People v. Ruiz, C053001 (Cal. App. 3/18/2008)
| Decision Date | 18 March 2008 |
| Docket Number | C053001 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JESUS DIAS RUIZ, Defendant and Appellant. |
Appeal from the Super. Ct. No. NCR64907.
A jury convicted defendant Jesus Dias Ruiz of possession of marijuana for sale (Health & Saf. Code, § 11359) and cultivation of marijuana (Health & Saf. Code, § 11358) and found, in connection with both counts, that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
The trial court sentenced defendant to state prison for an aggregate term of three years, that is, the midterm of two years for the possession for sale offense plus one year for the arming enhancement. For cultivation and the enhancement, defendant received a concurrent three-year term.
Defendant appeals, contending (1) his sentence for cultivation and the enhancement should have been stayed pursuant to Penal Code section 654 and (2) defense counsel rendered ineffective assistance in failing to object to the evidence of the details of defendant's prior arrest and conviction of two counts of misdemeanor possession of marijuana. We will affirm.
For purposes of showing defendant's identity and common plan and scheme, the prosecutor introduced evidence of an incident which occurred in 2003:
While driving on a dirt road in a remote location in the forest around dusk on October 25, 2003, California Department of Fish and Game Warden Dewayne Little approached a pickup truck with a camper shell traveling slowly in the opposite direction. Little stopped and spoke with the pickup truck's driver and his two front seat passengers. All were Hispanic male adults. Defendant Jesus Dias Ruiz sat in the middle seat. The far right passenger sat holding a rifle with the barrel pointed towards the roof of the truck and the butt of the rifle in the seat or in the passenger's lap. Little inspected the rifle and found it had a clip inserted but had no live round in the chamber. Little detected the smell of non-burning, recently harvested marijuana, took possession of the rifle, had the driver get out with the keys and radioed dispatch for backup. The driver and front seat passengers (including defendant) as well as two men who emerged from the truck bed then fled.
In the pickup truck, officers found 25 pounds of marijuana bud in two boxes and about two pounds of marijuana bud and shake in two separate plastic bags, all of which had been recently harvested, a loaded handgun, two cell phones, one of which had the name of Ruiz on the screen, two licenses in the name of Francisco Perez Arteaga, also known as Roberto Dias Ruiz, and paperwork for the registered owner (Ruiz Labor Contractors).
A grow site was found near Antelope Creek, about three miles from where the pickup truck was stopped. Only 11 plants remained at the site which had been harvested. A search of a nearby camp (Lyman Springs) revealed 116 pounds of marijuana individually packaged in bags, a shotgun and indicia with the name of the Ruiz Labor Contractors.
On August 16, 2004, while fishing on Antelope Creek, Timothy Green and Jeff Brusatori noticed trash, clothing and laundry detergent near the creek. Investigating their discovery, the two men found a trail leading up from the creek only to be confronted by defendant, holding an assault rifle and yelling, "`No trail, no trail, no trail.'" Although not pointed at anyone, defendant held the gun within six inches of Green's stomach. A younger man with defendant came up behind Green and Brusatori. Defendant claimed he was bear hunting. Green knew it was not hunting season but fearing he and Brusatori had discovered a marijuana cultivation site, they engaged in conversation with defendant and the other man for a short time about the colors of the bears and then left. After hiking out of the area the next day, Green notified law enforcement on August 25.
On September 1, 2004, Green accompanied law enforcement officers back to the area where defendant had confronted Green and Brusatori. It was the same location as the 2003 grow site and was located 10 to 20 yards up the trail from the point Green had been confronted by defendant. The 2004 grow site consisted of a large growing area and, a short distance away and connected by a foot path, a smaller site. Officers seized more than 3,000 plants.
A search of the Ruiz camp (Lyman Springs), located three miles from the grow site, revealed paperwork and ammunition. A receipt for a recycling business reflected a vehicle license plate number of "38LX253." Because California plate numbers for passenger cars have a letter instead of a number in the second position, officers used a "B" for the "8" and found that the car was registered to defendant.
The parties stipulated that no fingerprints lifted from the grow site and camp matched defendant's and that the plants seized constituted a usable amount of marijuana.
Brusatori was called by the defense. When he had previously been shown a photographic lineup, he chose a photo other than defendant's and was 90 percent certain. He recalled but was not certain that the person with the rifle had a gold tooth. On cross-examination, he testified that defendant looked like the person who confronted them on the trail.
Defendant testified. In 2003 and 2004, he lived at Lyman Springs campsite and worked as a woodcutter. He denied ever seeing Green or Brusatori. He denied having ever carried a rifle. On cross-examination, he admitted Roberto Ruiz was his brother but did not know his brother went by the name of Francisco Arteaga. Jose Ruiz, another brother of defendant's, ran the Ruiz Labor Contractors. He denied ever seeing any marijuana at Lyman Springs or in the woods in 2003 or 2004. He denied having been in the stopped pickup truck with the 25 plus pounds of marijuana in 2003. After an unreported bench conference, the prosecutor asked defendant about his plea to possession of more than an ounce of marijuana as a result. Defendant admitted that he had entered a plea but explained that he did so in order to be released from custody so he could take care of his family.
The court imposed a concurrent term for the cultivation offense and the arming enhancement. The court found that "the crimes and their objectives were similar [and] were committed at generally the same time and place so as to indicate a single period of aberrant behavior." Defendant contends Penal Code section 654 mandated a stay on cultivation and the enhancement. Defendant argues "the cultivation and possession convictions were part of a[n] indivisible scheme to grow marijuana for sale."
Penal Code section 654 provides, in relevant part, as follows: "(a) 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. . . ." (People v. Britt (2004) 32 Cal.4th 944, 951-952.) That question is for the trial court and its answer will be upheld where substantial evidence supports it. (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
Citing People v. McDaniel (1957) 154 Cal.App.2d 475 (McDaniel), defendant argues that the undisputed evidence shows that his only possession of marijuana was that which he had while engaged in guarding the cultivated site. In McDaniel, supra, 154 Cal.App.2d 475, the defendant was convicted of possessing the same marijuana plants he cultivated. McDaniel concluded that the defendant's possession was incidental to his cultivation so that he could not be convicted of both. McDaniel reversed the defendant's conviction for possession which "merged" into the offense of cultivation and ordered it dismissed. (Id. at pp. 485-486.)
Assuming for the sake of argument that McDaniel is correctly decided, it is distinguishable. Here, defendant was convicted of cultivating over 3,000 plants and possession of marijuana for sale. Although there was no other possession of marijuana, defendant entertained two separate objectives: to cultivate marijuana and to sell it. We find People v. Goodall (1982) 131 Cal.App.3d 129 (Goodall) instructive.
In Goodall, the defendants were convicted of and sentenced to terms for possession of piperidine and cyclohexanone with intent to manufacture phencyclidine (PCP), possession of PCP for sale, and manufacturing PCP. (Goodall, supra, 131 Cal.App.3d at pp. 135-136, 146, fn. 6.) Goodall rejected the defendants' assertion that one or more of the terms should have been stayed under Penal Code section 654, stating: (Id. at pp. 147-148.)
Cultivation of marijuana and possession of marijuana for sale is analogous to the manufacture of PCP and the possession of PCP for sale. Here, officers found over 3,000 plants in two grow sites connected by a foot path. The record supports the trial court's implied finding that defendant entertained separate intents in cultivating the marijuana and in possessing the marijuana for sale. No violation of section 654 has been shown.
Defendant contends counsel rendered ineffective assistance in failing to object to the evidence related to the 2003 incident to...
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