ronnie Duberstein, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney

General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and Michele Linley, Deputy Attorney General, for Plaintiff and Respondent

OPINION

McKINSTER, Associate Justice.

A jury convicted defendant and appellant Reyes Acuna Monarrez, Jr. of possession of heroin for sale (Health & Saf.Code, § 11351), possession of cocaine for sale (Health & Saf.Code, § 11351), and receiving stolen property. (Pen.Code, § 496, subd. (a).) On this appeal, his sole contention is that the trial court improperly imposed separate sentences for the two drug offenses, the three year mid-term on one count and a one year consecutive term for the second count. ¹ He contends that the two drug offenses involved essentially the same act, and that separate punishment was barred by Penal Code section 654. We disagree, and affirm the judgment.

STATEMENT OF FACTS

We provide a somewhat detailed account of the development of the case, as it bears particularly on the arguments of respondent. The prosecution of defendant was part of the culmination of several years of apparently sporadic investigation and surveillance in connection with reports of drug activity at various locations. Between 1991 and 1993, defendant's relatives Maximino Acuna Monarrez and Florencio Acuna Monarrez were either seen in suspicious activity or owned vehicles connected to such activity. Defendant's first registered appearance was in 1995, when he was present during the serving of a narcotics search warrant. ² Shortly thereafter, defendant and Raymundo Acuna Monarrez were observed entering a house which immediately became the subject of suspiciously heavy traffic. After several more false starts, ³ the Monarrez vehicles were tracked to a certain address in north San Bernardino, and a search warrant was obtained for the residence. When officers served the warrant, Raymundo Monarrez Sr. answered the door. Defendant was inside, along with Angel, Adrian, and Carmen Monarrez. A semi-automatic handgun and currency were found in the residence, as well as the packaged heroin and cocaine which were the basis for the charges in this case.

Meanwhile, Raymundo Acuna Monarrez was detained at another location, driving one of the vehicles which the officers had observed involved in suspicious activity since 1991. ⁴

DISCUSSION

"Before its amendment in 1997, and at all times relevant here (the changes do not effect our discussion), Penal Code section 654 provided that "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one ..." The statute did not prevent multiple convictions for the same conduct, only multiple punishment. In such a case, the proper procedure is to stay execution of sentence on one of the offenses. (People v. Pearson (1986) 42 Cal.3d 351, 359-361, 228 Cal.Rptr.2d 509, 721 P.2d 595.) The quoted language bars multiple punishment where the convictions arise out of an indivisible transaction and have a singe intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839; see also People v. Latimer (1993) 5 Cal.4th 1203, 1216, affirming the rule of Neal.) Whether a In this case, defendant argues that the possession of the cocaine and the heroin for purposes of sale evinced but a single criminal objective. Narcotics cases have, in fact, provided fodder for numerous appellate opinions discussing the applicability of section 654. In several situations, courts have had little difficulty in finding multiple punishment to be appropriate. For example, in People v. Goodall (1982) 131 Cal.App.3d 129, 147-148, 182 Cal.Rptr. 243, defendants were associated with a "drug lab" which contained not only chemical equipment, but chemicals essential for the manufacture of phencyclidine (PCP), as well as the finished product. They were held properly convicted and punished for the multiple offenses of manufacturing PCP, possession of PCP, and possession of chemicals for use in the manufacture of PCP. The appellate court held that it was reasonable for the trial court to have found that the defendants entertained three separate objectives: to manufacture PCP, to sell it, and to manufacture more with the remaining chemicals. Similarly, in People v. Green (1988) 200 Cal.App.3d 538, 544-545, 246 Cal.Rptr. 164, multiple punishment was upheld for convictions of possession of narcotics, maintaining a place for selling or using narcotics, and maintaining a fortified place designed for the sale, possession, or manufacture of narcotics. And in People v. Menius (1994) 25 Cal.App.4th 1290, 1296-1297, 31 Cal.Rptr.2d 15, this court followed Goodall and Green in a case in which defendant had been convicted of, and punished for, both possession of marijuana and possession of various chemicals with the intent to manufacture methamphetamine, with both charges arising from discoveries made during a single search.

defendant did in fact have multiple objectives is generally a question of fact for the trial court, and its decision will be upheld on appeal if supported by substantial evidence. (People v. Braz (1997) 57 Cal.App.4th 1, 10, 66 Cal.Rptr.2d 553.)

However, in In re Adams (1975) 14 Cal.3d 629, 635-636, 122 Cal.Rptr. 73, 536 P.2d 473, the court struck down multiple punishment for a defendant who had been caught transporting several types of contraband in his vehicle. Reasoning that defendant entertained only the single objective of delivering the narcotics to a cohort, the court found an "indivisible course of conduct ... which ... results in the commission of a single punishable offense." Defendant argues that Adams requires a finding that he harbored a single intent and objective in this case--to sell illegal drugs, no matter how many individual types of contraband he possessed for this purpose.

We disagree. Although Goodall, Green, and Menius are obviously distinguishable from this case in that all involved different types of offenses, while this case involves the same offense, People v. Barger (1974) 40 Cal.App.3d 662, 672, 115 Cal.Rptr. 298 is directly on point. In Barger, defendant received separate punishments for possessing cocaine, Secobarbital, and marijuana, as well as for possessing heroin for sale. Rejecting defendant's contention that he had only the single objective of possessing drugs to trade for automatic weapons, ⁵ the court commented that California courts had "uniformly" held that section 654 "does not preclude multiple punishment for simultaneous possession of various narcotic drugs." (Ibid.) The Barger court relied, inter alia, on People v. Lockwood (1967) 253 Cal.App.2d...