Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA096631, David Sotelo, Judge.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Respondent.
Kamala Harris and Edmund G. Brown Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Fabian Massey was convicted by a jury of two counts of possession of marijuana for sale, one count of possession of body armor by a person previously convicted of a violent felony and one count of possession of ammunition by a felon. The jury also found true special allegations he had committed each of the offenses while released from custody and on bail pending trial in connection with a separate offense. On appeal Massey contends several of his convictions and the jury’s special findings are not supported by substantial evidence. He also contends the trial court made improper and prejudicial remarks during voir dire and his counsel was ineffective. We reverse Massey’s conviction for possession of prohibited body armor by a violent felon, as well as the true findings on two of the on-bail enhancements, for lack of substantial evidence and remand for resentencing. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Massey was charged in an amended information with two counts of possession of marijuana for sale (Health & Saf. Code, § 11359) (counts 1 and 6), possession of body armor by a person previously convicted of a violent felony (Pen. Code, § 12370, subd. (a)) (count 2) and possession of ammunition by a felon (§ 12316, subd. (b)(1)) (count 3). It was specially alleged Massey had committed each of the offenses while on bail and awaiting trial in case number TA096631 (§ 12022.1) and had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667.5, subds. (b)-(i); 1170.12, subds. (a)-(d)). Massey pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code unless otherwise indicated.
The information also alleged separate counts against Massey’s codefendant, Melvin Gregory McDaniel.
2. The Trial
On April 7, 2008 Kevin Brown, a detective with the Los Angeles County Sheriff’s Department, and four sheriff’s deputies executed a search warrant at Steppers Shoe Care, a purported shoeshine and shoe repair business in Compton. During the search the officers recovered three large jars containing a total of 138 grams of marijuana; 11 boxes of plastic sandwich bags, each box containing 150 plastic bags; a ballistics vest; two boxes of ammunition for.40- and.45-caliber handguns; two loaded magazines for a.40-caliber pistol; a digital scale; and $1,346 in cash, mostly in bills of small denomination. Detective Brown did not find any paraphernalia for use in smoking marijuana. Although there was a shoeshine stand, it did not have the necessary foot pedals for customers to use, nor did the business have polish or other shine materials or any equipment for shoe repair. No coins, credit card receipts or checks made out to the business were found. Massey was arrested following the search and released on bail after he pleaded not guilty at his arraignment to the charge of possessing marijuana for sale. At trial Detective Brown opined, based on the amount of marijuana found, the number of plastic bags recovered, the presence of the digital scale and the absence of drug paraphernalia, that Massey possessed the marijuana recovered on April 7, 2008 (the subject of count 1) for the purpose of sale.
Although Massey asserts in his appellate brief that Detective Brown recanted his testimony that he had found a digital scale during the April search, the record reveals no such thing. Brown stated the digital scale depicted in exhibit 6 was found in July 2008, not April 2008. The digital scale to which Brown had referred in his direct testimony was depicted in trial exhibit 2.
On July 15, 2008 sheriff’s deputies executed another search warrant at Massey’s shoeshine business. This time, deputies discovered three large glass jars containing a total of 129 grams of marijuana, a digital scale, rolling papers to smoke marijuana, an ashtray and $450 cash, mostly in bills of small denomination. Deputies also found shoeshine supplies stored on the premises. No small plastic bags were found. During questioning by the sheriff’s deputies, Massey explained he often purchased marijuana from cannabis clubs and sometimes traded it for merchandise such as T-shirts.
Detective Patrick Escamilla, who led the search of Massey’s business on July 15, 2008, testified as an expert on the subject of possessing marijuana for sale. Based on the quantity of marijuana recovered from the July 15, 2008 search, the digital scale and Massey’s statement in July 2008 following his arrest that he sometimes traded marijuana for goods, Escamilla opined that Massey possessed the marijuana recovered in July 2008 (the subject of count 6) for the purpose of sale.
Menali Porchia testified for the defense. Porchia, who was employed by a bail bond company and also worked as a security guard, stated the ballistics vest and ammunition found in Massey’s shop belonged to her. She explained she had sublet space in Massey’s shop to store her belongings pending a move to a different residence. According to Porchia, the ballistics vest was stored at Massey’s shop in an unsealed bag near the couch or desk and the ammunition in a bathroom cabinet, to which Massey had access. Porchia did not tell Massey about the vest or the ammunition. On cross-examination Porchia admitted she did not own a gun and did not know the type of gun that would use the ammunition recovered in Massey’s store. She also stated her rental agreement with Massey was oral; she paid him in cash and did not have any receipts.
Massey did not testify. His defense at trial was that he had a physician’s recommendation to use marijuana for back pain and possessed it for his own medical use. Over the prosecutor’s hearsay objection, the court admitted documentary evidence of physician’s statements from Lloyd White, M.D. and physician’s notes authored by White recommending medical marijuana for Massey. He also introduced a medical marijuana card in Massey’s name. The People, in turn, introduced Massey’s medical records to rebut the claim he suffered from any physical pain condition requiring medical marijuana.
3. The Verdict and Sentence
The jury convicted Massey on all four counts and found each of the specially alleged on-bail enhancements to be true. In a bifurcated proceeding Massey admitted he had been convicted of robbery in 1994. The trial court denied Massey’s motion to strike the prior serious or violent felony conviction in the interest of justice and sentenced him to an aggregate state prison term of six years.
Massey was sentenced on count 1 to the middle term of two years, doubled under the Three Strikes law. The court also imposed a consecutive two-year enhancement for the on-bail enhancement (§ 12022.1). Imposition of sentence on counts 2, 3 and 6 was stayed pursuant to section 654.
DISCUSSION
1. Massey’s Convictions for Possession of Marijuana for Sale (Counts 1 and 6) Are Supported By Substantial Evidence
a. Standard of review
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
b. Governing law on possession with intent to sell
Unlawful possession of illegal or controlled substances for purposes of sale requires proof the defendant possessed the drug with the intent of selling it and with knowledge of both its presence and illegal character. (People v. Harris (2000) 83 Cal.App.4th 371, 374; People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) Intent to sell may be established by expert testimony from an experienced police officer. (People v. Newman (1971) 5 Cal.3d 48, 53 [intent element may be established by expert testimony from police officer that substance is possessed for purposes of sale based on quantity, packaging and normal use of individual], disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 861; People v. Hunt (1971) 4 Cal.3d 231, 238 (Hunt); Harris, at pp. 374-375.)
c. Brown and Escamilla were qualified to give expert testimony on possession with intent to sell; their testimony constitutes substantial evidence
Massey contends that, while Officers Brown and Escamilla were indisputably qualified as experts on unlawful marijuana sales, neither had any expertise in differentiating citizens who possess marijuana lawfully for their own personal, medical use as distinct from those who possess marijuana unlawfully with intent to sell. As a result, he asserts, neither officer was qualified to provide expert testimony on intent in this case; and absent their testimony, there is no substantial evidence in the record to support Massey’s convictions for possession with intent to sell.
The question whether the prosecution, in a case in which the defendant asserts a defense of lawful possession of marijuana under the Compassionate Use Act, must call an expert with experience distinguishing lawful, medical possession from unlawful possession to establish that defendant possessed marijuana for sale is currently pending before the Supreme Court in People v. Dowl (2010) 183 Cal.App.4th 702, review granted July 21, 2010, S182621.
In support of this position, Massey relies on Hunt, supra, 4 Cal.3d 231 and People v. Chakos (2007) 158 Cal.App.4th 357, 360 (Chakos). In Hunt the defendant was charged with, and convicted of, unlawful possession for sale of four vials of a restricted drug, methedrine. Each vial was labeled with pharmacy tags; each tube had a prescription number, the defendant’s name and the prescribing physician’s name. At trial the prosecution offered the testimony of a police officer who had extensive training and experience relating to the possession and trafficking of illegal drugs. Based on “the quantity [of drug] involved, the over-all street value, the normal use by an ‘individual, ’” the officer opined the methedrine was possessed by the defendant for sale. (Hunt, atpp. 234-235.) In reversing the defendant’s conviction for lack of substantial evidence, the Court held the officer’s testimony concerning intent to sell “carried little or no weight” because he had insufficient expertise regarding the lawful possession of methedrine for legal, medicinal use. (Id. at pp. 237-238.) In reaching this conclusion, the Court distinguished illegal drugs, which included at that time, marijuana, from those controlled substances that are legally possessed by prescription: “A different situation is presented where an officer testifies that in his opinion a drug, which can and has been lawfully purchased by prescription, is being held unlawfully for purposes of sale. In the heroin and marijuana situations, the officer experienced in the narcotics field is experienced with the habits of both those who possess for their own use and those who possess for sale because both groups are engaged in unlawful conduct. As to drugs [that] may have been purchased by prescription, the officer may have experience with regard to unlawful sales but there is no reason to believe that he will have any substantial experience with the numerous citizens who lawfully purpose the drugs for their own use as medicine for illness.” (Ibid.) “[I]n the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officer’s opinion that possession of lawfully prescribed drugs is for purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction.” (Id. at p. 238.)
In Chakos, supra, 158 Cal.App.4th 357, Division Three of the Fourth District Court of Appeal applied Hunt, supra, 4 Cal.3d 231 to a case in which the defendant (Chakos) claimed he lawfully possessed marijuana for medical purposes under the Compassionate Use Act of 1996. (See § 11362.5 [making possession of marijuana for medical purposes legal in certain circumstances]; People v. Wright (2006) 40 Cal.4th 81, 84.) According to the evidence at trial, Chakos was stopped by police, who searched his car and found a plastic bag containing seven grams of marijuana, a physician’s slip for medical marijuana and $781 in cash. A search of Chakos’s apartment yielded an additional six ounces of marijuana “stored in irregular amounts, ” a gram scale, a closed circuit camera trained on the entrance and 99 plastic bags described by the police officer expert witness as “phlebotomy bags” (the defendant was a phlebotomist). Chakos was charged with possession of marijuana with intent to sell. At trial a police officer with extensive training regarding selling and packaging marijuana but no experience in medical marijuana opined, based on the quantity of the marijuana, the surveillance system, the scale and the plastic bags, that Chakos possessed the marijuana for sale. In reversing Chakos’s conviction for possession with intent to sell for insufficient evidence, the Court of Appeal found no basis to distinguish this situation from the expert testimony presented in Hunt, supra, 4 Cal.3d 231: “The record fails to show that Deputy Cormier is any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale. [¶] In other words, Cormier was unqualified to render an expert opinion in this case. Under Hunt, that means there was insufficient evidence to sustain the conviction.” (Chakos, at pp. 368-369.)
The Compassionate Use Act “provides an affirmative defense” to the crime of simple possession, albeit, of course, not the crime of possession with intent to sell. (See § 11362.5, subd. (d); see also People v. Mower (2002) 28 Cal.4th 457, 464 (Mower) [lawful possession of marijuana under § 11362.5 is defense to simple possession charge]; People v. Mentch (2008) 45 Cal.4th 274, 289.) In 2003 the Legislature added section 11362.7 et seq., known as the “Medical Marijuana Program, ” to “address issues not included in the CUA [(Compassionate Use Act)] so as to promote the fair and orderly implementation of the CUA.” (People v. Wright (2006) 40 Cal.4th 81, 85.)
In suggesting that Hunt effectively requires a police officer (or other expert witness offering an opinion on intent) to be familiar with the patterns of medical marijuana possession in every case in which a medical marijuana defense is raised, the Chakos court paints with far too broad a brush. In Hunt the onlyevidence offered to support the opinion regarding the defendant’s intent was the quantity of the drug possessed. Yet, the Supreme Court observed that, under the officer’s “own testimony, the use by an individual could be up to 8 ccs. a day. The quantity [of the methedrine found] was less than 120 ccs. and could have been as little as a two-week supply.” (Hunt, supra, 4 Cal.3d at p. 238.) In those circumstances, the Court held, an expert would need to be familiar with patterns of lawful possession for his testimony to carry any weight. Significantly, the Court made clear the result would be different if other factors inconsistent with lawful possession were present: “In the absence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officer’s opinion that possession of lawfully prescribed drugs is for purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction. No such special circumstances were shown here....” (Ibid., italics added.)
In contrast to Hunt, here there was evidence of several significant facts “not to be expected” in connection with personal use, whether for medical purposes or otherwise. Detective Brown’s opinion concerning the marijuana that was the subject of count 1 was based not only on the amount of marijuana found, but also on the digital scale, the more than 1500 small plastic bags, a significant amount of ammunition, the absence of items necessary to smoke the marijuana and the cash found on the premises, as well as the absence of evidence suggesting Massey’s business actually functioned as a shoeshine shop. As to count 6, in addition to the marijuana, digital scale and cash that were found, Detective Escamilla based his expert opinion on Massey’s admission he had used marijuana as currency to obtain merchandise. (See People v. Peck (1996) 52 Cal.App.4th 351, 357 [“‘sale’ of drugs ‘includes transfers other than for money’”].)
Massey contends none of this additional evidence (especially in regard to count 1) should carry any weight, since there could be innocent explanations for the presence (or absence) of the items the detectives relied on in reaching their conclusion. Indeed, he emphasizes, the court said as much in Chakos: “One might posit, then, that individuals who may lawfully possess marijuana under state law for medicinal purposes will have patterns of purchase and holding that will reflect the practical difficulties obtaining the drug. Those practical difficulties could also explain the gram scale—anyone with the lawful right to possess marijuana will need to take precautions, not to ensure that he or she does not get ‘ripped off’ by a dealer, but that he or she does not possess more than the eight ounces contemplated by the [Compassionate Use] Act. Practical difficulties of obtaining the drug also explain why a patient entitled to possess it under state law might want to keep an extra supply on hand within the legal amount, since supplies would not be reliable. [¶] Now, are these speculations to be rejected because contradicted by the expert’s testimony on the record? No—and that is the point: The record fails to show that Deputy Cormier is any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use that would allow him to differentiate them from unlawful possession for sale.” (Chakos, supra, 158 Cal.App.4th at pp. 368-369.)
We agree with the general observation in Chakos, supra, 158 Cal.App.4th 357that evidence that appears to be inconsistent with personal use, when considered in a different context or with the assistance of additional evidence, in fact, may be wholly consistent with such use. Where we depart from Chakos is its holding that an expert in medical marijuana use is required in every case to support a conviction of possession with intent to sell when a compassionate use defense is raised. In cases unlike Hunt, supra, 4 Cal.3d 231, where the expert’s opinion is based on more than simply the amount of the drug or controlled substance, the availability of an innocent explanation for factors raising an inference of intent to sell will go to the weight of the evidence, not the qualifications of the expert. (See Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38 [“[w]here a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility”]; People v. Bolin (1998) 18 Cal.4th 297, 322 [same]; see also People v. Dennis (1998) 17 Cal.4th 468, 519 [expert may be impeached by cross-examination or by showing error in data upon which opinion is based].)
The People’s assertion that Chakos, supra, 158 Cal.App.4th 357 was wrongly decided because it unlawfully shifts the burden to the prosecution to disprove the defense of compassionate use misapprehends the People’s burden in such cases. It is true that, because possession of medical marijuana under the Compassionate Use Act is a defense, the People ordinarily have no obligation to present evidence in their case-in-chief to rebut such a claim. (See Mower, supra, 28 Cal.4th at p. 478.) However, if the defendant raises the compassionate use defense by providing some evidence that he or she possessed the marijuana for personal use with the recommendation of a physician, the People’s burden to demonstrate beyond a reasonable doubt that the marijuana was possessed illegally encompasses the burden to prove the marijuana was not legally possessed under the Compassionate Use Act. (See ibid.; see also CALCRIM No. 2304 [“The defendant is not guilty of possessing marijuana if he had a valid, written prescription for that substance from a physician... licensed to practice in California. The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid prescription. If the People have not met this burden, you must find the defendant not guilty of possessing a controlled substance.”].)
We see no reason under the rationale expressed in Hunt, supra, 4 Cal.3d 231 that a police officer with experience in marijuana sales but no experience in medical marijuana would be unqualified to opine that the existence of a payment ledger or buy/sell slips, for example, items that are highly inconsistent with personal use, were indicative of possession with intent to sell, even if the defendant asserted a medical marijuana defense and proffered the theory the ledger or payment slips related to something other than the sale of marijuana. Under those circumstances it would be for the jury to determine the weight to give the expert’s opinion in light of possible innocent explanation for the information he or she relied on in formulating the opinion. Similarly, Detectives Brown and Escamilla based their opinions on factors such as the presence of the digital scale, the more than 1500 small plastic bags and, in Detective Brown’s case, ammunition, items that certainly appear inconsistent with possession for personal use, whether for medicinal or recreational purposes, even if their presence at Massey’s store might also be excused by some plausible story. Whether or not Detectives Brown and Escamilla were well versed in medical marijuana use, their testimony constitutes substantial evidence to support the jury’s convictions on counts 1 and 6. (See People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [where substantial evidence supports finding of guilt, reviewing court must affirm even though evidence could have supported contrary inferences].)
2. Massey’s Conviction for Possession of Prohibited Body Armor by a Violent Felon Is Not Supported by Substantial Evidence
Prior to its amendment by the Legislature in 2010, former section 12370, subdivision (a), provided, “Any person who has been convicted of a violent felony, as defined in subdivision (c) of section 667.5, under the laws of the United States, the State of California, or any other state, government, or country, who purchases, owns, or possesses body armor, as defined by Section 942 of Title 11 of the California Code of Regulations, except as authorized under subdivision (b), is guilty of a felony....” (Stats. 1999, ch. 83, § 164.) Section 942, subdivision (e), of title 11 of the California Code of Regulations provided at the time of charged offense, as it does today, “‘Body armor’ is popularly called a ‘bulletproof vest.’ For purposes of these regulations, ‘body armor’ means those parts of a complete armor that provide ballistic resistance to the penetration of the test ammunition for which a complete armor is certified. In certain models, the body armor consists of ballistic panels without a carrier. Other models have a carrier from which the ballistic panels may be removed for cleaning or replacement.”
Section 12370 was amended in 2010 to redefine the term body armor: “(a) A person who has been convicted of a violent felony as defined in subdivision (c) of Section 667.5, under the laws of the United States, the State of California, or any other state government, or country, who purchases, owns or possess body armor, as defined in subdivision (f), except as authorized under subdivision (b), is guilty of a felony.” Subdivision (f) of section 12370 provides, “For purposes of this section, ‘body armor’ means any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor.”
During trial Detective Brown testified the vest seized from Massey’s store was a prohibited “bullet-proof vest.” He explained the words on the vest’s label stating the vest contained “removable ballistic panels” showed the vest had met statutory certification standards for ballistics resistance. After being properly instructed that “body armor” means “those parts of a complete armor that provide ballistic resistance to the penetration of the test ammunition for which complete armor is certified” (see Cal. Code Regs., tit. 11, § 942), the jury found the vest satisfied the definition of prohibited body armor.
In connection with the charge of possession of body armor by a felon, the jury was instructed that, to find the defendant guilty, the People must prove: “1. The defendant has been convicted of a violent felony, as defined in Penal Code 667.5(c) and [¶] 2. The defendant purchased, owned or possessed body armor as defined in Title 11 of the California Code of regulations.... ‘Body armor’ is popularly called a ‘bullet proof vest’ and for purposes of this code section means those parts of a complete armor that provide ballistic resistance to the penetration of the test ammunition for which complete armor is certified.”
Citing People v. Chapple (2006) 138 Cal.App.4th 540 (Chapple), Massey contends his conviction for possession of body armor by a felon is not supported by expert testimony that the vest found in his store qualified as body armor under former section 12370; accordingly, he contends, his conviction on this count must be reversed for lack of substantial evidence.
Contrary to the People’s contention, Massey did not forfeit this argument by failing to object to Brown’s testimony. According to Massey, even if Brown’s testimony was properly admitted, it is insufficient to support the verdict. (See Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [“Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception to the rule.”].)
In Chapple a police officer testified at the defendant’s preliminary hearing that, based on his 14 years in law enforcement and his experience and familiarity with bullet proof vests, the vest seized from the defendant’s possession qualified as a body armor vest under former section 12370. The magistrate presiding at the preliminary hearing ruled the police officer did not qualify as a ballistics expert, but allowed the officer’s testimony as admissible lay opinion. The trial court, reviewing the magistrate’s order under section 995, set aside the information on the ground lay opinion was inadmissible to prove the vest was body armor. On the People’s appeal from dismissal of the information, the Court of Appeal agreed with the trial court: “The crime charged consists of elements incapable of determination by the trier of fact without the assistance of an expert. [ Fn. omitted.] The body armor proscribed by [former] section 12370(a) must be certified based on its ‘ballistic resistance to the penetration of... test ammunition.’ [Citation.] Clearly, whether or not the vest seized in this case met such certification standards involve[d] concepts beyond common experience, and, thus, was a proper subject for expert testimony, but not for lay opinion.” (Chapple, supra, 138 Cal.App.4th at pp. 548-549.)
Massey errs to the extent he cites Chapple for the broad proposition a police officer must have expertise in ballistics testing to qualify as an expert witness on this point and then observes Detective Brown identified no such qualifications. Because neither party in Chapple had argued the officer was, in fact, qualified as an expert, the Chapple court was careful to explain it was not deciding the propriety of the magistrate’s ruling that the officer did not qualify as an expert. (Chapple, supra, 138 Cal.App.4th at p. 547, fn. 4.) In somewhat pedagogical fashion, the court reminded the parties that, contrary to the implication in their briefs, “expertise can be proven by ‘special knowledge, skill, experience [and] training’” in addition to education. (Ibid.) The court also rejected the implication that a prosecution expert would be obligated “to scientifically test body armor, ” noting that an expert could, of course, reasonably rely on information made known to him or her in concluding a bullet proof vest fell within the prohibition of former section 12370. (Id. at p. 548, fn. 6.)
Although Chapple is not as broad as Masseycontends, the People concede Detective Brown did not testify as an expert on the question whether the vest met certification requirements. Nonetheless, they argue the label on the vest, which Brown described, provides sufficient evidence of its certification as body armor prohibited under former section 12370. Contrary to the People’s contention, the language on the label identified by Brown, that the vest “contained removable ballistic panels, ” is simply not adequate by itself to establish the vest provides ballistic resistance to the penetration of the test ammunition for which a complete armor is certified. (See Chapple, supra, 138 Cal.App.4th549.) Indeed, as the Legislature recognized and cited as its basis for broadening the definition of “body armor” in the 2010 amendments to section 12370, not all bullet proof vests providing ballistic resistance necessarily meet the technical certification requirements under former section 12370. (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 408 (2010-2011 Reg. Sess.) as amended Jan. 26, 2010, at p. 5 [“When defining ‘body armor’ Penal Code Section 1270 currently references CCR Sections 841 and 942, which was intended to define ‘body armor’ certification for purchase and use by law enforcement. Uncertified but otherwise effective body armor is not currently illegal for ownership by a person convicted of a violent felony.”].) Because there was no evidence in the record from which a reasonable juror could properly infer the vest met the statutory certification requirements in former section 12370, Massey’s conviction on this count must be reversed for lack of substantial evidence.
The label in the vest did contain some indicia it met the certification requirements for ballistic resistance: It stated, “This armor carrier complies with NIJ STD 0101.03, ” a National Institute of Justice (NIJ) standard establishing minimum performance requirements and testing methods for the ballistic resistance of body armor to be used by law enforcement officers (see www.ncjrs.gov). However, Brown did not identify that language or explain its significance. Without some guidance as to the meaning of the technical language, no reasonable inference could be made that the vest satisfied former section 12370’s certification requirements. (See Chapple, supra, 138 Cal.App.4th at p. 539.)
In light of our conclusion that count 2 is not supported by substantial evidence, we need not address Massey’s alternative contentions that former section 12370 was unconstitutionally vague and the instructions to the jury omitted an essential element of the offense.
3. The Trial Court’s Remarks During Voir Dire Were Not Prejudicial
During voir dire the trial court remarked to the prospective jury panel, without objection, “You don’t judge books by their color or the quality of the cover. It just doesn’t belong in the courtroom. Does anybody think, ladies and gentlemen, that Mr. Massey or Mr. McDaniel [is] guilty just because what they look like as human beings in the courtroom? Anybody think, well, they look guilty?... Do any of you know what guilty people look like? Make a lot of money in law enforcement, I guess, if you had that ability. Ladies and gentlemen, do you understand—and I went through a little effort to find this—I’ll ask if anybody recognizes this photograph. I don’t know if you can see it. Good looking man here. Anybody recognize who this is? Before you say whether you recognize him, good looking or bad looking guy?... I think he’s a handsome guy. Anybody know who he is? It is Ted Bundy. Anybody heard of Ted Bundy? You think he looks like me? I never heard that one before. Ladies and gentlemen, why am I showing you this? Because if people were judged by their cover, he got away for a long period of time, permitted to murder 40 women that he admitted to. One of the most serious, significant serial murders of young women. Good looking man. Didn’t fit anybody’s stereotype. If we are judging people based on color of skin and stereotypes and how good looking or bad looking, we really got it wrong with him. Don’t you all agree?
“Now ladies and gentlemen, I’m not trying to be entertaining, but I want jurors who are smart and will not prejudge. Okay? Stereotyping doesn’t belong in this courtroom because we often get things wrong. You all agree you will not use stereotyping and judge on this factors? Anybody feeling I can’t do that, your Honor?... We want you to look at this evidence and follow it as rational and reasonable people without jumping to that instinct we get raised on watching television and movies in America.... Oftentimes it is not accurate. We need your commitment you can all do that, ladies and gentlemen.”
Massey contends the court’s comment deprived him of his federal and state constitutional rights to a fair and impartial jury and to due process of law (see U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16) because, no matter how well intended, the comment could have reasonably been understood by the jury as a suggestion that a well-dressed Massey, like Bundy, was guilty. (See People v. Rodriguez (1986) 42 Cal.3d 730, 766 [judicial comment must be “accurate, temperate, nonargumentative and scrupulously fair”; “trial court may not, in the guise of privileged comment, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power”].)
While the use of the picture was an unconventional approach to the jury that contained within it the potential for misunderstanding, Massey never objected to the comments in the trial court. Moreover, the court’s comments, separated from the picture, did not suggest the jury find Massey guilty on the basis of his appearance. Rather, they were made as a follow-up to the court’s question whether any juror believed a person was more likely to be responsible for a crime based on his race (Massey is African-American) In context, they amounted to a direction to the jury to put aside stereotypes of any sort and to consider the evidence as an impartial fact finder. (See People v. Hawkins (1995) 10 Cal.4th 920, 948 [court’s comment, in reference to expert ballistics witness, that Sigmund Freud’s lack of a Diagnostic Statistical Manual did not invalidate his work as a psychiatrist was within the bounds of propriety; “[court’s] role was one of clarification rather than advocacy”] overruled on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Taylor (1992) 5 Cal.App.4th 1299, 1316 [“[i]t is not error for a judge to remind prospective jurors that racial prejudice has no place in the courtroom”].)
Ordinarily, errors in voir dire must be brought to the attention of the trial court or they will be deemed forfeited on appeal. (People v. Seaton (2001) 26 Cal.4th 598, 635; People v. Staten (2000) 24 Cal.4th 434, 451-452.) In light of our conclusion the trial court’s remarks, in context, were not improper, Massey’s additional contention his counsel was ineffective for failing to object to them at trial necessarily fails. (See, e.g, People v. Slaughter (2002) 27 Cal.4th 1187, 1222 [ineffective-assistance claim fails when defendant not entitled to instruction he alleged his counsel should have requested; in such a case, counsel’s performance did not fall below objective standard of care]; see generally Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
4. The On-bail Enhancements for Counts 1 and 3 Must Be Reversed for Lack of Substantial Evidence
Counts 1, 2 and 3 charged Massey with possession of marijuana for sale, possession of body armor by a violent felon and possession of ammunition, all of which offenses were alleged to have occurred on April 7, 2008. As to each of these counts, the information also alleged the offenses were committed after Massey had been released from custody on bail or on his own recognizance in April 2008 in Los Angeles Superior Court case number TA096631. Yet, as the Attorney General concedes, case number TA096631 was the very case in which those charges were asserted and was initially filed after the date of Massey’s arrest, a fact that was apparent from the minute orders introduced as evidence at trial. The on-bail enhancements on counts 1 and 3 must be stricken. The only evidence at trial that Massey had been released on bail at the time he committed any of the charged offenses related to count 6, possession of marijuana for sale in July 2008.
Because we reverse Massey’s conviction on count 2 for lack of substantial evidence, any related enhancements fail as well.
The invalidity of the on-bail enhancement on count 1 requires that we remand the matter for resentencing. Massey was convicted on two counts of possession of marijuana for sale, counts 1 and 6. Rather than impose sentence on count 1, the court on remand should sentence Massey on count 6, which properly includes an on-bail enhancement, since that will now constitute “the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for specific enhancements.” (§ 1170.1, subd. (a); see § 654, subd. (a) [“act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment”].) At that time, the court should also reconsider the propriety of applying section 654 to stay sentence on counts 1 and 3, which involved acts committed by Massey three months prior to the offense in count 6. (See People v. Rodriguez (2009) 47 Cal.4th 501, 507 [§ 654 prohibits separate punishment for multiple offenses arising from same act or series of acts constituting an indivisible course of conduct].)
Massey contends the special allegations that he committed the offenses in counts 1 and 3 while on bail prejudiced his defense and may have contributed to the jury’s guilty verdicts on those counts. While Massey’s irritation at the inclusion of those enhancements may be understandable, we reject Massey’s contention the error prejudiced his trial and requires reversal of his convictions on those counts. Evidence that Massey had been arrested and out on bail at the time he committed the offense in count 6 was properly before the jury and would have been considered even if the enhancements had not been alleged as to the other counts. The additional on-bail allegations could not have had any meaningful impact on the jury, which was properly instructed it could only convict Massey on counts 1 and 3 if it found the prosecutor had proved every element of those offenses beyond a reasonable doubt. (See People v. Yeoman (2003) 31 Cal.4th 93, 139 [“we and others have described the presumption that jurors understand and follow instructions as ‘[t]he crucial assumption underlying our constitutional system of trial by jury’”]; People v. Young (2005) 34 Cal.4th 1149, 1214 [same].)
5. Massey’s Claims of Ineffective Assistance of Counsel Fail
At trial the prosecutor sought to present medical records to rebut Massey’s defense that he suffered from a medical condition requiring medical marijuana. Massey’s counsel successfully moved under Evidence Code section 352 to redact the records to eliminate all references to Massey’s treatment for sexually transmitted diseases. Despite the court’s order granting this request, medical records were presented to the jury that revealed Massey had been treated for chlamydia and/or gonorrhea in 2006. Massey contends his counsel’s failure to ensure this information was completely redacted from the records before they were presented to the jury constituted ineffective assistance of counsel. We need not consider whether Massey’s counsel was deficient in this regard. In light of the strong evidence of his guilt on counts 1, 3 and 6, even assuming the jury understood the meaning of the medical terms at issue, it is not reasonably probable Massey would have received a more favorable verdict had the terms been fully redacted. (See In re Fields (1990) 51 Cal.3d 1063, 1079 [In considering a claim of ineffective assistance of counsel, it is not necessary to determine “‘whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an effectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’”]; Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674] [defendant must demonstrate “reasonable probability” that absent the errors the result would have been different].)
DISPOSITION
The judgment is reversed with respect to the conviction on count 2 and the on-bail enhancements as to counts 1 and 3, and the matter remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: WOODS, J., ZELON, J.
The 2010 amendment was adopted largely in response to the decision by Division Three of this court in People v. Saleem (2009) 180 Cal.App.4th 254, review granted March 10, 2010, S179660, holding that the definition of “body armor” in former section 12370, subdivision (a), and corresponding regulations, was unconstitutionally vague. (See Assem. Com. on Public Safety, analysis of Sen. Bill No. 408 (2010-2011, Reg. Sess.) as amended Jan. 26, 2010, p. 5). The Supreme Court dismissed its grant of review in Saleem following the Legislature’s amendment of the statute. (See Saleem, review dismissed Sept. 1, 2010, S179660[“[r]eview in the above-entitled matter is dismissed in light of the 2010 amendments to Penal Code section 12370 (Stats. 2010, ch. 21.)”].) We consider only former section 12370, in effect at the time Massey was arrested and tried, in addressing his challenge to his conviction on count 2. (People v. Wallace (2009) 176 Cal.App.4th 1088, 1091 [defendant may only be charged with the version of statute in effect at the time he or she committed the offense]; see generally People v. Alford (2007) 42 Cal.4th 749, 753 [as a general rule, a new or amended statute is presumed to operate prospectively rather than retroactively in the absence of a clear and compelling indication that the Legislature intended otherwise].)