P. v. Berry

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Filed 8/5/02 P. v. Berry CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK KING BERRY,
Defendant and Appellant.
C034405
(Super. Ct. No.
62-7341)
During a probation search, police officers discovered
defendant Frank King Berry in possession of methamphetamine and
drug paraphernalia. An amended information charged defendant
with possession of methamphetamine for sale (Health & Saf. Code,
§ 11378); possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)); possession of marijuana for sale (Health &
Saf. Code, § 11359); maintaining a place for selling or using
controlled substances (Health & Saf. Code, § 11366); possession
of more than 28.5 grams of marijuana (Health & Saf. Code,
§ 11357, subd. (c)); possession of an injection device (Health &
Saf. Code, § 11364); and unauthorized possession of a hypodermic
needle or syringe (Bus. & Prof. Code, § 4140).

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Following a jury trial, the court sentenced defendant to
64 years to life. Defendant appeals, contending: (1) the court
erred in admitting evidence of a prior conviction,
(2) defendant’s conviction for possession of more than one ounce
of marijuana is barred as a lesser included offense, (3) the
prosecution failed to prove defendant’s prior convictions in
Oregon constituted strikes under California law, and
(4) defendant’s sentence constitutes cruel and unusual
punishment. We shall conclude defendant’s Oregon prior
convictions cannot support enhancements for prior serious
felonies and therefore reverse and remand with directions that
the trial court strike its finding of two prior strikes and
resentence defendant accordingly. We also conclude that,
pursuant to Penal Code section 654, defendant’s conviction for
possession of 28.5 grams of marijuana should be stayed. In all
other respects, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A neighbor of Michael Jay Douglas noticed a daily stream of
visitors, who stopped briefly at the Douglas residence and then
drove away in their cars. On March 2, 1999, police officers
conducted a probation search of the residence.
The officers knocked on the door and heard whispering
inside announcing their arrival. The officers heard footsteps
and the sound of furniture being moved inside the residence.
Following a second knock, Douglas opened the door, appearing
very nervous.

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The officers entered the residence and found several
individuals, including defendant, inside. During the search,
officers found various containers of usable quantities of
methamphetamine and approximately 125 grams of marijuana. The
officers also uncovered glass “crank” pipes, marijuana pipes,
baggies, a scale, Vitablend, “pay/owe” sheets, and syringes.
As the officers searched the premises, three individuals
arrived at the residence. One of the arrivals, upon entering
the house, possessed a bag containing methamphetamine residue.
She admitted purchasing the methamphetamine from defendant
earlier that day and that she had returned to purchase more.
She identified defendant as “Bud.”
The telephone rang many times during the search. Six
times, the callers asked for “Bud.” One of the officers
involved in the search knew defendant as “Bud.” Outside the
residence, officers found a backyard covered with dozens of
shallow holes six to 12 inches in depth.
Defendant admitted ownership of a red box containing
methamphetamine, syringes, and plastic baggies containing
powdery residue. He told police he was “just crashing” at the
residence. Officers had searched the residence within the past
three months, when Douglas was the only resident. No contraband
was found during the prior search.
An amended information charged defendant with possession of
methamphetamine for sale, possession of methamphetamine,
possession of marijuana for sale, maintaining a place for
selling or using controlled substances, possession of more than

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28.5 grams of marijuana, possession of an injection device, and
unauthorized possession of a hypodermic needle or syringe. The
information also alleged two prior serious felony convictions
within the meaning of Penal Code section 667, subdivisions (b)
through (i); three prior narcotics convictions within the
meaning of Health and Safety Code section 11370.2,
subdivision (a); six prior prison terms within the meaning of
Penal Code section 667.5, subdivision (b); and that defendant
was statutorily ineligible for probation pursuant to Penal Code
section 1203, subdivision (e)(4).
A jury trial followed. Defendant admitted the prior prison
term and prior conviction allegations. The jury found defendant
guilty on all counts and found true the prior felony strike
allegations.
The trial court sentenced defendant to 64 years to life:
25 years to life for possession for sale of methamphetamine; a
consecutive term of 25 years to life for possession of
methamphetamine, stayed pursuant to Penal Code section 654; a
consecutive term of 25 years to life for possession of marijuana
for sale; a concurrent term of 25 years to life for maintaining
a place where drugs were sold or used; concurrent terms of six
months each for possession of more than 28.5 grams of marijuana,
possession of an injection device, and unauthorized possession
of a hypodermic needle or syringe; plus three consecutive three-
year enhancements for prior narcotics convictions (Health & Saf.
Code, § 11370.2) and five consecutive one-year enhancements for
prior prison terms (Pen. Code, § 667.5, subd. (b)). The court

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ordered defendant to pay a restitution fine of $10,000 pursuant
to Penal Code section 1202.4 and a $10,000 restitution fine
pursuant to Penal Code section 1202.45. Defendant filed a
timely notice of appeal.
DISCUSSION
I. Evidence of Prior Conviction
Defendant contends the court erred in admitting evidence
concerning a 1997 arrest for possession of methamphetamine
for sale. The evidence was admitted under Evidence Code
section 1101, subdivision (b). Defendant also argues the
evidence should have been excluded under Evidence Code
section 352.
A. Facts
In August 1997 police officers searched defendant in his
motel room. The motel room was filled with methamphetamine
smoke, and officers found defendant in possession of three
ounces of packaged methamphetamine, crank pipes, a scale,
packaging materials and a mirror. Officers found pay/owe sheets
in a vehicle associated with another occupant of the room, in a
bag owned by defendant.
Defendant admitted purchasing one-quarter pound of
methamphetamine, selling one ounce, and possessing the remaining
three ounces. He also informed officers of cash and additional
drugs buried behind the motel although a subsequent search
failed to uncover any drugs or cash. Several of the same names
were listed on both 1997 and 1999 pay/owe sheets.

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Prior to trial in the present case, defendant’s counsel
objected to the introduction of evidence of defendant’s 1997
prior conviction for possession of methamphetamine for sale.
Counsel argued the evidence bore no relevance to the current
charges and was unduly prejudicial.
The court overruled the objection, finding “[p]rimarily the
relevance would be with regard to intent.” The court further
found the probative value of the prior conviction outweighed any
prejudice. The prosecution presented the evidence of the 1997
arrest and conviction.
B. Law
Under Evidence Code section 1101, evidence of uncharged
misconduct is inadmissible to prove the criminal disposition of
a defendant. However, such evidence is admissible to prove some
relevant fact such as identity or common design, plan, or
scheme. The admission of uncharged misconduct lies within the
trial court’s discretion. The trial court must weigh the
probative value of the evidence against its prejudicial effect.
The trial court, in reviewing the admissibility of evidence of
other offenses, must consider: (1) the materiality of the fact
to be proved or disproved, (2) the probative value of the
proffered evidence to prove or disprove the fact, and (3) the
existence of any policy or rule requiring exclusion despite
relevance. (People v. Daniels (1991) 52 Cal.3d 815, 856
(Daniels).) We review such evidence under an abuse of
discretion standard. (People v. Memro (1995) 11 Cal.4th 786,
864 (Memro).)

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The trial court admitted the evidence of the 1997 arrest to
show intent. The court noted that if evidence of defendant’s
prior crime shed “great light on the defendant’s intent at the
time he committed that offense, it may lead to a logical
inference of his intent at the time he committed the charged
offense . . . .” Defendant disputes this assertion and contends
“[t]here was no factual dispute whether the methamphetamine
found inside the residence was possessed for sale.” However,
defendant pled not guilty to the charge of possessing
methamphetamine for sale, putting his intent, an element of the
crime, at issue. (Memro, supra, 11 Cal.4th at p. 864; Daniels,
supra, 52 Cal.3d at pp. 857-858.) The court found the earlier
arrest material as to defendant’s intent, a determination we
cannot fault.
As to the second consideration, the probative value of the
evidence to prove the fact, we find the probative value very
high. Defendant’s prior arrest stemmed from a search that
revealed three ounces of methamphetamine, a scale, packaging
materials, and crank pipes in his motel room. Officers found
pay/owe sheets in a bag belonging to defendant. Several names
listed on the 1997 sheets were identical to those found in the
1999 search.
Defendant argues the 1997 evidence was not relevant to
prove he possessed for sale the methamphetamine found in the
1999 search. However, in addition to the same customers’ names
on pay/owe sheets, one of the individuals arrested with
defendant in the present case testified she had purchased drugs

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from him earlier the same day and had returned to purchase more.
The telephone rang frequently, with callers asking for “Bud,” a
name by which defendant was known. In addition, defendant
admitted owning a box containing drugs and packaging materials.
All this evidence, in addition to the duplicate names on
the pay/owe sheets, reveals “a direct relationship between the
prior offense and an element of the charged offense . . . .”
(Daniels, supra, 52 Cal.3d at p. 857.) The 1997 offense is
“logically, naturally, and by reasonable inference relevant to
prove” defendant’s intent in the current offense. (Id. at
p. 856.)
However, strong probative value does not end the trial
court’s inquiry. The trial court must also weigh the probative
value of the evidence against its prejudicial impact.
(People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt); Evid.
Code, § 352.) In Ewoldt, the Supreme Court noted prejudicial
impact increases when other acts do not result in criminal
convictions. (Ewoldt, supra, 7 Cal.4th at p. 405.)
Here, the other act, the 1997 search of defendant’s motel
room, resulted in defendant’s arrest and conviction. Therefore,
there could be no question in the jury’s mind that the other
conduct occurred. Nor was the evidence surrounding the 1997
arrest inflammatory as compared to the 1999 arrest: Both
incidents were quite similar. The probative value of the 1997
evidence, as previously discussed, was high. Although defendant
decries the evidence as “highly prejudicial,” the trial court
properly balanced the probative value of the evidence against

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its potential prejudicial effect. We find no abuse of
discretion in the trial court’s conclusion.
II. Lesser Included Offense
Defendant argues his conviction for possession of more than
28.5 grams of marijuana (count five) is precluded as a lesser
included offense of his conviction for possession of marijuana
for sale (count three). The trial court concluded the charges
in question were based on the same quantity of marijuana but
declined an instruction that count five was a lesser included
offense of count three. The court concluded defendant could be
convicted of both offenses, but sentencing on both was barred by
Penal Code section 654.
The jury convicted defendant of both possession for sale
and possession of marijuana in counts three and five. The court
sentenced defendant to a consecutive sentence of 25 years to
life for count three and a concurrent term of six months for
count five.
Defendant argues this sentence was improper since
possession of more than an ounce of marijuana is a lesser
included offense of possession for sale. Defendant misconstrues
the facts in this case.
“‘“The test in this state of a necessarily included offense
is simply that where an offense cannot be committed without
necessarily committing another offense, the latter is a
necessarily included offense.”’” (People v. Ortega (1998)
19 Cal.4th 686, 692.) Here, the jury convicted defendant of
possession of marijuana for sale and possession of more than

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28.5 grams of marijuana. Unlike the crime of possession of more
than 28.5 grams of marijuana, the crime of possession of
marijuana for sale can be established by possession of less than
28.5 grams of marijuana. Therefore, since the crime of
possession of marijuana for sale may be committed without
necessarily committing the crime of possession of more than
28.5 grams of marijuana, the latter is not a lesser included
offense of the former.1
However, although we find the convictions for possession of
more than 28.5 grams of marijuana and possession of marijuana
for sale appropriate, we find Penal Code section 654 prohibits
concurrent sentences for both convictions. Penal Code
section 654 states, in part: “(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. An
1 Defendant argues the prosecution conceded defendant’s
convictions on counts three and five were based upon possession
of the same quantity of marijuana and therefore convictions on
both counts were prohibited. Defendant relies on People v.
Saldana (1984) 157 Cal.App.3d 443, 453-458 (Saldana). In
Saldana, the defendant was charged with possession of heroin for
sale (Health & Saf. Code, § 11351), and the court failed to
instruct on the lesser included offense of simple possession of
heroin. The appellate court reversed, finding a lesser included
instruction warranted where the charged offense cannot be
committed without necessarily committing another offense.
(Saldana, supra, 157 Cal.App.3d at p. 454.) As discussed above,
that is not true in the present case.

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acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.”
Here, the police search uncovered two bags of marijuana
containing a total of approximately 125 grams. The court
sentenced defendant to a consecutive term of 25 years to life
for possession of marijuana for sale and a concurrent term of
six months for possession of the same 28.5 grams of marijuana.
Under Penal Code section 654, the latter term should be stayed.
III. Oregon Prior Convictions
Defendant contends his Oregon prior convictions for
burglary and attempted burglary do not constitute strikes under
California law. Under Oregon law, defendant asserts, the
burglary convictions do not require the requisite intent to
commit theft. Therefore, the prosecution failed to prove the
Oregon prior convictions constituted qualifying prior strikes
under the California “three strikes” law. (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12.)
Penal Code sections 667, subdivision (d)(2) and 1170.12,
subdivision (b)(2) provide that, for the purposes of the three
strikes law, a prior conviction of a particular felony includes
“a conviction in another jurisdiction for an offense that
includes all of the elements of the particular felony as defined
in subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7.” Section 1192.7, subdivision (c)(18) includes
as a “serious felony” a “[b]urglary of an inhabited dwelling
house” or “the inhabited portion of any other building.”

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The amended information charged defendant with two prior
convictions in Oregon: a 1986 violation of Oregon Revised
Statutes section 164.225, attempted first degree burglary of an
inhabited dwelling, and a 1991 violation of Oregon Revised
Statutes section 164.225, first degree burglary of an inhabited
dwelling. At trial, the prosecution offered certified copies of
the charging documents and the judgments as evidence of the
Oregon prior convictions. The trial court found both prior
convictions qualified as strikes and imposed consecutive
sentences of 25 years to life imprisonment in counts one and
three.
The Oregon burglary statutes provide, in pertinent part:
“(1) A person commits the crime of burglary in the second degree
if the person enters or remains unlawfully in a building with
intent to commit a crime therein.” (Or. Rev. Stat. § 164.215.)
“(1) A person commits the crime of burglary in the first degree
if the person violates ORS 164.215 and the building is a
dwelling, or if in effecting entry or while in a building or in
immediate flight therefrom the person: [¶] (a) Is armed with a
burglar’s tool as defined in ORS 164.235 or a deadly weapon; or
[¶] (b) Causes or attempts to cause physical injury to any
person; or [¶] (c) Uses or threatens to use a dangerous
weapon.” (Or. Rev. Stat. § 164.225.)
In determining whether an out-of-state prior is a serious
felony, “the trier of fact may consider the entire record of the
proceedings leading to imposition of judgment on the prior
conviction to determine whether the offense of which the

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defendant was previously convicted involved conduct which
satisfies all of the elements of the comparable California
serious felony offense.” (People v. Myers (1993) 5 Cal.4th
1193, 1195.) “‘[W]hen the record does not disclose any of the
facts of the offense actually committed’ [citation], a
presumption arises that the prior conviction was for the least
offense punishable.” (People v. Johnson (1991) 233 Cal.App.3d
1541, 1548.)
Penal Code section 459 defines burglary as an entry “with
intent to commit grand or petit larceny or any felony . . . .”
Section 460 defines first degree burglary as the burglary “of an
inhabited dwelling . . . .”
In People v. Marquez (1993) 16 Cal.App.4th 115 (Marquez),
the appellate court considered whether an Oregon first degree
burglary conviction meets the California criteria to qualify as
a strike. The Marquez court reasoned: “The Oregon statutory
definition of first degree burglary does not necessarily support
enhancement of defendant’s sentence pursuant to Penal Code
section 667 because a first degree burglary conviction can be
obtained in Oregon without a finding that the perpetrator
intended to commit grand larceny, petit larceny or a felony at
the time of the entry. [Citations.] Since the statutory
elements are insufficient to support findings that the offenses
were serious felonies, the findings can only be upheld if the
records of the prior convictions establish that defendant had at
least the specific intent to commit larceny under California
law.” (Marquez, supra, 16 Cal.App.4th at p. 123.)

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The Marquez court then looked to the records of the
defendant’s Oregon convictions and found: ”The Oregon
indictments charged that defendant entered the dwellings ‘with
the intent to commit the crime of theft therein . . . .’ If the
statutory definition of theft under Oregon law were the same as
the California statutory definition of theft, the indictments
would establish that defendant had been convicted of serious
felonies.” (Marquez, supra, 16 Cal.App.4th at p. 123.)
However, the court pointed out the two states’ statutory
definitions of theft differ. Under California law, the mens rea
of theft is the specific intent to permanently deprive the owner
of his or her property. (Pen. Code, § 484; People v. Jaso
(1970) 4 Cal.App.3d 767, 771.) Under Oregon law, the mens rea
of theft is the intent “to deprive another of property or to
appropriate property [of another’s] . . . .” (Or. Rev. Stat.
§ 164.015.) Oregon law defines “deprive another of property” as
“Withhold property of another or cause property of another to be
withheld from that person permanently or for so extended a
period or under such circumstances that the major portion of its
economic value or benefit is lost to that person . . . .” (Or.
Rev. Stat. § 164.005(2)(a).)
The court in Marquez concluded: “The intent to acquire, or
deprive an owner of, ‘the major portion of the economic value or
benefit’ of his or her property is not equivalent to the intent
to permanently deprive an owner of his or her property. A
person who intends only to temporarily deprive an owner of
property, albeit while acquiring or depriving the owner of the

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main value of the property, does not intend to permanently
deprive the owner of the property and therefore does not have
the intent to commit theft, as that crime is defined under
California law. Since such an intent would constitute ‘the
intent to commit the crime of theft’ under Oregon law but not
under California law, the records of defendant’s Oregon
convictions do not establish that those convictions were serious
felonies within the meaning of Penal Code section 1192.7,
subdivision (c)(18).” (Marquez, supra, 16 Cal.App.4th at
p. 123.)
In the present case, the Attorney General, confronted by
Marquez, states merely he “respectfully disagrees with that
court’s reasoning. Indeed, a defendant’s intent to acquire or
deprive an owner of the ‘major portion of the economic value or
benefit’ of his or her property essentially amounts to a
permanent deprivation of that person’s property. In the instant
case, there was no evidence that [defendant] can point to which
shows that [defendant’s] prior burglary convictions were based
upon an intent to only temporarily deprive someone of their
property.” The Attorney General cites People v. Riel (2000)
22 Cal.4th 1153, 1205-1206 (Riel).)
In Riel, supra, 22 Cal.4th 1153, a defendant challenged two
prior prison term enhancements (Pen. Code, § 667.5) based on two
Washington convictions for burglary. (Riel, supra, 22 Cal.4th
at p. 1203.) The defendant argued it was possible to commit
burglary under Washington law without committing a burglary, or
any felony, in California. (Ibid.) The appellate court agreed

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but found the prosecution presented sufficient evidence
regarding the nature of the Washington burglaries to prove the
defendant’s actual Washington crimes constituted burglary under
California law. This evidence included the defendant’s
statements made as part of his guilty pleas. The court
observed: “These statements clearly show that the burglary
convictions were based on the intent to commit theft rather
than some other, nonfelonious, crime.” (Id. at p. 1205.) In
the present case, we have only certified copies of the charging
documents and judgments; the prosecution offered no evidence
sufficient to establish defendant’s intent to permanently
deprive his victims of their property.
Because neither the statutory definition of the Oregon
offenses nor the underlying facts of the offenses establish
that they correspond to any serious or violent felony under
California law, the trial court’s finding that the offenses
qualify as strikes was erroneous.
IV. Cruel and Unusual Punishment
Finally, defendant contends his prison term of 64 years to
life constitutes cruel and unusual punishment. This contention
must also fail.
Defendant did not raise this issue in the trial court.
Accordingly, it is waived. (People v. Scott (1994) 9 Cal.4th
331, 354; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Nonetheless, to forestall an ineffective assistance of counsel
claim, we shall address this issue on its merits.

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The Eighth Amendment to the federal Constitution “‘forbids
only extreme sentences that are “grossly disproportionate” to
the crime.’” (People v. Cartwright (1995) 39 Cal.App.4th 1123,
1135.) A punishment may violate the California Constitution if
“it is so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental
notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410,
424 (Lynch).)
Under Lynch, the court must examine the nature of the
offense and the offender, compare the challenged penalty to that
proscribed in California for more serious crimes, and compare
the penalty with the punishment in other jurisdictions for the
same offense. (Lynch, supra, 8 Cal.3d at pp. 425-428.)
In his argument, defendant addresses none of the factors
enumerated in Lynch; instead, defendant simply quotes dicta from
several cases discussing the possibility of a sentence
constituting cruel and unusual punishment. Defendant appears to
base his argument solely on the length of his sentence.
However, as the People point out, defendant is not being
punished merely on the basis of this current offense but on the
basis of his recidivist behavior.
California statutes imposing more severe punishment on
habitual criminals have long withstood constitutional challenge.
(See People v. Weaver (1984) 161 Cal.App.3d 119, 125-126.) It
is a well-settled principle that the Legislature may properly
punish recidivists, even those who have not committed the very
worst offenses, more harshly than first-time offenders. (Ibid.)

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“Recidivism justifies the imposition of longer sentences for
subsequent offenses.” (People v. Cooper (1996) 43 Cal.App.4th
815, 825.)
Defendant is just such a recidivist. His adult criminal
history extends back to 1974, when he was not quite 20 years old
and was convicted of cultivating marijuana. (Health & Saf.
Code, § 11358.) His criminal activities continued with a
conviction in 1975 for burglary. (Pen. Code, § 459.) Later, in
1980, he sustained a conviction in Arizona for offering to sell
dangerous drugs. In 1986 he suffered a conviction for first
degree theft. (Or. Rev. Stat. § 164.055.) In 1989 and 1990 he
was convicted of attempted burglary and theft. (Or. Rev. Stat.
§ 144.350.) In 1991 he sustained a conviction for first degree
burglary. (Or. Rev. Stat. § 164.225.) In 1994 and 1997 he was
convicted of possession for sale of a controlled substance.
(Health & Saf. Code, § 11378.)
Defendant’s punishment is based on the fact that he is a
repeat offender of serious felonies who has continued to commit
crimes. Given the circumstances of defendant’s past criminality
and the current serious offenses, the sentence imposed is
neither grossly disproportionate to the crimes committed nor
does it “shock[] the conscience and offend[] fundamental notions
of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.)
DISPOSITION
The judgment of conviction is affirmed. The matter is
remanded to the trial court with directions to strike its
finding that the Oregon offenses constitute “strikes” and to

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recalculate defendant’s sentence accordingly. The court shall
also stay the sentence for possession of 28.5 grams of
marijuana.
RAYE , J.
We concur:
NICHOLSON , Acting P.J.
HULL , J.

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