Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF116743A, Richard J. Oberholzer, Judge.
A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
INTRODUCTION
Appellant Fernando Carbajal was convicted of one count of possession of methamphetamine for sale, based on the discovery of six bindles of methamphetamine on his rented ranch property. On appeal, he contends defense counsel was prejudicially ineffective for failing to argue that his pretrial statements should have been electronically recorded. He also contends the court made inappropriate comments when it instructed the jury as to note taking and requesting read backs of testimony. Finally, he asserts another issue of ineffective assistance for counsel’s failure to object to rebuttal testimony that allegedly implicated his credibility. We will affirm.
STATEMENT OF THE CASE
On December 7, 2006, an information was filed in the Superior Court of Kern County charging appellant with count I, possession of methamphetamine for sale (Health & Saf. Code, § 11378). Appellant pleaded not guilty.
On January 29, 2007, appellant’s jury trial began. On January 31, 2007, appellant was found guilty. On February 28, 2007, appellant was sentenced to the lower term of 16 months in state prison.
On March 5, 2007, appellant filed a timely notice of appeal.
FACTS
Around 3:00 p.m. on October 27, 2006, Bakersfield Police Officer Robert Grady and members of the Kern Narcotics Enforcement Team arrived at a ranch property near Weedpatch Highway and Blackburn Road in Buttonwillow to conduct an investigation. The property was jointly rented by appellant and Ignacio Duenas Reyes. Neither man lived on the property and there was no residence on the premises. Duenas kept farm animals on his half, while appellant used the other half for his business of making and pouring pottery. A shed was on appellant’s portion of the property, and he also kept some farm animals there.
Appellant was the only person on the property when the officers arrived, and he was detained. A blue Suburban SUV was parked near appellant’s location. A red truck was parked further to the east of appellant’s location, and it appeared to be inoperable.
Officer Grady contacted appellant but determined he did not speak English. Grady asked Officer Luis Vidales, a team member, to act as interpreter. Officer Grady had used Vidales as an interpreter on many occasions and Vidales had always been a dependable interpreter. Officer Vidales was certified as a Spanish interpreter and had served as an English/Spanish interpreter for investigations on over a hundred occasions. For the entirety of their investigation on the ranch property, Officer Grady and appellant communicated with each other only through Vidales’s translations. Vidales testified he interpreted appellant’s statements into English “faithfully and truthfully.”
Luis Vidales, who was a probation officer when he translated for Officer Grady but had become a parole agent by the time of the instant trial, will be referred to throughout as “Officer” Vidales.
Officer Grady, through Officer Vidales, advised appellant that the officers were going to search the property for narcotics. Appellant replied, through Vidales, “[g]o ahead and search. There’s nothing here.” Grady asked appellant if the blue Suburban SUV belonged to him. Appellant said yes. Appellant sat down while the officers searched the property. Appellant did not display any objective symptoms of being under the influence.
The officers apparently searched the property pursuant to a warrant obtained during the course of a narcotics investigation, which involved a confidential informant purchasing drugs on that property. The details of the investigation and existence of the warrant were excluded from trial, and it was stipulated to the jury that the search was legal.
Officer Clayton Madden searched a 55-gallon plastic trash container, located within five feet of where appellant was sitting. The container was more than half full of trash. Officer Madden found a cylindrical container within the trash, similar to the mini M&M containers sold in stores. He opened the cylindrical container and found six individually packaged bindles. Each bindle consisted of a piece of black plastic twisted into a knot, a common method of packaging methamphetamine.
Officer Madden continued to dig through the trash container and found other small pieces of black plastic. These pieces had been torn or cut into similar shapes and sizes. Some pieces appeared to already have been used as bindles, while other pieces appeared to be freshly cut.
Officer Grady examined the six bindles and believed they were consistent with methamphetamine packaging. He cut open one of the bindles and found a clear, off-white crystalline-type substance consistent with methamphetamine. Grady guessed that each bindle weighted about 0.2 grams to 0.3 grams, which was a common sales size. Each bindle could be sold for $30 to $40, so that the total sales value of the six bindles was approximately $240.
A criminalist subsequently examined two of the six bindles which weighed, respectively, 0.3155 grams and 0.2975 grams. Both bindles tested positive for methamphetamine. The net weight of the six bindles, without packaging materials, was about 1.8 grams.
Officer Uriel Pacheco searched the blue SUV and found a small notebook on the front passenger seat. There were two sheets within the notebook which contained about 20 names with numbers written next to the names. Officer Pacheco believed the notes consisted of pay/owe sheets used by street-level dealers to keep track of narcotics transactions. There was no other contraband in the vehicle.
Officer Grady examined the pages in the notebook and also believed the notations were consistent with pay/owe ledger sheets used by narcotics dealers. There were 15 to 20 single Spanish names listed, with numbers like “20” and “40” written next to the names. A cell phone was also found.
While the officers did not find any large amounts of cash, digital scales, or cutting agents, Officer Grady believed the methamphetamine bindles were possessed for the purpose of sales, based on the number of bindles found, the manner in which the bindles were created from black plastic, similar pieces of torn black plastic found with the bindles in the trash, the amount of methamphetamine, the cell phone, and the numerical notations in the pay/owe sheets which were consistent with the sales price of the bindles. An amount consistent with personal usage would have been between 0.1 grams to 0.2 grams, and Grady believed there were too many bindles for the drugs to be possessed simply for personal use. Grady testified it was not uncommon for a narcotics seller to maintain his own drug habit.
After the searches were completed, Officer Grady and Officer Vidales returned to appellant, who was still sitting down but now in handcuffs. Officer Vidales advised appellant, in Spanish, of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and appellant said he would answer questions. Again using Officer Vidales as a translator, appellant was advised that narcotics were found on his property. Appellant said the drugs belonged to him for his personal use. Grady asked if he used methamphetamine. Appellant replied he used approximately $20 of methamphetamine every day. Grady asked how often he bought methamphetamine. Appellant said he bought $40 to $50 worth every two weeks. Grady asked how he used methamphetamine, and appellant said he smoked it with a glass pipe. The officers had not found a pipe during the search, and Grady asked appellant where his pipe was. Appellant said he did not know where it was.
Officer Grady told appellant that the amount he claimed to have purchased was not consistent with the amount found on the property, and he seemed to be using a lot more than what he claimed to have purchased. Appellant again said “that what was there was for personal use.” Appellant was asked where he got the drugs. Appellant said he could not identify the seller.
On direct-examination, Officer Vidales testified that appellant did not seem confused by any of the questions, appellant answered in a straightforward manner, and Officer Grady did not use trickery or deceit to ask him any questions. Officer Vidales translated Officer Grady’s questions and did not independently ask appellant any questions. Vidales testified appellant never said the drugs belonged to “Beto” or anyone else, and only said the drugs were for his personal use. Vidales testified that appellant was not advised that anything found on the property was appellant’s personal responsibility.
Officer Grady also testified that appellant never said the drugs belonged to someone else, or said that he did not know anything about the drugs. Grady never heard appellant or Officer Vidales say the drugs belonged to “Beto.”
Defense Evidence
Ignacio Duenas Reyes testified about renting half the property with appellant. Appellant and Reyes had rented the property for two years from “Salvador,” who owned the adjacent parcel. Appellant’s half was by the road, and Reyes had to cross appellant’s section before reaching the portion he used for farm animals. Reyes testified there were occasions when he would arrive on the property to check on his animals, in the middle of the week or in the evening, and he found other people there. These people were strangers and Reyes did not invite them on the property. Reyes testified these people drank, smoked, and slept on the property, and stayed around a vehicle that was parked there. Reyes testified they looked like the kind of people who used illegal drugs or narcotics.
In closing argument, the prosecutor asserted the most reasonable explanation that “trespassers” were hanging around the property, and appeared to be using drugs, was “because that’s where they could get their supply of methamphetamine .... They weren’t there to see the goats.”
Reyes testified that about two weeks after appellant was arrested, Reyes was on the back section of the property and found powder in a little plastic bag. The powder was coarse, like salt, and “[n]ot too white.” He threw the powder away and did not tell the police because he was afraid of being arrested.
Appellant testified that he manufactured fountains and planters on his half of the rental property. He lived 30 minutes away and usually worked on the property on weekends. He occasionally hired day-laborers to help with his work on the property. Appellant had caught trespassers on the ranch who were talking, drinking beer, burning wood, and sleeping on a mattress left in an abandoned red truck parked on the property. He thought these people were using drugs because they were hiding and acting suspicious.
Appellant testified that on the day he was arrested, he drove to the ranch property in his blue Suburban SUV. He had been there for about 90 minutes, working on a client’s order for a concrete planter and fountain, when the police arrived. The officers said they were looking for something illegal, and asked him if he had anything illegal. He said no. Appellant told the officers they would not find drugs there, because he knew nothing was there. The officers asked if they could search and he said yes. They also asked if the blue SUV belonged to him, and he said yes.
Appellant testified that each time the officers spoke to him, Officer Vidales translated their questions into Spanish.
“Q. Did you understand his Spanish?
“A. Yes. Some things yes, and other things he told me I got confused. I could not understand too well.”
Officer Vidales told him “[t]hat if they would find something there, I was responsible for it.” Appellant testified that he replied, “Fine. Go ahead and look.” The officers went ahead and searched the property.
Appellant testified that after his initial conversation with the police, the officers put him in a patrol car. However, he also testified that the officers arrested him, placed him in handcuffs, and had him sit next to a palm tree for more than an hour while they searched the property.
Appellant testified that Officer Vidales told him, in Spanish, “something like” that he had the right to remain silent and not talk to him if he did not want to, and he had the right to have a lawyer present. Appellant agreed to speak to the officers “[b]ecause they were asking me questions and I had to respond.” Vidales also advised him in Spanish that they found drugs and he was responsible because they found the drugs there. They did not show him the contraband or identify the drugs.
Appellant testified he told the officers that the drugs belonged to someone named “Beto,” who had visited him on the property earlier that morning, while on his way to Los Angeles. Appellant testified that during the visit, “Beto” went to a corner and appeared to use drugs. Appellant told the officers about “Beto” but did not give his full name because he did not want to blame him.
Appellant testified that even though he told the officers about “Beto,” they said appellant was responsible for what they found there. Appellant then told the officers, “Okay. They’re mine.” An officer asked if the drugs were for sale, and appellant said they were for his personal use. The officer asked if he bought the drugs and he said yes. The officer asked how he used the drugs, and appellant said he used a pipe, because that was how his friend used the drugs.
Appellant testified the drugs did not belong to him, he did not use methamphetamine, he did not buy or sell drugs, and he did not smoke it in a pipe. However, he made these admissions to the officers because he was scared when they accused him of selling drugs, and he told the officers what they wanted to hear.
“Q. Did you lie to the police because you were afraid that you would be in trouble?
“A. Yes, with my friend.
“Q. So is it fair to say that you are a person who will lie to the authorities to keep from getting in trouble?
“A. I was nervous. I did not know what to say. And they were saying many things.”
Appellant had four or five conversations with the officers, and Officer Grady told Officer Vidales what to ask him in Spanish. Appellant was asked where he lived and worked, and whether he had a family, and appellant answered their questions. Appellant only had $3 in cash that day. He had a cell phone so his wife could contact him.
Appellant testified the notebook found in his SUV belonged to him, and contained records of income and expenses for his business of making molds and fountains, and did not contain drug sales records. Appellant testified about the entries and explained the references to $20 and $25 were for purchases and money he owed for materials, and payments he made for labor and other business expenses. There were also notations for larger amounts, representing income from alfalfa sales, the purchase of a clothes washer, and loans to friends. Appellant did not write anyone’s full name but only used abbreviations.
Appellant testified Beto’s full name was Jerardo Gonzalez and declared his address and telephone number. Appellant testified that after he was arrested, he contacted Beto and asked him to take responsibility for the drugs found on his property, but Beto refused.
Rebuttal Evidence
In rebuttal, the prosecution recalled Officer Vidales to testify about his translated interview with appellant. Vidales testified appellant never said the drugs belonged to Beto or anyone else besides himself. Appellant did not seem confused or afraid when he spoke to the officers, and he was clear when he said the drugs belonged to him and he used methamphetamine.
“[THE PROSECUTOR]. Was there anything in the conversations that made you think that he was making this stuff up because he was afraid?
“[VIDALES]. No.
“Q. How many times have you either conducted interrogations of suspects after they’ve been given their Miranda rights or interpreted for other officers making such interrogations?
“A. Over a hundred times.
“Q. And based on all those experiences, was there anything that made you think that this defendant was telling you anything other than the truth?
As we will discuss in issue III, post, appellant contends defense counsel was prejudicially ineffective for failing to object to this sequence.
On cross-examination, defense counsel asked Officer Vidales if he asked appellant there he lived, what was appellant’s response, and whether his response was in Officer Grady’s report. Vidales testified he asked appellant where he lived but not where he worked, appellant said he lived in Mettler or the Weedpatch area, appellant volunteered that he manufactured pottery, and these items were not in Grady’s report.
Appellant was convicted of possession of methamphetamine for sale and sentenced to 16 months. On appeal, he contends defense counsel should have sought exclusion of his pretrial statements based upon the officers’ failure to electronically record their interview with him. Appellant also contends the court made several statements to the jurors which discouraged them from asking for readbacks. Finally, appellant asserts counsel was prejudicially ineffective for failing to object to Officer Vidales’s rebuttal testimony as to whether appellant appeared to be lying when he said the drugs belonged to him.
DISCUSSION
I.
ADMISSIBILITY OF APPELLANT’S PRETRIAL STATEMENTS
Appellant contends defense counsel was prejudicially ineffective for failing to seek exclusion of his pretrial statements to the officers based upon the argument that the officers should have electronically recorded their interview with him at the ranch property.
Appellant filed a pretrial motion to exclude his statements to the officers as obtained in violation of Miranda, asserted he did not give an express waiver, and argued any implied waiver was not knowing and intelligent. The court conducted an evidentiary hearing, and Officer Grady and Officer Vidales testified that appellant was advised of the Miranda warnings in Spanish and he agreed to answer questions. During the course of the hearing, defense counsel asked both officers whether appellant’s statements were tape-recorded, and the officers said no. The court found appellant gave a knowing and intelligent waiver and permitted the introduction of his pretrial statements. Appellant never asserted that his pretrial statements were inadmissible because the officers failed to electronically record the interviews.
Appellant now contends that the officers’ “unexplained failure” to electronically record the Miranda advisement and the interrogation at the ranch property violated his due process rights. Appellant acknowledges that his motion to exclude only addressed the validity of the waiver and asserts, in the alternative, that defense counsel was prejudicially ineffective for failing to raise this issue.
“… In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal .4th 694, 721.)” (People v. Williams (1997) 16 Cal.4th 153, 214-215.)
“If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
The failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) We defer to counsel’s tactical decisions in examining ineffective assistance claims and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland v. Washington, supra, 466 U.S. 668, 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
There was an obvious tactical reason for defense counsel’s failure to seek exclusion of appellant’s pretrial statements based on the officers’ failure to electronically record the Miranda advisement and interview. The California Supreme Court has repeatedly rejected “a blanket rule requiring that all interrogations, including the Miranda warnings and waivers, be tape-recorded to facilitate later determinations of voluntariness.” (People v. Gurule (2002) 28 Cal.4th 557, 602-603; see also People v. Holt (1997) 15 Cal.4th 619, 663-665; People v. Marshall (1990) 50 Cal.3d 907, 924-925; People v. Wimberly (1992) 5 Cal.App.4th 773, 791 & fn. 13.) We are bound by the California Supreme Court’s rulings on this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant acknowledges these rulings, and also that the United States Supreme Court has not held that law enforcement officers must electronically record Miranda advisements and interviews. Appellant asserts he has raised these contentions to preserve future review of this due process argument. We so note appellant’s preservation of the issues and reject his contentions herein.
II.
THE COURT’S INSTRUCTIONS
Appellant contends the court made several preliminary statements to the jurors in which it discouraged them from asking for any readbacks of testimony during deliberations, and that such statements violated his due process rights to a fair trial. Our review of the entirety of the instructions refutes appellant’s arguments.
A. Preliminary Instructions
After the jury was selected and sworn, and before the parties gave their opening statements, the court gave several instructions to the panel. The court noted that each juror had received a notepad and pen, advised the jurors that they could take notes during the trial but only on the furnished notepads, the jurors could not remove their notes from the courtroom during the trial, and they had to leave the notepads upside down on their chairs during recesses and at the end of the day. The court continued:
“You’ll be able to take those [notepads] with you back to the jury room to use during your deliberations.
“A word of caution: You may take notes; however, you should not permit note taking to distract you from the ongoing proceedings. Remember, you are the judges of the believability of the witnesses.
“Furthermore, notes are only an aid to memory and should not take precedence over independent recollection. A juror who does not take notes should rely upon his or her independent recollection of the evidence and not be influenced by the fact that a juror does take notes. Notes are for the note taker’s own personal use in refreshing their recollection of the evidence. And that means you can put on that pad—excuse me—whatever will help you refresh your recollection, if it’s words, if it’s numbers, or if it’s pictures. Because you’re the only one that can consult with it at the end of this trial.
“If you get back in the jury room and you find that somebody wasn’t paying attention, you can’t pull out your notepad and say: Well, hey, I have it written right here, because your notes are not the official record. The official record of these proceedings is the reporter’s transcript.
“Now, if you get back in the jury room and you find that somebody wasn’t paying attention, you can’t—as I said, you can’t actually pull out your pad. You have to ask that the reporter read back the transcript for you. And it takes us about 45 minutes to set up the courtroom for readback. And the reason it takes so long is that while you’re back there deliberating, I’ll be starting a new trial. So I’ll have new attorneys in here. I’ll have new defendants. I’ll have new jurors. But we’ll be using the same reporter.
“So if you send out a note, we’ve got to stop that proceeding. She’s got to look it up in her notes. I’ve got to clear the courtroom of all those people. I’ve got to get these parties back in the courtroom. And then I have to get you back in the courtroom. And then she’ll take the witness stand and read that—read it back to you.
“Now, I especially want to bring that to your attention now because this is a relatively short trial. We’ve had two experiences these past few months in my courtroom with respect to short trials, one in which the testimony lasted about 40 minutes and the other one where the testimony was about 30 minutes.
“This trial is going to be a little longer than that. And we are going to go into tomorrow, because there were a couple witnesses who are not here today who will not be available tomorrow morning at 9:00 o’clock. So we will definitely hear from them tomorrow.
“But, at any rate, in those two trials, the jury went back. And the first thing they asked for was for a readback of the whole testimony.
“And I have no idea what they were doing during the trial, but that’s discouraging for both parties in the trial. In other words: If there is a jury, we ask that you pay close attention during the trial and not have to ask for a readback. So we ask you to pay close attention.
“And I always like to mention to the jurors that the actual trial is not like a TV program. It’s not always interesting. It’s not always exciting. There are parts that get boring. And that’s where you have to push yourself a little bit to make sure you’re paying attention here so you don’t miss anything during those portions of the trial.” (Italics added.)
As we will discuss, post, appellant claims the italicized language violated his due process rights because it discouraged the jurors from asking for readbacks.
During the course of trial, the court reminded the jurors to leave their notebooks on their chairs for the recesses and breaks. As Officer Pacheco testified about the discovery of the notebook, the defense objected to his opinion that it consisted of pay/owe sheets. The court excused the jury and discussed with the parties whether the search warrant evidence was admissible. The court excluded the search warrant evidence, the jury returned to the courtroom, and the court advised the jurors that it would continue with the examination of the witness.
“ ... I can go back and look at the specific questions that have been asked. You don’t have that available to you.
“But you see me looking up here on my screen. You don’t have that. So you have to pay close attention. But I can go back and look. And I can go back and get these attorneys directed to where they’re supposed to be based on where we’re at. So I have that available to me.” (Italics added)
B. Closing Instructions
After the closing arguments, the court read the instructions to the jury, which included the following language about notetaking and readbacks:
“You have been given notepads and may have taken notes during this trial. Please do not remove your notes from the jury room.
“You may use your notes during deliberations only to remind yourself of what happened during the trial. But remember, your notes may be inaccurate or incomplete.
“If there’s a disagreement about what actually happened, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations, not your notes.” (Italics added.)
The court further instructed:
“The court reporter has made a record of everything that was said during the trial.
“If you decide that it’s necessary, you may decide that the court reporter’s notes be read to you. You must accept the court reporter’s notes as accurate.”
The court also instructed that several items were received into evidence as exhibits, the jury could examine the exhibits, and to request the exhibits with a written form.
“If you need to communicate with me while you’re deliberating, send a note through the bailiff signed by the foreperson or by any one or more members of the jury.
“To have a complete record of this trial, it is important that you not communicate with me, except by way of a written note.
“If you have questions, I will talk with the attorneys before I answer. So it may take some time. You should continue your deliberations while you wait for my answer.
“I will answer any questions in writing or orally here in open court.” (Italics added.)
The court completed the instructions, the clerk swore the bailiff, and the court directed the jurors into the jury room.
“[THE COURT:] Take your notepads with you.
“A JUROR: Oh, we can?
“THE COURT: Yeah. Take them back there with you.”
Thereafter, the parties stipulated the jury could receive the exhibits and instructions without further notice. At 11:35 a.m., the jury began deliberations. At 11:40 a.m., the jury sent a written note to the court, asking to see “the alleged P & O book and the pictures” of the ranch property, and “the black packaging material,” which had been introduced into evidence by the defense. At 1:32 p.m., the jury sent another note and asked for the instructions. At 3:55 p.m., the jury advised the court that it had reached a verdict.
C. Analysis
Appellant contends the court’s preliminary instructions, given prior to opening statements and the introduction of evidence, dissuaded the jury from asking for any readbacks during the subsequent deliberations and violated his due process rights. Appellant did not object to any aspect of these instructions, but the California Supreme Court has held the failure to object does not foreclose a defendant from challenging instructions regarding readbacks. (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506 (Hillhouse).)
Penal Code section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
“Pursuant to section 1138, the jury has a right to rehear testimony and instructions on request during its deliberations. [Citations.] Although the primary concern of section 1138 is the jury’s right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s right to a fair trial conducted ‘“substantially [in] accord[ance with] law.”’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1007, italics in original.) “Merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion.” (Hillhouse, supra, 27 Cal.4th at p. 506.)
The court’s preliminary instructions on notetaking, given prior to the opening statements, appear to derive largely from former CALJIC No. 1.05, which stated:
“[You [will be] [have been] given notebooks and pencils. Leave them on your seat in the jury room when you leave each day and at each recess. You will be able to take them into the jury room when you deliberate.] [¶] [A word of caution: You may take notes; however, you should not permit note-taking to distract you from the ongoing proceedings. Remember you are the judges of the believability of witnesses.] [¶] Notes are only an aid to memory and should not take precedence over recollection. A juror who does not take notes should rely on his or her recollection of the evidence and not be influenced by the fact that other jurors do take notes. Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence. [¶] Finally, should any discrepancy exist between a juror’s recollection of the evidence and a juror’s notes, or between one juror’s recollection and that of another, you may request that the reporter read back the relevant testimony which must prevail.” (Italics added.)
The court’s preliminary instructions were also similar to former CALJIC No. 17.43:
“During deliberations, any question or request you may have should be addressed to the Court [on a form that will be provided].
“If there is any disagreement as to the actual testimony, you have the right, if you choose, to request a readback by the reporter. You may request a partial or total readback, but any readback should be a fair presentation of that evidence. If a readback of testimony is requested, the reporter will delete objections, rulings, and sidebar conferences so that you will hear only the evidence that was actually presented.
“Please understand that counsel must first be contacted, and it may take time to provide a [response] [, or] [readback]. Continue deliberating until you are called back into the courtroom.” (Italics added.)
The California Supreme Court has recognized that a trial court does not have a sua sponte duty to instruct the jury on notetaking. (People v. Marquez (1992) 1 Cal.4th 553, 578; People v. Avena (1996) 13 Cal.4th 394, 423.) The court has also recognized, however, that it is “the better practice” to give the cautionary instructions previously contained in former CALJIC Nos. 1.05 and 17.43 as to notetaking and readbacks. (People v. Whitt (1984) 36 Cal.3d 724, 746-747; see also People v. Mayfield (1993) 5 Cal.4th 142, 180; People v. Ghent (1987) 43 Cal.3d 739, 757-758; People v. Dennis (1998) 17 Cal.4th 468, 537-538; People v. Jennings (1991) 53 Cal.3d 334, 381-382 [former CALJIC No. 17.48]; People v. Blassingill (1988) 199 Cal.App.3d 1413, 1422-1424 [same]; People v. Morris (1991) 53 Cal.3d 152, 214-215 [same], reversed on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Effective January 1, 2006, the California Judicial Council withdrew its endorsement of the CALJIC instructions and adopted the CALCRIM instructions. The use of the CALCRIM instructions rather than the CALJIC instructions is strongly encouraged. (People v. Thomas (2007) 150 Cal.App.4th 461, 465.) The language of former CALJIC No. 1.05 is now contained in CALCRIM Nos. 102 and 202, and the language of former CALJIC No. 17.43 is now within CALCRIM No. 3550.
“It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] ‘[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.’ [Citation.] ‘The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’ [Citation.]” (People v. Burgener (1986) 41 Cal.3d 505, 538-539, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 754.)
The court herein accurately informed the jury that readbacks of testimony involve delay and can disrupt other court proceedings; it never indicated that requests for readbacks would not be honored. A fair reading of the court’s preliminary comments is that the court was recommending notetaking as one way to help individual jurors keep their attention engaged during the trial. Although the court suggested that readbacks necessitated solely by juror inattention might be avoided by notetaking, the court still made clear that if the jurors needed a readback, they would be accommodated. Moreover, just before the jury began deliberations, the court clearly informed the jurors through the pattern instructions CALCRIM Nos. 202, 222, and 3550 (which have replaced CALJIC Nos. 1.05 and 17.43), that they should ask for readbacks and rely on the testimony rather than their notes in case of a disagreement, without reference to delay or disruption aside from that necessary to consult with the attorneys before the court responded to the jury’s request. Nothing approaching a blanket prohibition on readbacks occurred in this case. (Cf. United States v. Criollo (2nd Cir. 1992) 962 F.2d 241, 244 [trial court’s announcement before jury deliberations of a “prohibition against readbacks” of testimony was prejudicial and required reversal].) Instead, the court “made it clear it would provide any requested rereading of material testimony. Merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion. [Citation.]” (Hillhouse, supra, 27 Cal.4th at pp. 506-507, italics in original.) The court herein simply stated the obvious—that readbacks involved delay and could disrupt other court proceedings—and stating such facts did not amount to coercion.
Based upon the entirety of the instructions, appellant has not shown the court’s comments here amounted to impermissible jury coercion or otherwise violated the jury’s or appellant’s right to have the jury provided with readbacks of testimony on request.
III.
FAILURE TO OBJECT TO REBUTTAL EVIDENCE
Appellant next contends that defense counsel was prejudicially ineffective for failing to object to Officer Vidales’s rebuttal testimony as to whether he thought appellant was truthful when appellant said the drugs belonged to him. Appellant argues such testimony amounted to an inappropriate comment on a witness’s veracity and credibility, which are issues solely for the jury to decide.
It is a well-recognized proposition that lay and expert witnesses may not express their opinions regarding witness credibility because such testimony invades the province of the jury and is not sufficiently beyond common experience to be of assistance to the trier of fact. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82 (Coffman); People v. Melton (1988) 44 Cal.3d 713, 744 (Melton);People v. Sergill (1982) 138 Cal.App.3d 34, 39-40 (Sergill).)
“A witness may not express an opinion on a defendant’s guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.’ [Citation.]” (Coffman, supra, 34 Cal.4th at p. 77.) “[T]he fact finder, not the witnesses, must draw the ultimate inferences from the evidence.” (Melton, supra, 44 Cal.3d at p. 744.)
In Sergill, supra, 138 Cal.App.3d 34, the defendant was convicted of child sexual abuse. At trial, a police officer was allowed to testify that he believed, in light of his experience as an officer investigating child abuse cases, that the victim was credible. Defense counsel objected to such testimony, and the trial court responded, in the presence of the jury, “‘[T]his officer has had approximately seven years of experience, and has written, as I recall his testimony, something in the nature of a thousand or more reports, which indicates that he has had experience in taking witnesses’ testimony, and I think the course of that he would be normally expected to judge whether a person, in his opinion, is telling the truth or not. I think that he’s qualified to render his opinion in that regard.’” (Id. at p. 38.) A second officer was allowed to testify that the child had accused the defendant, that the officer always tried to arrive at the “‘truth,’” and the officer did obtain the “‘truth’” from the child. (Ibid.) Sergill reversed the conviction and held the officers were not qualified as experts, their testimony concerning the child’s credibility was irrelevant, and the officers’ testimony, along with the court’s comment in the jury’s presence, was a “usurpation of the jury’s function as fact finder.” (Id. at p. 41.) “The court’s comment may well have caused the jury to place undue emphasis on the officers’ testimony.” (Ibid.)
In People v. Smith (1989) 214 Cal.App.3d 904, the court found inadmissible the testimony of an officer that he believed the victim’s dying declaration as to the perpetrator’s identity. (Id. at pp. 914-915.) Smith noted the officer’s opinion of the victim’s veracity may have been based on his perceptions of the victim’s physical condition and mental state, but “it was not necessary to elucidate his testimony.” (Id. at p. 915.) Smith found the error harmless because independent facts strongly linked the defendant to the killing and since the officer had known the victim for two years and the victim apparently trusted him, the officer “may also have been qualified to render an opinion as to the victim’s character for honesty and veracity. [Citations.]” (Ibid.)
In Melton, the prosecutor elicited testimony from a defense investigator that he made no effort to find a person names Charles, who had been mentioned by witness Boyd as possibly involved in the killing. (Melton, supra, 44 Cal.3d at p. 742.) The principal purpose of the inquiry was to suggest the investigator “did not believe Boyd.” (Id. at p. 744, italics in original.) Melton held the trial court erroneously admitted the investigator’s testimony “to indicate his assessment of Boyd’s credibility” (id. at p. 745), because the evidence was essentially irrelevant and incompetent given the investigator was not an expert on judging credibility and he “knew nothing of Boyd’s reputation for veracity” (id. at p. 744). However, Melton found the error harmless since the investigator had answered only four questions on this matter, the prosecutor did not exploit the matter in closing argument, and there was extremely strong evidence of guilt. (Id. at p. 745.)
In the instant case, it would seem that the rebuttal questions were designed to elicit Officer Vidales’s opinion that appellant was being truthful when he said the drugs belonged to him. However, it is important to consider the context in which Vidales’s testimony was introduced as rebuttal evidence. During the prosecution’s case, Officer Grady and Officer Vidales testified that when appellant was advised that the officers found drugs on the property, appellant said the drugs belonged to him for his personal use. Appellant was asked detailed questions as to how much he paid for the drugs, how often he purchased the drugs, the method he used to ingest the drugs, and the amount of his personal usage. Appellant replied with fairly detailed answers: he used approximately $20 of methamphetamine every day, he bought $40 to $50 worth every two weeks, he smoked it with a pipe, and he did not know where his pipe was. When confronted with the discrepancy between the amount of methamphetamine found on the property—six bindles weighing about 0.2 grams each, with a total sales value of $240—and his claimed personal usage, appellant again insisted the drugs found on his property were for his personal use, and he declined to identify the seller. Officers Grady and Vidales testified appellant never claimed the drugs belonged to someone else.
The entire focus of the defense case was that someone else left the six bindles on appellant’s rental property, and that trespassers were often found on the ranch and could have engaged in narcotics usage. Appellant testified that when the officers told him about the drugs, he told them that “Beto” had just visited the property and appeared to use drugs earlier that day. Appellant testified the officers ignored his explanation about “Beto” and told him that he was responsible for whatever they found on the property. Appellant testified that only then did he say the drugs belonged to him for his own personal use. Appellant testified that he claimed to use a pipe to smoke the drugs because that was the method used by his friend. Appellant testified he lied to the officers and only told them what they wanted to hear because he was afraid and nervous about the situation.
In light of the defense strategy and appellant’s testimony, the prosecution recalled Officer Vidales as a rebuttal witness and asked him about the circumstances of the interrogation and appellant’s demeanor. Vidales testified appellant never said the drugs belonged to “Beto” or anyone besides himself, he did not seem confused or afraid when he spoke to the officers, and he was clear when he said the drugs belonged to him and he used methamphetamine.
“Q. Was there anything in the conversations that made you think that he was making this stuff up because he was afraid?
“A. No.
“Q. How many times have you either conducted interrogations of suspects after they’ve been given their Miranda rights or interpreted for other officers making such interrogations?
“A. Over a hundred times.
“Q. And based on all those experiences, was there anything that made you think that this defendant was telling you anything other than the truth?
“A. No.” (Italics added.)
Defense counsel did not object to these questions. On cross-examination, he asked Vidales about whether appellant said where he lived and worked, and Vidales conceded appellant’s responses were not included in Officer Grady’s report.
“A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where ‘helpful to a clear understanding of his testimony’ [citation], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.]” (Melton, supra, 44 Cal.3d at p. 744.) Officer Vidales’s rebuttal testimony raises a close question but it is arguable that in contrast to Sergill and Smith, the prosecutor’s question as to whether Vidales thought there was “anything that made [him] think” appellant was saying something “other than the truth,” was not designed to elicit Vidales’s opinion as to appellant’s credibility and veracity during the interrogation at the ranch property, but rather whether appellant displayed any indications from his manner or conduct that he was as nervous and scared as he claimed in his trial testimony, to rebut the defense claims as to the reasons for appellant’s claim of ownership, and demonstrate why the officers did not investigate his alleged claims about “Beto.” (See, e.g., People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33-34 [officers’ opinion of witness’s credibility properly admitted, not to show that witness had been truthful, but to show reasonableness of officers’ conduct].)
Moreover, appellant testified before the jury that he lied to the officers at the scene when he said the drugs belonged to him, but he was now telling the truth about the situation. The jury thus had the opportunity to directly evaluate his credibility as to whether he purportedly lied about the drugs because he was frightened. Officer Vidales’s testimony about appellant’s demeanor was clearly relevant given appellant’s trial testimony, and Vidales’s testimony was not the only evidence before the jury to evaluate the defense theory.
It is also important to consider that appellant raises this issue in the guise of an ineffective assistance claim since defense counsel did not object to any aspect of Officer Vidales’s rebuttal testimony. The inappropriate admission of opinion evidence requires reversal if it is reasonably probable the defendant would have obtained a more favorable outcome if the trial court had excluded the challenged testimony. (Sergill, supra, 138 Cal.App.3d at p. 41; Melton, supra, 44 Cal.3d at pp. 744-745; People v. Watson (1956) 46 Cal.2d 818, 836-837.) As explained, ante, however, in evaluating an ineffective assistance claim, defense counsel’s failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly, supra, 1 Cal.4th at p. 520.) We defer to counsel’s tactical decisions in examining ineffective assistance claims and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington, supra, 466 U.S. at p. 689; People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) “If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz, supra, 3 Cal.4th at pp. 557-558.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267; People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)
In People v. Hayes (1990) 52 Cal.3d 577, the defendant argued that counsel was ineffective for failing to object to two witnesses who testified about the victim’s character. Hayes held that defense counsel “could have reasonably determined that there was no tactical advantage in objecting to the prosecutor’s relatively innocuous questions.” (Id. at p. 622.) A similar conclusion may be reached in the instant case, that the prosecutor’s single question and Vidales’s one word answer were relatively innocuous such that counsel was not prejudicially ineffective for failing to object. (See Melton, supra, 44 Cal.3d at p. 745.) Moreover, Vidales’s testimony on this point was not the focus of the prosecutor’s closing argument (see Melton, supra, 44 Cal.3d at p. 745) and, in contrast to Sergill, the trial court herein did not interpose its own views as to the witness’s testimony or the subject’s credibility.
In closing argument, the prosecutor never cited to Officer Vidales’s rebuttal testimony as evidence that appellant was telling the truth when he admitted the drugs belonged to him. Instead, the prosecutor asserted that there was no evidence appellant mentioned “Beto” to the officers while he was questioned at the ranch property, and argued appellant’s testimony on this point, and his claims about the notations in the notebook, were not credible. The prosecutor further asserted that appellant quickly claimed the drugs were for his personal use to avoid the more serious charge of possession for sale. Defense counsel asserted the officers failed to take notes and report appellant’s statements about “Beto.” In rebuttal, the prosecutor asserted the police report did not say anything about “Beto” because appellant never mentioned him that day. “Luis Vidales didn’t forget. Neither did Officer Grady. That story never came out. But [appellant] didn’t mind standing up on the stand, taking a sacred oath, and lying to you about that so that you would sympathize with him
We thus conclude that it is not reasonably probable the result would have been different if counsel had objected to Vidales’s rebuttal testimony. Aside from appellant’s claims about “Beto,” he was still faced with explaining the contents of the notebook, and the coincidence that the numerical amounts written next to the names corresponded to the sales prices for the same size of bindles found at the ranch property. Appellant testified that specific names corresponded to money owed or received from various business transactions, but he failed to call any of these alleged business clients or friends to confirm his description of their purported transactions. Appellant also testified that “Beto” was on the property and the drugs might have belonged to him, but never managed to explain the scraps of torn and/or cut black plastic that were in the trash can, identical to the black plastic used as packaging materials for the six bindles of methamphetamine.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J.. GOMES, J.