Opinion
F085861,F086205
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. GERALD LEVON JEFFERY, JR., Defendant and Appellant.
Martin Baker for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Stanislaus County Nos. CR-22-007572, CR-20-011591. Carrie M. Stephens, Judge.
Martin Baker for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
A jury found defendant Gerald Levon Jeffery, Jr., guilty in Stanislaus County Superior Court case No. CR-20-011591 (the 591 case) of transporting a controlled substance, possessing a controlled substance, and driving while his license was suspended or revoked. The jury also determined that he was convicted of a prior "strike" conviction within the meaning of the "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to an aggregate term of seven years four months.
All statutory references are to the Penal Code unless designated otherwise.
Prior to the verdict, defendant was charged in Stanislaus County Superior Court case No. CR-22-007572 (the 572 case) with two counts of forgery and two counts of grand theft for attempting to redeem a fraudulent U.S. savings bond from a local bank while released on his own recognizance. Defendant pled no contest to one count of forgery and was sentenced to one year four months, consecutive to his sentence in the 591 case. The remaining charges in the 572 case were dismissed.
Defendant directly appeals both judgments on grounds of ineffective assistance of counsel. He argues that his trial counsel unreasonably (1) elicited damaging expert witness testimony in front of the jury during voir dire at his trial in the 591 case, (2) failed to object to specific expert witness testimony in the same, and (3) failed to request the preparation of a probation report.
We affirm the judgments.
PROCEDURAL BACKGROUND
On February 7, 2022, the Stanislaus County District Attorney filed an information in the 591 case charging defendant with (1) transportation of a controlled substance, i.e., methamphetamine, with the intent to sell (Health &Saf. Code, § 11379, subd. (a); count I), (2) possession of a controlled substance, i.e., methamphetamine, with the intent to sell (Health &Saf. Code, § 11378; count II), and (3) misdemeanor driving with a suspended or revoked license (Veh. Code, § 14601, subd. (a); count III.) As to counts I and II, the information further alleged defendant had suffered a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
On July 29, 2022, while defendant was out of custody and awaiting trial in the 591 case, the Stanislaus County District Attorney filed a criminal complaint against defendant in the 572 case, charging defendant with two counts of forgery (§ 470, subd. (d); counts I &III) and two counts of grand theft (§ 487, subd. (a); counts II &IV). The complaint further alleged that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and committed the charged offenses while released on his own recognizance in the 591 case (§ 12022.1).
On November 17, 2022, a jury found defendant guilty of all counts in the 591 case. The trial court found beyond a reasonable doubt that defendant was named in various documents relating to his prior strike conviction. The jury found that defendant was convicted of the prior strike conviction.
At the March 2, 2023, sentencing hearing, the trial court denied defendant's motion to strike his prior conviction. It found defendant ineligible for probation given his prior strike.
On the same date, defendant plead no contest to count I and admitted having suffered a prior strike in the 572 case in exchange for a stipulated sentence of 16 months (one-third of the middle term of two years, doubled due to the prior strike conviction).The remainder of the complaint was dismissed as to defendant with a Harvey waiver. As part of the plea agreement, defendant waived the right to appeal in the 572 case. On the same date, the trial court imposed the stipulated sentence. The court ordered this sentence to run consecutive to defendant's sentence in the 591 case.
We note that the abstract of judgment incorrectly reflects that defendant was convicted by jury with respect to count 1-B. We direct the trial court to amend the abstract of judgment to reflect that defendant was convicted by plea with respect to count 1-B.
People v. Harvey (1979) 25 Cal.3d 754.
In the 591 case, the trial court sentenced defendant to an aggregate term of six years as follows: on count I, six years (the middle term of three years, doubled due to the prior strike conviction); on count II, four years (the middle term of two years, doubled due to the prior strike conviction), stayed under section 654; and on count III, no punishment.
The aggregate term for the 591 and 572 cases was therefore seven years four months.
We note that the abstract of judgment reflecting this sentence is incorrect. Though it indicates the correct aggregate term, it does not reflect the proper sentence for the counts in the 592 case nor that defendant was sentenced under the Three Strikes law. When a discrepancy exists between a trial court's oral pronouncement and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We may correct a clerical error in recording a lower court's pronouncement at any time. (Mitchell, at p. 185; People v. Torres (2020) 44 Cal.App.5th 1081, 1085.) We direct the trial court to issue an amended abstract of judgment accurately reflecting the trial court's judgment by indicating that defendant was sentenced to six years on count I, four years on count II, and that defendant was sentenced pursuant to the Three Strikes law.
Defendant filed notices of appeal in both cases: March 2, 2023, for the 591 case and May 1, 2023, for the 572 case.
No arguments on appeal appear to relate to the 572 case. Therefore, we treat any contentions regarding the 572 case as waived. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived"].)
FACTUAL BACKGROUND
The 591 Case
On September 22, 2020, defendant drove a vehicle through Modesto alone. The vehicle had an expired registration and was registered to a person other than defendant. An officer stopped defendant for the expired registration. When asked for his driver's license, defendant admitted that it was suspended. Upon exiting the vehicle, defendant "stuffed" a small "plastic baggie" containing 11.799 grams of methamphetamine into his pants. After officers discovered the methamphetamine, they searched the vehicle, securing a zippered bag containing hydrocodone pills, a pill bottle with small plastic "baggies" inside, a working digital scale, two cell phones, and various tools. Officers arrested defendant.
Defendant told officers during his interview that he found the digital scale at a "pipe shop" and that the pills were for his back pain. He did not disclaim ownership of the drugs or the items found in the vehicle.
One cell phone belonged to defendant. It contained text messages from June 2020 through early September 2020 in which defendant arranged to sell narcotics and painkillers to various individuals. One text message included an offer to trade defendant tools for drugs.
On September 24, 2020, law enforcement released defendant from custody on his own recognizance.
At trial, former Modesto Police Department Detective Jacob Mertz testified as an expert in narcotics and narcotics sales. As a member of the narcotics enforcement team, he investigated about 200 or 300 narcotics cases. Based on this experience and his review of the evidence, he opined that defendant intended to sell the methamphetamine in his possession.
Mertz testified that the digital scale was consistent with those used in narcotics sales to ensure both the "dealer" and the buyer of the quantity of drugs exchanged. The small plastic "baggies" were often used to package narcotics for sale, and the average user, in his experience, did not normally possess packaging materials. The various tools were often commonly traded for narcotics since they are often easily stolen from hardware stores. The hydrocodone pills were commonly sold by narcotics "dealers," who often sell more than one drug. The 11.799 grams of methamphetamine in defendant's possession equated to about a 37-day supply for the average methamphetamine user. A methamphetamine user would not normally keep such a large amount on them given its worth, about $125, and the risk of it being stolen by other users.
Defense counsel cross-examined Mertz about his conclusion that defendant intended to sell the drugs. Defense counsel pointed to the lack of text messages within the weeks leading to defendant's arrest. She elicited Mertz's testimony that a large quantity of drugs on defendant could have indicated that he was a serial user needing larger doses, not necessarily a seller. He testified that buying narcotics in bulk is often cheaper than buying in smaller quantities, so defendant's possession of a large quantity of drugs for personal use was not improbable.
Luis G. testified on defendant's behalf. He admitted to prior convictions for first degree burglary, possession of fraudulent checks, and transportation of narcotics for sale. Luis met defendant through a friend. Luis sold the vehicle to defendant in September 2020 after Luis' boss gave him the vehicle to fix up and sell. Luis worked "everywhere" and did not know where his boss worked. He possessed the vehicle for about two weeks before selling it to defendant. He testified that he stored his gold mining materials-tools, scales, "baggies," and dirt-in the vehicle, but he did not remove these materials before selling the vehicle to defendant. He "panned" for gold in the Sierra Nevada Mountains and in his backyard in Turlock.
Stanislaus County Sheriff's Office Deputy Tyler Caldwell testified in rebuttal. At the time of the September 22, 2020 traffic stop, he was a patrol officer with the Modesto Police Department. He helped search defendant's vehicle. He did not believe any of the items in the vehicle were associated with a gold-mining operation. He did not recall defendant ever disclaiming ownership of the vehicle or any items in the vehicle. He recalled that defendant claimed he found the scale at a "pipe shop" and took the hydrocodone pills for his back.
The 572 Case
Defendant stipulated to the following factual basis on count I of the 572 case: "On April 22[], 2022, the defendant submitted a fraudulent U.S. savings bond to a bank .... The U.S. savings bond of $20,763 was a false bond and he was intending to defraud the bank, and this occurred in Stanislaus county."
DISCUSSION
Defendant contends his counsel was ineffective in eliciting harmful testimony from Mertz during voir dire, failing to object to improper expert witness testimony, and failing to request a probation officer's sentencing report. We disagree in all three respects.
I. Legal Standards
A defendant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To establish such a claim, a defendant must show (1) his counsel's performance fell below an objective standard of reasonableness and (2) prejudice, that is, but for counsel's unprofessional error a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Generally, ineffective assistance of counsel claims should be brought through habeas corpus proceedings, instead of direct appeal, given that "the record usually sheds no light on counsel's reasons for action or inaction." (People v. Woodruff (2018) 5 Cal.5th 697, 736.) On direct appeal, a court may find ineffective assistance only if: (1) the record shows that counsel lacked a rational tactical purpose for the challenged act or omission, (2) counsel failed to provide a reason when asked for one, or (3) no satisfactory explanation could exist. (People v. Campos (2024) 98 Cal.App.5th 1281, 1298.)
In determining whether counsel's conduct was deficient, a reviewing court also "defers to counsel's reasonable tactical decisions" and presumes that "counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A court uses an objective standard of reasonableness under prevailing norms based upon facts, not speculation, that counsel rendered ineffective assistance. (Strickland, supra, 466 U.S. at pp. 687-688, 693-694; People v Williams (1988) 44 Cal.3d 883, 933 ["[a] factual basis, not speculation, must be established before reversal of a judgment may be had on grounds of ineffective assistance of counsel"].)
" 'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge 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 conduct "might be considered sound trial strategy." '" (In re Valdez (2010) 49 Cal.4th 715, 729-730.)
Even if a court finds ineffective assistance, a court will not act unless prejudice exists: a reasonable probability that appellant would have obtained a better result absent the deficiency. (Strickland, supra, 466 U.S. at pp. 687-688, 693-694; People v. Avena (1996) 13 Cal.4th 394, 418.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
II. Voir Dire
Defendant argues his trial counsel was ineffective in eliciting Mertz's behavioral analysis qualifications during voir dire in the jury's presence. We disagree.
A. Additional Background
Defense counsel conducted a voir dire of Mertz in the jury's presence. While defense counsel was asking Mertz to explain his training and its relevance to the case, he explained his behavioral analysis training permitting him to determine "behavior people use when trying to be deceitful" and "common things people will do when they're telling the truth." He explained its relevance in cases involving narcotics sales: "[P]eople don't always tell the truth. And so they will use language that kind of minimizes ... what they're being questioned about." He claimed he could review video footage of a person and determine whether they are telling the truth or not.
B. Analysis
Defense counsel's elicitation of Mertz's behavioral analysis training during voir dire is consistent with the purpose of expert witness voir dire: to explore and challenge the witness's credibility and ability to formulate opinions. Reviewing courts "rarely second-guess" counsel's tactics in challenging a witness "despite the elicitation of seemingly damaging testimony." (People v. Ervin (2000) 22 Cal.4th 48, 94 [pertaining to cross-examination].) Because a satisfactory explanation and rational tactical purpose for exploring and challenging Mertz's qualifications exists, we cannot conclude defense counsel's questions were unreasonable. For that reason, defendant's ineffective assistance of counsel claim on this issue fails.
III. Expert witness testimony
Defendant next contends that defense counsel was ineffective for two additional reasons: he did not object to Mertz's testimony that (1) his review of video footage of defendant's arrest and interview did not change his opinion that defendant possessed the methamphetamine for sale and (2) defendants charged with selling narcotics lie in a high percentage of cases. Again, we disagree.
A. Additional Background
The prosecution asked Mertz to opine whether defendant was lying based on his review of video footage from defendant's arrest and police interview. Defense counsel objected. After a discussion with the prosecutor and defense counsel in chambers, the court sustained an objection to that line of questioning. The prosecutor then asked whether Mertz's review of the video footage changed his opinion that defendant possessed the methamphetamine for sale. Defense counsel did not object. Mertz answered that it did not change his opinion.
The trial court later summarized the discussion in chambers outside of the presence of the jury. The court disallowed Mertz to testify about whether he thought defendant was lying based on his video footage because it constituted improper "human lie detector" testimony. The court told the prosecutor that she could ask whether his review of the video footage changed his opinion about whether defendant intended to sell the methamphetamine. Defense counsel did not object to the court's suggestion.
The trial court instructed the jury on the difference between direct and circumstantial evidence, that circumstantial evidence is not necessarily worse than direct evidence, and that the jury ultimately decides credibility.
During closing arguments, neither the prosecutor nor defense counsel addressed Mertz's testimony about whether the footage changed his opinion or the statistics regarding lying in narcotics cases he was involved in. Defense counsel urged the jurors to request rereading of certain testimony.
The jurors did not request any testimony be reread. The jurors did submit two questions: whether the jury could review the video footage of defendant, which was not presented at trial, and whether the digital scale was tested for narcotics residue, and any results.
B. Analysis
Mertz's testimony about the effect of his review of the video footage on his opinion that defendant intended to sell the methamphetamine was not necessarily objectionable. Asking an expert witness whether specific evidence changed the expert's opinion is appropriate. But even if a valid objection existed because, as defendant argues, the question implied improper "human lie detector" testimony, "[c]ompetent counsel may forego even a valid objection for tactical reasons." (People v. Campbell (2020) 51 Cal.App.5th 463, 506.)
"Tactical reasons" in this case could have included, among other things, (1) a reasonable belief, based on the discussion in chambers, that the trial court would have permitted the testimony over an objection, (2) a reasonable decision that a prolonged fight over this testimony may have prejudicially focused the jury's attention on this testimony, and (3) a reasonable conclusion that Mertz's testimony did not change the weight of his substantial prior testimony that the items found in the vehicle and the amount of methamphetamine on defendant's person were consistent with an intent to sell the methamphetamine.
But we cannot determine the existence or nonexistence of satisfactory tactical reasons for the decisions in this case because we lack a record sufficient to assess the reasonableness of counsel's choices "through the likely perspective of counsel at the time." (People v. Ochoa (1998) 19 Cal.4th 353, 445.) We do not know exactly what transpired in chambers based upon the court's high-level summary. The existence of possible satisfactory explanations for counsel's decision and a record insufficient to determine the nonexistence of a rational tactical purpose means we cannot conclude that defense counsel's decision not to object was unreasonable. (People v. Campos, supra, 98 Cal.App.5th at p. 1298.)
Finally, we conclude that the decision not to object to Mertz's testimony about either his review of the footage or the statistic about lying in narcotics cases was not prejudicial. Even if this testimony cumulatively equated to impermissible "human lie detector" testimony, such testimony has been found not prejudicial where the defendant presented countervailing witness testimony, the prosecution did not mention the evidence in closing argument, and the jury was instructed that it was the sole judge of facts and the credibility of witness. (People v. Wilson (2019) 33 Cal.App.5th 559, 572 [analyzing whether a reasonable probability existed that the defendant would have received a more favorable result where an expert witness testified about the statistical probability that victims of childhood sexual abuse lie].) Here, defense counsel rebutted Mertz's conclusions with Luis's testimony about the ownership of the items. Defense counsel effectively cross-examined Mertz about the basis for his conclusions. The prosecutor did not rely on the purportedly problematic areas of Mertz's testimony at closing. The court instructed the jury that it was the sole judge of facts and the credibility of witnesses. For these reasons, we cannot determine that Mertz's testimony was prejudicial.
The record does not support that the juror's questions about the body camera footage and the presence of narcotics residue on the scale create a close case and, therefore, a reasonable probability that defendant would have received a more favorable verdict absent Mertz's testimony. No general rule exists that juror questions equate to a close case. Each case varies. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 ["numerous" juror questions and requests for rereading of testimony one of several factors used to determine the case was close]; Maupin v. Widling (1987) 192 Cal.App.3d 568, 572-573 [juror questions one of several factors used to determine the probable effect of a jury instruction]; People v. Fuentes (1986) 183 Cal.App.3d 444, 456 [a close case where jury deliberated for over nine hours and asked for rereading of testimony multiple times].) Our review of the record does not indicate that this was a close case in the juror's minds.
Here, we may presume that, because closing arguments took place in the afternoon, and the verdict forms were signed the same day, the jury did not take long to deliberate. The jurors did not submit numerous questions, only two. The jurors did not request any rereading of testimony, despite defense counsel's urging. The jurors' request to view the body camera footage does not necessarily mean they were swayed by Mertz's testimony. Rather, it could indicate their disbelief of Mertz's assessment, and their desire to assess credibility for themselves, as they were instructed to do. However, given the record before us, we do not know. We cannot conclude that this was a close case. A reasonable probability that defendant would have obtained a more favorable result absent the purportedly improper portion of Mertz's testimony does not exist.
IV. Probation Report
Defendant argues that it was unreasonable for defense counsel to not request a probation report because the report would likely have contained information supporting mitigation based upon childhood trauma. Defendant contends a reasonable likelihood exists that he would have received a more lenient sentence if a probation report was requested. We disagree.
A. Additional Background
Prior to sentencing, defense counsel filed a sentencing brief arguing that defendant's "loss of his mother was the traumatic trigger that started an almost three decades long battle with substance abuse disorder .... Drugs were the only way that [defendant] could escape the reality he was facing. They numbed the grief he felt when he reflected on the magnitude of the loss he was facing." In arguing for a lenient sentence, counsel stated that defendant's "battle with substance abused disorder began at a young age and it stemmed from the trauma he experienced as a teen with the death of his only parent. [Defendant] began using drugs to cope with the pain and chaos in his life."
Defendant's fiancee, sister, and a friend wrote letters to the court requesting leniency, but no one mentioned childhood trauma. Defendant's fiancee and sister recommended that appellant would benefit from substance abuse treatment.
At the sentencing hearing, the trial court noted "some circumstances in mitigation," explaining that it assumed "that the defendant has had trauma that was explained in his papers, and if that were to actually be true, the [c]ourt would find that to be a mitigating factor; however, that mitigating factor does not outweigh all of the aggravating circumstances."
B. Analysis
Defendant acknowledges the record's ambivalence regarding whether the probation report would have contained information supporting a more lenient sentence. To reach defendant's suggested outcome on an ambivalent record requires impermissible speculation about the report's content and probative force. (People v. Williams, supra, 44 Cal.3d at p. 933; People v. Bolin (1988) 18 Cal.4th 297, 345 [reviewing courts cannot infer anything about mitigating evidence not on the record].)
Possible satisfactory explanations exist for counsel's decision: a reasonable belief that the probation officer would recommend a harsher sentence, or that the probation officer's findings regarding childhood trauma would not have much probative force. We cannot know which, if any, are true because we lack a sufficient factual record. Given the record before us, we find no prejudice arising from defense counsel's decision to not request a probation report.
This decision was also not prejudicial. Sentencing courts must impose the lower term if childhood trauma is "a contributing factor in the commission of the offense" unless the court finds that "the aggravating circumstances outweigh the mitigating circumstances." (§ 1170, subd. (b)(6).) The trial court explained that, taking defendant's account of childhood trauma to be true, "that mitigating factor does not outweigh all of the aggravating circumstances." So, unless the probation report would have contained information about defendant's childhood trauma beyond the information provided to the court or with greater probative force than what was already presented by defendant, we cannot conclude that counsel's decision was prejudicial. (See People v. Lamas (1998) 67 Cal.App.4th 35, 37, 40-41 [not prejudicial for counsel to not request a supplemental probation report where it would have contained the same information included in the original probation report and the defendant's statement in mitigation].)
The record contains no indication that the probation report would have included different information, or set forth information with more "probative force," than what was considered by the court in defendant's papers. With an insufficient record of any additional or more probative mitigating information," 'we cannot infer anything about its existence, availability, or probative force, or the probable consequences of its use at trial.'" (People v. Bolin, supra, 18 Cal.4th 297, 345.) We find no prejudice arising from defense counsel's decision to not request a probation report.
DISPOSITION
The judgments are affirmed. The trial court is directed to issue an amended abstract of judgment reflecting that in Stanislaus County Superior Court case No. CR-20-011591 defendant was sentenced to the middle term of six years on count I and the middle term of four years, stayed pursuant to section 654, on count II. The court is further directed to amend the abstract of judgment to reflect that defendant was convicted by plea on count I in Stanislaus County Superior Court case No. CR-22-007572 (listed as count 1-B on the abstract of judgment). The amended abstract of judgment should reflect as to both cases that defendant was sentenced pursuant to the Three Strikes law (i.e., "per PC 667(b)-(i) or PC 1170.12"). The trial court is further directed to provide a certified copy of the amended abstract of judgment to the appropriate authorities. --------- Notes: [*] Before Franson, Acting P. J., Pena, J. and Smith, J.