P. v. Puckett

Filed 9/29/17 P. v. Puckett CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOUTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ELIZABETH J. PUCKETT,
Defendant and Appellant.
D070928
(Super. Ct. No. SCS282517)
APPEAL from a judgment of the Superior Court of San Diego County, Edward P.
Allard, III, Judge. Affirmed as modified; remanded with directions.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Susan
Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Elizabeth J. Puckett of transportation of heroine for sale (Health
& Saf. Code,1 § 11352, subd. (a); count 1); possession of heroin for sale (§ 11351;
count 2); and importing methamphetamine into the state (§ 11379, subd. (a); count 3).
The court deemed the sentence for count 1 to be the base term, with sentences for
counts 2 and 3 to be served concurrently.2 The court suspended imposition of the
sentence and granted Puckett formal probation with terms and conditions. The court
imposed a lab analysis fee under section 11372.5 in the amount of $615, consisting of
$50 for each conviction, $435 in penalty assessments, and $30 for a state surcharge. The
court also levied a drug program fee in the amount of $205 under section 11372.7,
comprised of a $50 base fine, penalty assessments of $145, and a $10 state surcharge.
Puckett appeals, contending the court erred in failing to stay her sentence on
counts 2 and 3 under Penal Code section 654. Puckett further argues that, because her
sentences for counts 2 and 3 should have been stayed, the trial court also erred in
ordering her to pay a $50 lab analysis fee for those two counts. Also, Puckett maintains
the penalty assessments imposed must be stricken because they are not authorized by
statute.
1 Statutory references are to the Health and Safety Code unless otherwise specified.
2 At the sentencing hearing, the court stated, "it is the judgment of the court as to
counts 1 and 2, the court's sentence on those counts to run concurrent with count 1 being
the lead count." The parties agree that the court intended for the sentence of count 1 to be
the base term and for counts 2 and 3 to be served concurrently. We agree.

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We agree that Puckett's sentence under count 2 should have been stayed and the
lab analysis fee for count 2 should have been stayed as well. We thus modify the
judgment accordingly and instruct the superior court to amend the order granting
probation consistent with this opinion. The judgment is affirmed in all other respects.
FACTUAL BACKGROUND
Prosecution
Puckett attempted to cross the border from Mexico into the United States at the
San Ysidro pedestrian border crossing. A border patrol agent asked her if she was
bringing anything from Mexico. Puckett responded in the negative. A canine officer
approached Puckett, and the canine alerted to Puckett's groin area. A pat down search of
Puckett disclosed a hard object in her groin area. As instructed by officers, Puckett took
off her pants and removed a stuffed condom from her vagina. Inside the condom were
plastic bags wrapped in black electrical tape. Three bags contained 75.5 grams of heroin.
A fourth bag contained 4.3 grams of methamphetamine.
Defense
Puckett testified in her own defense. She testified that she traveled to Tijuana and
was picked up by someone and taken to a house. She did not know any of the people she
interacted with in Mexico. She was handed a black wrapped object but did not know its
contents. She placed the black object into a condom and inserted it into herself. When
she returned to the United States, someone was supposed to pick up the object from her,
but she was arrested at the border.

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Puckett testified that she was a film maker and her action was to prove
"indifference to female genocide, a cultural cold war." She stated that she traveled down
to Mexico as part of her research. She also stated that she heard voices telling her what
to do and she sometimes had hallucinations. Puckett testified that she was not paid for
crossing the border. However, she admitted that she knew what she was doing was
illegal because it involved contraband.
DISCUSSION
I
PENAL CODE SECTION 654
"Penal Code section 654 precludes multiple punishment for a single act or
omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585,
591.) "Whether a course of criminal conduct is a divisible transaction which could be
punished under more than one statute within the meaning of [Penal Code] section 654
depends on the intent and objective of the actor." (People v. Saffle (1992) 4 Cal.App.4th
434, 438.)
Here, Puckett contends the court erred in failing to stay her sentence under counts
2 and 3. The People counter that this issue is not yet ripe because the court "generally
imposed a sentencing scheme but did not impose a specific prison term before it
suspended imposition of [Puckett's] sentence on all counts and granted [her] probation."
The People thus urge us to withhold considering this issue until/unless Puckett violates
probation and then faces the type of double punishment Penal Code section 654 prohibits.

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Yet, the People concede that duplicative prison sentences are not the only form of
punishment prohibited by Penal Code section 654. For example, statutory fines
constitute punishment within the meaning of Penal Code section 654. (See People v.
Hanson (2000) 23 Cal.4th 355, 361-363; People v. Tarris (2009) 180 Cal.App.4th 612,
627-628 (Tarris).) Because the trial court imposed lab analysis fees on each count and
Puckett claims that Penal Code section 654 prohibited such fees on counts 2 and 3, we
find this issue of the application of Penal Code section 654 in the instant case ripe for our
review.
"The trial court has broad latitude in determining whether [Penal Code] section
654, subdivision (a) applies in a given case." (People v. Garcia (2008) 167 Cal.App.4th
1550, 1564.) The absence of an express finding from a trial court concerning the
potential applicability of Penal Code section 654 does not mandate reversal on appeal.
Rather, the court reviews the trial court's implicit determination that Penal Code section
654 does not apply, and determines whether there is substantial evidence to support the
trial court's finding. (See People v. Osband (1996) 13 Cal.4th 622, 730-731; People v.
Andra (2007) 156 Cal.App.4th 638, 640.)
Regardless of the evidence below, the parties agree that Penal Code section 654
applies to preclude separate punishments for the same act of transporting for sale a
controlled substance and possessing it for sale. (See People v. Tinker (2013) 212
Cal.App.4th 1502, 1506 [holding Penal Code section 654 applies to convictions for
possession of heroin and transportation of same heroin for sale].) As such, the trial court

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erred in imposing separate sentences for Puckett's possession for sale and transportation
for sale of heroin (counts 1 and 2) on the same occasion. Therefore, under Penal Code
section 654, the sentence for count 2 and the corresponding lab analysis fee of $50 must
be stayed.
However, the parties disagree on the application of Penal Code section 654 to
count 3, which concerned a different drug, methamphetamine. Generally, Penal Code
section 654 " 'does not preclude multiple punishment for simultaneous possession of
various narcotic drugs.' " (People v. Monarrez (1998) 66 Cal.App.4th 710, 714
(Monarrez); see People v. Menius (1994) 25 Cal.App.4th 1290, 1296 ["[T]he possession
of different drugs or controlled substances not only may violate different statutes, but
may also be separately punished."].) Nevertheless, relying on In re Adams (1975) 14
Cal.3d 629 at page 635 (Adams), Puckett argues that a simultaneous transportation of a
variety of illegal drugs can be done with a single intent and objective, requiring a stay
under Penal Code section 654. Specifically, Puckett maintains there is a single intent and
objective where a defendant is delivering all of the drugs to a single recipient. (Ibid.)
Here, she claims she was acting as a "mule" who was contacted to smuggle drugs across
the border. She accepted a single package from someone in Mexico to be delivered to
one person in the United States.
Puckett's argument would be persuasive had the court stayed her sentence under
count 3. But the court did not, and we must review the trial court's factual finding,
whether implicit or explicit, in the light most favorable to the prevailing party, presuming

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the existence of every fact the factfinder could reasonably deduce from the evidence.
(See Tarris, supra, 180 Cal.App.4th at p. 627.) Thus, we are not concerned with what
evidence supports Puckett's theory that the trial court should have stayed the sentence
under count 3. Instead, we must determine if substantial evidence supports the court's
implicit finding that Penal Code section 654 did not apply to count 3. Puckett does not
address this issue whatsoever. For this reason alone, her argument fails.
Nonetheless, if we were to address this issue on the merits, we would find the
court's factual finding supported by substantial evidence. Puckett was found in
possession of 4.3 grams of methamphetamine (86 individual doses) and 75.5 grams of
heroin (1,510 individual doses). At trial, the prosecution's expert testified that both
drugs were possessed for sale. The expert also testified that Puckett had crossed the
border 24 times in 2014, 12 times in 2015, and four times in 2016, before she was
arrested in the instant matter. The expert opined that a person's multiple border crossings
was an indication of the person's involvement in drug trafficking. The expert testified
that he had seen drug smugglers who do not work with drug cartels, but instead, smuggle
drugs from themselves and their friends or to sell to their community networks. Thus,
because of the quantity and quality of drugs involved, it is reasonable for the trial court to
find the drugs were not intended for any one person as opposed to a multitude of
customers. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Further, we are not persuaded by Puckett's reliance on Adams, supra, 14 Cal.3d
629. In that case, the defendant transported five different controlled substances that he

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intended to deliver to one specific individual in a single transaction. (Id. at p. 632.) The
California Supreme Court held that defendant could be punished only once for
transporting the controlled substances because the simultaneous transportation of
multiple substances was motivated by a single objective. (Id. at p. 635.) The court,
however, distinguished the facts before it from cases involving possession of multiple
substances and declined to disapprove cases holding that multiple punishments may be
imposed for possession of multiple substances. (Ibid.)
Here, the only evidence that Puckett was going to give both the heroin and
methamphetamine to a single person in the United States is her own, uncorroborated,
testimony. Yet, as we discuss above, the evidence at trial did not establish that Puckett
possessed the heroin and methamphetamine with the intent to supply it to one person in a
single transaction. Based on the amount of drugs Puckett possessed, the fact that she had
two different types of drugs, and her history of border crossings, the court easily could
find she intended to make multiple sales of the narcotics she possessed. In other words,
Puckett did not commit counts 1 and 3 as an indivisible course of conduct. As the court
noted in Monarrez, "Adams simply does not deal with the case in which the defendant
has been found to possess more than one particular illegal drug, or possess it with the
intent to sell to a presumptively large number of buyers." (Monarrez, supra, 66
Cal.App.4th at p. 714.)
In summary, we are satisfied that substantial evidence supports the trial court's
finding that Penal Code section 654 did not apply to count 3. "[D]ifferent drugs are

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directed at different buyers--in some cases, at different classes of buyers--and represent
different dangers to society. It would be absurd to hold that a criminal who deals in one
contraband substance can expand the scope of his inventory without facing additional
consequences." (People v. Menius, supra, 25 Cal.App.4th at p. 1297.) Accordingly, the
court did not err in sentencing Puckett to a concurrent sentence under count 3 or levying a
$50 lab analysis fee under that count as well.
II
THE PENALTY ASSESSMENTS ADDED TO THE LAB ANALYSIS
FEE AND DRUG PROGRAM FEE
Puckett next argues the trial court erred in adding penalty assessments to the lab
analysis fee (§ 11372.5) and drug program fee (§ 11372.7). She contends the statutes do
not authorize the addition of penalty assessments because penalty assessments may only
be added to punitive fines and the lab analysis and drug program fees are not fines, but
nonpunitive fees. We recently addressed this very issue in People v. Alford (2017) 12
Cal.App.5th 964 (Alford). In that case, we concluded that a criminal lab fee under
section 11372.5 and a drug program fee under section 11372.7 are subject to penalty
assessments. (Alford, supra, at pp. 967, 977.)
Puckett requests that we reconsider our determination in Alford in light of the
legislative history of section 11372.5. There is nothing in the legislative history that
leads us to believe we reached the incorrect conclusion in Alford. Thus, for the reasons

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set forth in Alford, supra, 12 Cal.App.5th at pages 974 through 977, we conclude the trial
court did not err in assessing penalties to the lab analysis fee and the drug program fee.
DISPOSITION
The judgment is affirmed as modified, and the matter is remanded with directions
to the trial court to amend the order granting probation consistent with the views
expressed in this opinion.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.

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