People v. Porter

California Court of Appeal Jun 29, 1998 No. No. E020448Published

Before: McKinster

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Holding. The court held that the substantial involvement requirement for conspiracy enhancements under Health and Safety Code section 11370.2, subdivision (e), applies only to the current conspiracy conviction and not to prior conspiracy convictions used for sentence enhancement.

Issues

Whether Penal Code section 654 prohibits enhancements for multiple federal prior convictions committed during the same course of conduct.
Whether Health and Safety Code section 11370.2, subdivision (e) requires a finding of substantial involvement for prior conspiracy convictions used as enhancements.

Disposition. affirmed

Quotations verified verbatim against the opinion

“subdivision (e) applies only to the defendant’s level of participation in the instant conspiracy, not the prior conspiracy conviction.”

“If the defendant has suffered prior convictions for conspiracy, those prior convictions will support the enhancements whether or not the defendant was substantially involved in those prior conspiracies.”

Opinion

McKINSTER, J. A defendant convicted of two drug offenses appeals from the judgment against him. We affirm.

Factual and Procedural Background

In the first count of the information, the defendant was charged with manufacturing phencyclidine (PCP) in violation of Health and Safety Code section 11379.6, subdivision (a).1 In the second count, he was charged with possessing piperidine and cyclohexanone, or a product of them, with the intention of manufacturing PCP, in violation of section 11383, subdivision (b). In addition, the information alleged a variety of enhancements: two prior serious or violent felonies (Pen. Code, § 667); two federal convictions, which were alleged to justify enhancements under section 11370.2; and four failures to remain free of custody for five years after serving a prison term (Pen. Code, § 667.5, subd. (b)).

The defendant was found guilty as charged, and all the enhancement allegations were found to be true. After an unsuccessful motion for a new [252]trial, the defendant was sentenced to prison for 59 years to life. The term consisted of consecutive 25-year-to-life terms for both counts, plus nine years for the various enhancements.

Contentions

The defendant challenges the validity of the convictions on both counts, the denial of the new trial motion, and the enhancements regarding the prior federal convictions.

Discussion

A.-F.*

G. The Trial Court Did Not Err by Imposing Enhancements for the Two Federal Prior Convictions.

Pursuant to section 11370.2, subdivision (b), the trial court imposed separate three-year enhancements on both of the federal prior convictions. The defendant contends that the trial court erred in two respects.3

First, he contends that the trial court violated Penal Code section 654, because the two federal “offenses were committed at the same time and were the product of a single course of conduct.” However, he offers no citation to any evidence to support that factual allegation, even after that omission was noted by the People. Accordingly, the defendant has failed to demonstrate that Penal Code section 654 applies.

People v. Porter

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