Opinion
C083692
04-24-2018
THE PEOPLE, Plaintiff and Respondent, v. DALE KING, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE011907)
A jury convicted defendant Dale King of possession of methamphetamine for sale. In bifurcated proceedings, the trial court found true allegations of four prior prison terms and a prior drug conviction. The trial court sentenced defendant to an aggregate prison term of 11 years.
Defendant now contends (1) defense counsel rendered ineffective assistance in failing to object to an expert's interpretation of his jail call, and (2) the trial court erroneously instructed the jury on the procedure for considering the lesser included offense of simple possession. We find no merit in the contentions.
In supplemental briefing, defendant asserts (3) that the three-year enhancement imposed for his prior drug conviction must be stricken pursuant to a recent amendment to Health and Safety Code section 11370.2. The People agree, and we do too. We will modify the judgment to strike the three-year enhancement imposed for defendant's prior drug conviction, and affirm the judgment as modified.
BACKGROUND
Sheriff's deputies on patrol in Rancho Cordova contacted defendant and a female companion. A search of defendant's person revealed a pouch with four pieces of methamphetamine weighing 28.0 grams, 6.41 grams, 6.46 grams, and 6.52 grams. One ounce equals 28.5 grams with a street value of $300 to $350. An "eight ball" equals 3.5 grams with a street value of $80 to $100. Defendant possessed approximately $780 worth of methamphetamine. He did not possess any paraphernalia for use or for sales.
The deputies placed defendant in a patrol car equipped with a recording device. While the two deputies and defendant's companion stood next to the patrol car, defendant said, "You gotta take this case baby. Baby, you gotta take this case baby."
Defendant's phone calls from jail were also recorded. Two days after his arrest, defendant called an individual named John and said "she gotta take it" several times. Defendant explained that he had gone to the park "trying to handle [his] business," that an individual named Danny had called saying he "need one," that defendant went through a gate and "snatched it," and that defendant was on his way to see Danny to "do what [he] needed to do." John responded, "[t]hat's business man." Defendant told John to call Danny and explain what had happened, that Danny should call defendant's "people" and explain it and give them "what he had," and that Danny should "continu[e] doing what it is that they was doing. Okay?" John responded, "Yeah, I got you."
Detective Christina Montano, the prosecutor's expert on possession of methamphetamine for sale, explained that drug dealers use code in talking about drugs and drug deals. She had listened to defendant's call with John and interpreted the conversation as follows: Defendant wanted a woman to be charged with the offense rather than him, and he had gone to the park to sell narcotics which he considered to be his business. After he was arrested, defendant expected his contacts would continue the business.
Detective Montano said that in determining whether someone possessed methamphetamine for sale, she considers the amount of methamphetamine possessed, the packaging, the presence or absence of sale paraphernalia, and jail calls. Based on a hypothetical with facts similar to the present case, Detective Montano opined that defendant possessed methamphetamine for sale. Noting that a typical dose equals 0.1 grams, the detective said defendant had 470 doses. The fact that defendant did not carry a means to ingest it also suggested it was for sale rather than personal use. Although a heavy user can smoke 3.5 grams a day, Detective Montano said that was not very common based on the cost and risk of overdose. Defendant also had three packages which each contained almost two "eight balls" and another package with 28 grams, almost an ounce, which suggested the packages were ready for distribution to particular clients because he did not have extra baggies or a scale. Each package had been shorted about 0.5 grams.
The jury convicted defendant of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) In bifurcated proceedings, the trial court sustained four prior prison terms (Pen. Code, § 667.5, subd. (b)) and a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)). The trial court sentenced defendant to an aggregate prison term of 11 years.
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends defense counsel rendered ineffective assistance in failing to object to Detective Montano's interpretation of his jail call.
A
To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient -- that it fell below an objective standard of reasonableness under prevailing professional norms -- and that defendant suffered prejudice as a result, establishing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 ; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009, original italics.)
" 'Whether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence.' [Citation.] 'Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight . . . . A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1185.) A failure to object rarely establishes ineffective assistance of counsel. (People v. Hillhouse (2002) 27 Cal.4th 469, 502 (Hillhouse).)
B
Defendant claims his defense counsel was ineffective in failing to object when Detective Montano said defendant's use of the word "business" in his jail call with John, and his statements that "he needed one" and "they can continue doing what they were doing," were all slang or code for drug dealing. Defendant argues Detective Montano "was in no better position than the jury to interpret this vague language" and that her testimony went beyond her area of expertise. Defendant concedes that defense counsel challenged Detective Montano's testimony on cross-examination, asking if her testimony about the jail call was "conjecture" or nothing but "presumptions." He notes, however, that the prosecutor's objection to the question as argumentative was sustained.
Defendant has failed to demonstrate that counsel was deficient in failing to object to Detective Montano's testimony about the phrases used by defendant. Detective Montano testified as an expert on the possession of methamphetamine for sale. Although defendant's intent was an issue for the jury, an expert may give an opinion on whether the drugs possessed were for the purposes of sale. (People v. Carter (1997) 55 Cal.App.4th 1376, 1377-1378.) The detective testified that she considered jail calls in determining whether methamphetamine is possessed for sale. She also testified that a drug dealer uses code in phone calls. An expert may render an opinion on phrases used in the drug-dealing context because it is a subject "sufficiently beyond common experience" that would assist the jury. (Evid. Code, § 801, subd. (a).) Under these circumstances, defense counsel was not deficient in declining to object.
In any event, defendant has failed to demonstrate prejudice. The jury requested the transcript of defendant's jail call during deliberations but did not ask for a read back of the Montano testimony. Moreover, even without the interpretation of the jail call, there was overwhelming evidence that defendant possessed the methamphetamine for sale, given that he had 470 doses without any paraphernalia for ingestion and packaged the methamphetamine in weights used for distribution to buyers.
Defendant also claims Detective Montano informed the jury that defendant had a criminal history and defense counsel was ineffective in failing to object. Prior to trial, the prosecutor sought to introduce defendant's prior possession for sale conviction in its case-in-chief to show intent, knowledge, and absence of mistake. The prosecutor also sought to impeach defendant, should he testify, with several other prior convictions. The trial court excluded defendant's prior convictions before 2001 as remote but allowed the remainder to be used as impeachment. The prosecutor then decided that the prior drug conviction would be stronger as rebuttal evidence. The trial court concluded admissibility would be decided after the defense case.
When Detective Montano testified about defendant's jail call, she interpreted defendant's statement that "she gotta take it" to mean that a woman needs to be charged rather than him, explaining that "when you have somebody with a criminal history, and if they are with somebody who doesn't have that same criminal history, they will usually try to, you know, push off whatever it is that is going to get them in trouble to that person, whether it be guns, money, dope, you know."
Defendant has failed to show that defense counsel's performance was deficient in failing to object. As we have explained, the failure to object rarely establishes ineffective assistance. (Hillhouse, supra, 27 Cal.4th at p. 502.) Even if objectionable, defense counsel may have decided his objection would focus the jury's attention on the fact of a criminal history. (See People v. Gurule (2002) 28 Cal.4th 557, 610.) Moreover, defendant cannot show prejudice. As noted already, the evidence of possession for sale was overwhelming.
Defendant further complains defense counsel failed to request a pretrial hearing on Detective Montano's testimony which would have revealed that her testimony was based on inadmissible evidence and his criminal history. But even if we were to assume a deficiency in that regard, defendant has not shown prejudice for the reasons we have already stated. Defendant's claim of ineffective assistance lacks merit.
II
Defendant further contends the trial court erroneously instructed the jury on the procedure for considering the lesser included offense of simple possession. He claims the jury should have been permitted to render a guilty verdict on the lesser included offense without first reaching a unanimous not-guilty verdict on the charged offense of possession for sale. Defendant bases his position on the argument that the holdings in Stone v. Superior Court (1982) 31 Cal.3d 503 (Stone) and People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman) were abrogated by Blueford v. Arkansas (2012) 566 U.S. 599 (Blueford).
A
In Stone, the California Supreme Court held that "the trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense. Failure to do so will cause a subsequently declared mistrial to be without legal necessity." (Stone, supra, 31 Cal.3d at p. 519.)
Later, in Kurtzman, the California Supreme Court clarified the holding in Stone. "Stone should be read to authorize an instruction that the jury may not return a verdict on the lesser offense unless it has agreed beyond a reasonable doubt that defendant is not guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense." (Kurtzman, supra, 46 Cal.3d at p. 329, italics omitted.)
Blueford involved different circumstances. In that case Arkansas law required the jury to convict on one of the charged offenses -- capital murder, first degree murder, manslaughter, or negligent homicide -- or acquit on all the charged offenses. The jury foreperson reported during deliberations that the jury unanimously voted against capital murder and first degree murder, but the trial court declined the defendant's request for new verdict forms allowing the jurors to acquit on those charged offenses. When the jury could not reach a verdict on all counts, the trial court declared a mistrial. In a new trial, the trial court denied the defendant's motion to dismiss the capital murder and first degree murder counts on the ground of double jeopardy. (Blueford, supra, 566 U.S. at pp. 601-610.) The United States Supreme Court held it was not improper to retry the defendant on all counts because the jury foreperson's report was not a final resolution of anything; the jury continued its deliberations after the report. (Id. at p. 606.)
B
Here, the trial court instructed the jury on both the charged offense of possession for sale and the lesser offense of possession. The trial court also instructed the jury that if it found defendant not guilty on the charged offense, it may find him guilty on the lesser offense, but the trial court could only accept a verdict of guilty on the lesser offense if the jury reached a verdict of not guilty on the charged offense. The trial court further instructed the jury that it could decide which order to consider the greater and lesser crimes.
At 10:30 a.m. the jury retired to deliberate. About 4:30 p.m. the same day, the jury sent a note to the trial court saying it was deadlocked on the "major count," having taken two votes with the first vote seven to five and the second vote six to six. In discussing the jury note with defense counsel and the prosecutor, the trial court said it was planning to remind the jury of their duty to attempt to reach a verdict. Defense counsel objected, but requested in the alternative that the trial court also reinstruct on the burden of proof. The trial court declined to reinstruct on the burden of proof. The next morning, the trial court reminded the jury of its duty. An hour and 10 minutes later, the jury sent a note indicating it had reached a verdict. The jury returned a guilty verdict on possession for sale.
In Kurtzman, the jury was deadlocked on the greater charge but not the lesser charge. (Kurtzman, supra, 46 Cal.3d at p. 327.) The California Supreme Court held that although the jury must acquit on the greater charge before convicting on the lesser charge, it can consider the chargers in any order. (Id. at pp. 330-331.) Here, the trial court instructed the jury consistent with controlling California law, but defendant challenges that approach, arguing it is not mandated by the double jeopardy clause, citing Blueford. Defendant adds that the California Supreme Court is currently considering, in People v. Aranda (2013) 219 Cal.App.4th 764, review granted December 18, 2013, S214116, whether Blueford implicitly overruled Stone, and he sets forth policy reasons to depart from the governing California case law.
Defendant's arguments do not convince us that we should deviate from controlling California Supreme Court precedent, and we decline to do so. The trial court did not commit instructional error in this case.
III
In supplemental briefing, defendant asserts the three-year enhancement imposed for his prior drug conviction must be stricken pursuant to a recent amendment to Health and Safety Code section 11370.2. The People agree.
The recent amendment to Health and Safety Code section 11370.2 made the enhancement applicable only to those previously convicted of violating Health and Safety Code section 11380. Defendant's prior drug conviction was for violating Health and Safety Code section 11378. Thus, the three-year enhancement imposed by the trial court at sentencing no longer applies to defendant. We will modify the judgment to strike the enhancement.
DISPOSITION
The judgment is modified to strike the three-year enhancement imposed for defendant's prior drug conviction. (Health & Saf. Code, § 11370.2, subd. (c).) The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
BUTZ, J.