Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. PA063331, Kathryne Ann Stoltz, Judge.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Guadalupe Ramos Rivera appeals the judgment entered following his conviction by jury on three weapons and narcotics charges. Appellant contends that the trial court erred in using CALCRIM No. 3131 to instruct the jury regarding the special allegation that appellant was personally armed with a firearm in the commission of the offense of possession of methamphetamine for sale. Appellant’s second contention is that the trial court erred in allowing the prosecution to present evidence that appellant was unemployed at the time of the offense. We direct the superior court to correct the minute order and affirm in all other respects.
BACKGROUND
I. Factual Background
On November 11, 2008, Officer David Miner of the Los Angeles Police Department went to a house on Cranford Avenue in Los Angeles County to investigate reports of narcotics activity there. Miner was accompanied by Detective Jackson, Officer Mota, Officer Bonilla, and Officer Gowen. When the officers arrived, the house appeared to be vacant, but there was a motor home parked in front of the house. The garage door was open, and there were three men inside the garage, including appellant. Appellant told Miner his name and stated that he had sold the house and was living in the motor home.
The officers searched the vacant house and found two people inside the house. They ordered everyone to go out to the sidewalk, and Officer Bonilla searched appellant. Bonilla found a “small white plastic bindle” of methamphetamine and approximately $1,574 in a wallet in appellant’s pocket. Miner testified that there were fifteen $100 bills, three $20 bills, one $10 bill, and four $1 bills. Appellant was placed under arrest.
The officers then searched the motor home. The motor home had a sitting area behind the driver’s seat, adjacent to a kitchen area, and a bedroom area in the back of the motor home. The motor home was full of property, including clothing, dishes, and papers. Miner found documents from the Department of Motor Vehicles showing that appellant was the owner of the motor home.
The officers found a bowl containing two bags of methamphetamine in a cabinet above a sofa on the driver’s side of the motor home. One of the bags contained a large amount of methamphetamine and the other contained three individually wrapped amounts, wrapped similarly to the bindle found in appellant’s wallet. Small pieces of torn plastic bags similar to the plastic used to package the methamphetamine were on the floor beneath the shelf. There was a digital scale with methamphetamine residue on it beneath the bowl. A second scale with residue on it was found on the kitchen counter.
The methamphetamine was found on the lower shelf of the cabinet. The officers found a revolver on the upper shelf of the same cabinet. The revolver was not loaded, but there was ammunition of various sizes scattered around on the floor, on the sofa, and concealed in a sock on the floor.
II. Procedural Background
Appellant was charged with three counts: count one, possession for sale of a controlled substance (Health & Saf. Code, § 11378), with the allegation that he was personally armed with a firearm in the commission of the offense (Pen. Code, § 12022, subd. (c)); count two, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)); and count three, possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). Appellant pled not guilty, and the case proceeded to a jury trial.
At trial, Officer Luis Mota testified that he interviewed appellant at the police station after appellant’s arrest. Appellant told Mota that the methamphetamine was for personal use.
The prosecutor asked Mota if he asked appellant general questions during booking, such as name and date of birth, and Mota replied that he had. The following exchange then occurred:
“Q: Did you ask him about employment at all?
“A: Yes.
“Q: And is that one of the standard questions you asked during booking?
“A: Yes.
“Q: And did he indicate to you whether or not he
“[Defense counsel]: I’m going to object on relevancy grounds.
“The Court: Overruled.
“[Prosecutor]: Did he indicate to you whether or not he had any employment at the time?
“A: Yes.
“Q: And what did he say, if anything?
“A: He said he was unemployed.”
During her closing argument, the prosecutor argued that the amount of methamphetamine and the amount of cash found on appellant indicated that appellant possessed the methamphetamine for sale, not for personal use. She stated that “Officer Miner also said the denominations were consistent with sales. We’re talking well over $1,500. This is someone that wasn’t employed at the time. That’s a lot of cash to have.” There was no objection to this argument by defense counsel.
The jury found appellant guilty of all three counts and found true the allegation that appellant was personally armed with a firearm in the commission of count one. The court sentenced appellant to the high term of three years on count one, plus a consecutive three-year term for the gun allegation. The court imposed and stayed a three-year term on count two and imposed a term of eight months on count three, for a total sentence of six years, eight months. The court gave appellant credit for 68 days in actual custody and 34 days of good time/work time credit for a total of 102 days and imposed various fines and fees. Appellant filed a notice of appeal.
DISCUSSION
Appellant raises two claims on appeal. First, he contends that the trial court erred in instructing the jury on the allegation attached to count one that he was personally armed with a firearm in the commission of the offense. Second, appellant claims that he was prejudiced by the evidence that he was unemployed at the time of the offense. We will direct the superior court to correct the minute order dated April 30, 2009, which incorrectly includes the jury verdict on count two twice and fails to give the jury verdict on count three.
I. Jury Instruction
The trial court relied on CALCRIM No. 3131 when instructing the jury as to the special allegation that appellant was personally armed with a firearm in the commission of count one, possession for sale of methamphetamine. (Pen. Code, § 12022, subd. (c).) The instruction provided as follows: “If the People have proved that a firearm was found close to methamphetamine in a place where the defendant was frequently present, you may, but are not required to, conclude that: [¶] 1. The defendant knew the firearm was present; [¶] 2. It was not accidental or coincidental that the firearm was present together with the controlled substance; and, [¶] 3. During at least part of the time that the defendant allegedly possessed the controlled substance, he had the firearm close at hand and available for immediate use to aid in a drug offense.” Defense counsel did not object to this instruction.
Appellant contends that the instruction does not apply to his situation because he lived in a motor home, which has limited space, so the firearm’s proximity to the methamphetamine should not have allowed the jury to make any inferences regarding the truth of the special allegation.
Because appellant did not object to any of the jury instructions, respondent contends that appellant forfeited his challenge to the jury instruction. Appellant replies that he was not required to object because an objection would have been futile. He further contends that defense counsel rendered ineffective assistance by failing to object.
“Generally, a party may not complain on appeal about a given instruction that was correct in law and responsive to the evidence unless the party made an appropriate objection. [Citation.] But we may review any instruction which affects the defendant’s ‘substantial rights, ’ with or without a trial objection. (Pen. Code, § 1259.) ‘Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim - at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) The claimed error affected the substantial rights of the defendant if it “resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
If the jury instruction “is generally an accurate statement of law, though misleading in this case, ” and the defendant did not request clarification or amplification, the issue is forfeited on appeal. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) The jury instruction given by the court here was an accurate statement of the law. (See People v. Bland (1995) 10 Cal.4th 991, 1002-1003.) Appellant did not request clarification or amplification and therefore has forfeited the issue.
We decline to consider appellant’s claim that defense counsel’s failure to object to the instruction constituted ineffective assistance of counsel. “A defendant who raises the issue [of ineffective assistance of counsel] on appeal must establish deficient performance based upon the four corners of the record. ‘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.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) The record on appeal fails to show why defense counsel failed to object to the jury instructions. We therefore decline to consider appellant’s ineffective assistance argument.
Even if appellant had not forfeited the issue, reversal is not required. The firearm was found in the same cabinet as the methamphetamine. In addition, Officer Miner testified that narcotics dealers often use firearms to protect themselves from users, other dealers, and the police. Because of the strength of the evidence that the firearm was available for immediate use in the commission of the offense, it is not reasonably probable that appellant would have obtained a more favorable result if the trial court had not relied on CALCRIM No. 3131.
II. Evidence of Unemployment
Appellant’s second contention is that the trial court erred in allowing the prosecutor to introduce evidence of appellant’s unemployment. Respondent contends that appellant has forfeited this claim by failing to object to the prosecutor’s closing argument at trial. Appellant argues that objecting at trial would have been futile because the trial court already had overruled defense counsel’s objection to the prosecutor’s question regarding appellant’s employment status. Appellant did object to the introduction of the evidence that he was unemployed. We therefore will address his claim on appeal.
“Evidence of a defendant’s poverty or indebtedness generally is inadmissible to establish motive to commit robbery or theft, because reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice. (People v. Wilson (1992) 3 Cal.4th 926, 939.) However, evidence of a defendant’s poverty is admissible “for the limited purpose of refuting a claim that he did not commit the offense because he did not need the money, or to eliminate other possible explanations for sudden wealth after the occurrence of a theft offense. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1076.)
“‘The fact that the questions [regarding appellant’s employment] might disclose information derogatory to appellant’s character would not affect its pertinency nor constitute a valid objection to its admission [citations].’” (People v. Maldonado (2009) 172 Cal.App.4th 89, 98 (Maldonado).) In Maldonado, the court reasoned that the defendant’s statement to an officer that he was unemployed was relevant to show that the defendant had a motive to sell drugs. (Ibid.) In addition, the evidence was relevant to rebut the defendant’s assertion that he possessed drugs for personal use, not for sale. (Ibid.)
Here, similar to Maldonado, the evidence of appellant’s unemployment was relevant to refute appellant’s claim that he possessed methamphetamine for personal use only. As the prosecutor pointed out in her closing argument, the fact that appellant was unemployed supports the inference that the $1,500 found in appellant’s pocket came from methamphetamine sales. The trial court did not err in admitting the evidence of appellant’s unemployment.
III. Minute Order
The April 30, 2009, minute order incorrectly recites the jury verdict on count two twice and fails to include the jury verdict on count three. The trial transcript indicates that the jury found appellant guilty of count three and that the clerk read aloud the jury verdict form for count three. In addition, the abstract of judgment indicates that appellant was convicted of count three. Only the minute order is in error.
“‘The reason for requiring a minute entry of the judgment in a criminal case is to furnish a concise record showing the crime of which the defendant has been convicted and the punishment imposed, which will protect him against a subsequent prosecution for the same offense. [Citations.]’ [Citations.]” (People v. Zackery (2007) 147 Cal.App.4th 380, 386.) When the clerk’s minutes do not reflect the trial court’s oral pronouncement, the appellate court has authority to correct such errors. (Ibid.) The clerical errors in the April 30, 2009 minute order should be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
DISPOSITION
The clerk of the superior court is directed to correct the minute order. In all other respects, the judgment is affirmed.
We concur WILLHITE, J. MANELLA, J.