Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF103625A, SF102749A, ST038791A
BUTZ, JUDGE
In case No. SF102749A, defendant Mario Antonio S. Rodriguez entered a guilty plea to possession of cocaine (Health & Saf. Code, § 11350, subd. (a) count 1) and driving with a blood alcohol content of 0.08 percent or more, a misdemeanor (Veh. Code, § 23152, subd. (b) count 3), and admitted a prior driving under the influence conviction (Veh. Code, § 23540). On January 4, 2007, the court dismissed other charges in the interests of justice and granted probation for a term of five years.
Undesignated statutory references are to the Health and Safety Code.
In case No. SF103625A, a jury convicted defendant of possession of cocaine for sale (§ 11351 count 1) and possession of methamphetamine for sale (§ 11378 count 2). In bifurcated proceedings, the court sustained a prior drug conviction allegation [1995 violation of § 11352] (§ 11370.2, subd. (a)). Based on defendant’s new offenses, in May 2007 the court found defendant to be in violation of probation in case No. SF102749A.
The court sentenced defendant to state prison for an aggregate term of seven years four months as follows: in case No. SF103625A, the midterm of three years for possession of cocaine for sale, a consecutive one-third the midterm or eight months for possession of methamphetamine for sale, and a consecutive three-year enhancement for the prior drug conviction; and in case No. SF102749A, a consecutive one-third the midterm or eight months for possession of cocaine, and a concurrent term on the misdemeanor driving offense.
Defendant appeals in both cases. In case No. SF103625A, he contends the trial court erroneously: denied his motion to disclose the identity of the confidential informant, precluded cross-examination of an officer about the confidential informant, permitted hearsay testimony about the laboratory report, and modified CALCRIM No. 252. Defendant also claims insufficient evidence supports the trial court’s finding on the prior conviction. With respect to sentencing in the two cases, defendant contends the trial court erroneously stayed sentencing on a second prior drug conviction finding when it should have stricken the same and failed to state reasons for imposing consecutive terms. We agree only that the trial court should have stricken the second prior drug conviction. We reject defendant’s remaining contentions and shall otherwise affirm the judgment.
The notice of appeal also lists case No. ST038791A in which defendant pleaded no contest to driving under the influence with a blood alcohol content of 0.08 percent or more, a misdemeanor, and was granted probation for a term of three years in June 2005. The record reflects no subsequent proceedings. Defendant raises no issues related to the case. The People request that this court deem the notice of appeal untimely and the appeal inoperative in case No. ST038791A. Defendant does not object or otherwise respond to the People’s request. We will dismiss the appeal in case No. ST038791A as untimely filed.
We will not recount the underlying facts in case No. SF102749A since they are not relevant to the issues raised on appeal.
On February 22, 2007, Stockton police officers executed a search warrant at a residence on Oregon Avenue. Defendant was present. Officers found defendant’s identification card in the house. In the bedroom, officers found 0.04 grams of suspected cocaine in a folded $10 bill in a shirt pocket. In the kitchen, officers found a Pringles container with a false bottom containing three packages of drugs: one with 8.72 grams of cocaine; the second with 1.63 grams of methamphetamine; and the third with 12.95 grams of methamphetamine. They also found a digital scale and $900 “crammed down” the garbage disposal. In the living room, officers found: three cellular phones; $835 in a pair of pants; and $848 in a hollowed-out statue of Jesus Malverde. No drug paraphernalia associated with personal use was found in the house. During the search, defendant stated to an officer that “the narcotics located in the kitchen area” were his, that he did not sell drugs but possessed the drugs for his personal use, and that he used “cocaine and methamphetamine every one to two hours a day” by snorting the drugs. Defendant did not appear to be under the influence of drugs.
This substance was not tested by the laboratory.
A narcotics investigator testified that the amount of drugs in the Pringles container equaled 291 doses of methamphetamine and 174 doses of cocaine. The investigator knew of no one who used both methamphetamine and cocaine. He explained that Jesus Malverde is known as a patron saint for drug traffickers, that drug traffickers prayed to the saint at least once a day for protection against the police, and that the statue was used for spare change after a drug deal. The investigator expressed his opinion that defendant possessed the drugs for sale based on the totality of the evidence; that is, the large amount of drugs, the two types of drugs, the fact the drugs were hidden in the false bottom of the Pringles container, the large quantity of cash, the fact some of the cash was hidden in the garbage disposal, the digital scale, the number of cellular phones, the lack of drug paraphernalia, and the statue of Jesus Malverde. The investigator had the same opinion that defendant possessed the drugs for sale based on the quantity alone.
Defendant did not testify. The defense called no witnesses.
DISCUSSION
I. Confidential Informant
Defendant first contends the trial court made two erroneous rulings related to a confidential informant. First, defendant claims the trial court erred in denying his motion to disclose the identity of the confidential informant referred to in the search warrant affidavit. And, second, defendant claims the trial court erred in precluding cross-examination about the confidential informant. We find no error with respect to these rulings.
A. Motion to Disclose
In his affidavit in support of the search warrant, Detective Wesley Grinder included information of a tip from a confidential reliable informant (CRI) about his purchases of narcotics for the prior year from “Pablo,” describing him as an “Hispanic male, in his [mid-to-late] 20’s, approximately [5 feet 5 inches] and 140 pounds.” Grinder also stated that the CRI described the cars Pablo drove, identified the two residences where the narcotics transactions occurred, and recounted the cellular phone numbers Pablo used. Grinder stated that he showed the CRI a photo of defendant and the CRI positively identified defendant as “Pablo” from whom the CRI had purchased narcotics at the residences previously described.
Detective Grinder recounted the CRI’s involvement in a controlled purchase of narcotics from defendant as follows:
“On or between 02/01/07 and 02/15/07, I met CRI at a predetermined location in an attempt to purchase cocaine from ‘Pablo’ (Mario Rodriguez). The CRI and CRI’s vehicle were initially searched for illegal contraband and/or money with negative results. The CRI was fitted with a listening/audio device so we could monitor and record conversations the CRI may have.
“The CRI was given a sum of pre-recorded money with which to purchase a quantity of cocaine. Officer Garlick and I then followed the CRI to an area where a call was made to ‘Pablo’ using telephone number 209-[xxx-xxxx].
“Officer Garlick listened to the phone call that was made to ‘Pablo[.’] During the call Officer Garlick heard the conversation between CRI and ‘Pablo’ to be consistent with narcotics sales. CRI advised that ‘Pablo’ was going to send out a ‘runner[.]’ (A runner is a subject who delivers the narcotics for a drug dealer so the dealer can disassociate himself with the narcotics transaction.)
“Once the conversation was over, Officer Garlick and I followed the CRI to another predetermined location where ‘Pablo’ was to deliver the narcotics. After a short time, a white Pontiac... arrived. The CRI met with the driver of this white Pontiac.... Once the CRI met with the driver Officer Garlick heard conversation consistent with a narcotics transaction.
“I met the CRI at another predetermined location where I retrieved the narcotics that were just bought. The CRI and CRI’s vehicle were again searched for illegal contraband and/or money with negative results.”
The court issued the warrant on February 21, 2007, and the police executed the warrant on February 22, 2007. Defendant was charged with possession of cocaine and methamphetamine for sale “[o]n or about [February 22, 2007].” Defendant was not charged with the sale to the CRI the week before.
Defendant moved to disclose the identity of the CRI, claiming that the informant was a material witness on the issue of guilt or innocence. Defendant argued there was a reasonable probability the CRI could exonerate him, claiming the numbers the CRI called did not match the numbers of the phones collected in the search. Further, defendant disputed the CRI’s claim that he had bought drugs from defendant for over a year. Defendant argued the CRI was an eyewitness in the sense that he participated in the controlled buy that led to the search warrant. Specifically, defendant claimed the CRI “might testify” as follows:
“a. The confidential informant might testify that there were persons present at the apartment shortly before the defendant’s arrest who appeared to be occupants or who exercised control over the contraband.
“b. The confidential informant might testify that he had spoken to other persons and not the defendant on the telephones with the numbers mentioned in the preliminary examination.
“c. The confidential informant might testify that he had purchased narcotics from other individuals at those same phone numbers.
“d. The confidential informant might testify that he has purchased narcotics from other persons at the address stated in the preliminary examination.
“e. The confidential informant may state that he has never purchased narcotics from the defendant before. The defendant denies ever selling drugs to the confidential informant before.”
In opposition, the prosecutor cited People v. Dimitrov (1995) 33 Cal.App.4th 18, 30-31 (Dimitrov) for the proposition that a motion to disclose is properly denied where the offense is not any particular sale to a CRI but instead is possession for sale at some time in the future.
At the motion hearing, defendant argued in addition that Detective Grinder made “incorrect assumptions” in the affidavit in support of the search warrant and in forming his expert opinion that defendant possessed the drugs with intent to sell. Defendant suggested that the CRI might contradict his prior identification of defendant as “Pablo” or could verify that he called a number to a cellular phone that did not match the number to the cellular phones found during the search.
In denying the motion to disclose, the trial court determined that defendant’s purpose of disclosure was to attack probable cause and that the confidential witness was not material to whether defendant possessed the drugs for sale on February 22, 2007, the date of the search, a significant period of time after the alleged sale to the CRI.
Analysis
The trial court properly determined that disclosure of the CRI was not required to attack the probable cause for issuance of the search warrant. “It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause.” (People v. Hobbs (1994) 7 Cal.4th 948, 959, italics omitted; Evid. Code, § 1041, subd. (a)(2).)
However, “the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing ‘“‘some evidence’”’ on this score.” (People v. Lawley (2002) 27 Cal.4th 102, 159 (Lawley); Evid. Code, § 1042, subd. (d).)
On similar facts, People v. Alderrou (1987) 191 Cal.App.3d 1074 (Alderrou) and Dimitrov, supra, 33 Cal.App.4th 18 found the trial court did not abuse its discretion in concluding the CRI was not a material witness. While the informant(s) made a controlled buy and had previously witnessed or participated in a drug transaction with the defendants, the defendants in Alderrou and Dimitrov were not prosecuted on evidence of a particular sale or sales but, instead, each was prosecuted based upon evidence of possession at the time of arrest, that is, “on the quantity of cocaine found in [the defendant’s] possession combined with the scales, cutting compound, and other apparatus and supplies he also possessed which are typically associated with cocaine intended for sale rather than for personal use.” (Alderrou, supra, 191 Cal.App.3d at pp. 1076-1077, 1080-1083 [quote on p. 1081]; Dimitrov, supra, 33 Cal.App.4th at pp. 24, 29-31.)
The same is true here. Defendant was not prosecuted on the evidence of the sale to the CRI the week before or any other sale or sales but instead on the evidence of possession when the residence was searched. The trial court did not abuse its discretion in denying defendant’s motion to disclose the identity of the CRI because there was no reasonable possibility the CRI could give evidence that might have exonerated defendant. (Lawley, supra,27 Cal.4th at p. 159.)
B. Detective Grinder’s Trial Testimony
Based on all the evidence found in the house, that is, the different types of drugs, the amount of drugs, the large amount of money, the location of the money, especially that which was hidden in the statue and garbage disposal, the number of cellular phones, the digital scale, the paraphernalia related to Jesus Malverde (e.g., pictures, key chains, statues), and the lack of drug paraphernalia related to personal use, Detective Grinder opined that the cocaine and methamphetamine were possessed for sale. On cross-examination, defense counsel asked and Grinder confirmed that cellular phones were important pieces of evidence. Grinder also confirmed that he had scrolled through the numbers on two of the three cellular phones found at the scene looking for text messages, phone calls, phone numbers and names of known narcotics sellers/buyers at defense counsel’s request and found none. The third cellular phone did not work. Grinder confirmed that confidential informants work with officers in controlled buys. When defense counsel asked whether Grinder found “[a]ny number from any of your confidential informants that you have called people to buy drugs from” on one of the cellular phones found at the scene, the prosecutor objected to “anything that has to do with confidential informants.” The court sustained the objection. Grinder thereafter confirmed that he found no numbers on the two cellular phones that he was familiar with, either incoming or outgoing calls. He admitted that he did not order the phone records for the cellular phones found in the search.
Outside the presence of the jury, defense counsel argued that he wanted to ask the detective about the phone call that the CRI made, allegedly to defendant in the controlled buy the week before the search, and confirm that it did not show up on the cellular phones found in the search. The prosecutor argued it was not relevant since defendant was not charged with the sale to the CRI. Defense counsel insisted that it was relevant to the officer’s opinion which was based on the totality of the evidence. The court concluded that the relevance was tenuous and, in any event, more prejudicial than probative in that it had the possibility of confusing the issues.
Analysis
The trial court did not err in concluding that a phone call by the CRI setting up a prior sale by “Pablo,” who may have been someone other than defendant, was not relevant; that is, the evidence would have no tendency in reason to discredit Detective Grinder’s opinion that a week later, defendant possessed two kinds of drugs for sale. In any event, the trial court did not abuse its discretion in concluding that introduction of evidence related to a prior transaction would risk confusing the jury. (Evid. Code, § 352; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Clair (1992) 2 Cal.4th 629, 655.)
Defendant was charged with possession for sale not the sale to the CRI the week before and the prosecutor did not rely on the sale to the CRI to prove the possession case against defendant. Although he relied in part on the number of cellular phones found, the narcotics investigator did not testify that he relied on the sale to the CRI in forming his opinion, based on the totality of the evidence, that defendant possessed the drugs for sale. The evidence of defendant’s intent to sell with respect to the drugs found a week later was overwhelming, that is, the large amount and two kinds of drugs, hidden in a secret compartment, a digital scale, the amount of money, some hidden in a garbage disposal and some in a hollowed-out statue, multiple cellular phones, and paraphernalia related to the patron saint of drug traffickers and none related to personal drug use. Defendant suggests that he merely hid his cash and did some drugs and that there may have been someone else in the home selling drugs. Defendant ignores the evidence of his admission that all the drugs in the kitchen belonged to him, that no drug paraphernalia for ingestion of drugs was found in the home and that defendant was not under the influence at the time of the search. Any evidence that a call from the CRI the week before did not appear on the cellular phones that worked, that is, two out of the three cellular phones found in the home, would have had the possibility of confusing the jury as the trial court concluded. The jury would have been guessing whether the CRI’s phone number had appeared on the cellular phone that did not work which would have had nothing to do with the case against defendant.
II. Hearsay Testimony Re: Laboratory Report
The criminal laboratory supervisor testified rather than the laboratory analyst who performed the testing of the drugs found during the search. Defendant claims for the first time on appeal that the trial court’s admission of such testimony violated his federal constitutional right to confrontation (Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). Recognizing that the lack of an objection renders the issue forfeited, defendant claims counsel’s failure to object constituted ineffective assistance of counsel.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) To demonstrate deficient performance, defendant must show that counsel “failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425.) “‘Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’” (People v. Zapien (1993) 4 Cal.4th 929, 980.) Where “‘“the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) “[A] claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)
Where defendant has failed to demonstrate prejudice, we need not determine whether counsel’s performance was objectively deficient. (Strickland, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699].) “Generally,... prejudice must be affirmatively proved.” (Ledesma, supra, 43 Cal.3d at p. 217.) To demonstrate prejudice, defendant must show that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (Id. at pp. 217-218; People v. Williams (1997) 16 Cal.4th 153, 215.)
Crawford held that out-of-court testimonial statements are barred by the Sixth Amendment’s confrontation clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 38, 42, 59 [158 L.Ed.2d at pp. 184, 187, 197].) Crawford did not define the term “testimonial,” but gave examples (1) “ex parte testimony at a preliminary hearing,” (2) “[s]tatements taken by police officers in the course of interrogations,” (3) grand jury testimony, and (4) prior trial testimony. (Id. at pp. 51-52, 68 [158 L.Ed.2d at pp. 193, 203].) Crawford stated, “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law....” (Id. at p. 68 [158 L.Ed.2d at p. 203].) Thus, we may consider “reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial.” (Id. at p. 57 [158 L.Ed.2d at p. 196].) Crawford also noted that the confrontation clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Id. at p. 59, fn. 9 [158 L.Ed.2d at p. 198].)
In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis) the United States Supreme Court considered “when statements made to law enforcement personnel during a 911 call or at a crime scene are ‘testimonial’ and thus subject to the requirements of the Sixth Amendment’s Confrontation Clause.” (Id. at p. 817 [165 L.Ed.2d at p. 234].) Davis held: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822 [165 L.Ed.2d at p. 237].)
In People v. Geier (2007) 41 Cal.4th 555 (Geier), over the defendant’s objection, the DNA expert for the prosecution, Dr. Robin Cotton, opined that a sample taken from a rape victim matched the DNA profile of the defendant. Cotton was the laboratory director for a private company that performed DNA testing for both the prosecution and the defense. The laboratory was accredited. Cotton had degrees in molecular biology and biochemistry, had been involved in researching DNA for 15 years, and, at the laboratory, oversaw testing and supervised the six analysts who conducted the actual testing. Cotton had testified as a DNA expert about 20 times. The defendant argued that since Cotton had not conducted the testing herself, she could not testify. The trial court overruled the objection, finding that the results were a business record but, even if the records were hearsay, Cotton could rely upon the testing results in rendering an expert opinion. (Geier, at pp. 593-596.) The defendant argued on appeal that Cotton’s testimony violated his constitutional right under the Sixth Amendment. The California Supreme Court disagreed, finding the DNA report was not a testimonial statement under Crawford because the observations made by the laboratory analyst during the testing of the sample were “contemporaneous recordation of observable events rather than the documentation of past events.” (Geier, at pp. 598, 605.) Geier also stated that Davis confirmed that “‘the proper focus [about whether an out-of-court statement is testimonial] is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial.’” (Geier,at p. 605.) Geier determined Crawford did not apply to routine forensic evidence. (Geier, at p. 607.)
Melendez Diaz v. Massachusetts (2009) ___ U.S. ___ [174 L.Ed.2d 314] (Melendez Diaz), filed on June 25, 2009, held that a certificate of analysis, showing the nature and weight of a controlled substance recovered from the defendant, was indistinguishable from a sworn affidavit, and fell within the “‘core class of testimonial statements,’” and, thus, was subject to the requirements of Crawford. (Melendez Diaz, at p. ___ [174 L.Ed.2d at p 321; see also id. at pp. 320-322].) On June 29, 2009, four days after deciding Melendez Diaz, the United States Supreme Court denied certiorari in Geier (Geier v. California (2009) ___ U.S. ___ [174 L.Ed.2d 600]).
Defense counsel’s performance was not deficient. Geier, supra,41 Cal.4th 555was filed on July 2, 2007. Defendant’s trial began on September 18, 2007, and he was sentenced on October 29, 2007. Defendant’s trial occurred after Geier was decided and before a petition for certiorari was even filed in Geier (Nov. 14, 2007, No. 07 7770). Several months after defendant’s trial, certiorari was granted in Melendez Diaz (Mar. 17, 2008, No. 07 591, ___ U.S. ___ [170 L.Ed.2d 352]). Therefore, if defense counsel had objected to the testimony of the criminal laboratory supervisor, the trial court would have been required to follow Geier, supra,41 Cal.4th 555 (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Any objection would have been futile.
Moreover, Melendez Diaz is distinguishable. A sworn affidavit, in lieu of testimony, was used to prove a fact, that is, the nature and weight of the controlled substance. Here, a criminal laboratory supervisor testified about the results of the analysis of the substances done by someone else. The supervisor opined that the analyst followed established laboratory procedures. The analyst made notes during the testing and, based on the notes, prepared a report. The supervisor reviewed the notes and report and testified about the same. Although the report was admitted into evidence without objection (and probably erroneously admitted since the report seems to fall within the “core class of testimonial statements” identified in Crawford (Melendez Diaz, supra, ___ U.S. ___ [174 L.Ed.2d at p. 321])), the supervisor testified as an expert as to the analysis done on the controlled substances, albeit done by someone else.
Assuming Melendez Diaz applies and the supervisor’s testimony was subject to the requirements of Crawford as well, defendant cannot establish the prejudice prong of ineffective assistance of counsel. During the search, defendant admitted that the narcotics were his, that he possessed the drugs for his personal use, and that he used cocaine and methamphetamine every few hours each day. Moreover, the drugs were hidden, which reflects that defendant knew the substance was contraband. At trial, defense counsel asked the supervisor only one question with respect to the testing of the drugs he asked whether the analyst had performed any test to determine the purity of the drugs. The analyst had not. Defendant did not testify and called no witnesses. Defense counsel argued that the issue was defendant’s intent since defendant had confessed that he possessed drugs and knew what they were. Defense counsel conceded in argument that defendant bought $200 worth of drugs off the street and used the same. Defense counsel argued there was insufficient evidence of an intent to sell, noting that defendant had claimed he possessed the drugs for his personal use.
There was no issue with respect to the nature and weight of the controlled substances. Defendant admitted he possessed the controlled substances found in his home; the only issue at trial was whether he intended to sell the same. Defendant has not shown that he suffered prejudice. Defendant has failed to establish ineffective assistance of counsel for failure to object to the analyst’s report or the testimony of the criminal laboratory supervisor, who testified rather than the laboratory analyst who performed the testing of the drugs.
III. Modification to CALCRIM No. 252
Defendant contends the trial court prejudicially erred in modifying CALCRIM No. 252 to state that possession for sale does not require the joint operation of act and intent. We conclude that the error was harmless.
The court instructed the jury in the modified language of CALCRIM No. 252 as follows:
“Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent except for the crimes charged in Counts 1 and 2.
“The following crime requires general criminal intent: Simple possession of controlled substance. To be guilty of this offense, a person must not only commit the prohibited act, but must do so intentionally or on purpose. It is not required, however, that the person intended to break the law. The act required is explained in the instruction for each crime.
“The following crime requires a specific intent or mental state: Possession for sale of controlled substance. To be guilty of this offense, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for each crime.” (Italics added.)
Initially, we note that defendant did not object. Although no objection is required where the erroneous instruction affects the substantial rights of the defendant (Pen. Code, § 1259), defendant is required to so demonstrate. He cannot do so here.
The court instructed the jury in the same instruction that the charged offenses of possession of cocaine and methamphetamine for sale required that the act be committed with a specific intent and that “[t]he act and the intent or mental state required are explained in the instruction for each crime.” The court instructed on the elements of the crime of possession of a controlled substance for sale, which required the prosecution to prove that “[w]hen defendant possessed the controlled substance, he intended to sell it.” (CALCRIM No. 2302.) In view of the entire charge to the jury, we conclude there was no “reasonable likelihood the jury applied the challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803.)
In any event, the error in the modification of the first sentence of CALCRIM No. 252 was harmless beyond a reasonable doubt. (People v. Mayfield (1997) 14 Cal.4th 668, 774.) The evidence was overwhelming that defendant specifically intended to sell that which he possessed. Further, the prosecutor informed the jury in closing argument that it was his burden to prove beyond a reasonable doubt that when defendant possessed the controlled substances, he did so with the intent to sell the same.
IV. Sufficiency of Evidence of Prior Conviction
Defendant contends insufficient evidence supports the trial court’s finding on the prior conviction. We disagree.
In bifurcated proceedings, the prosecutor introduced a certified copy of a California Law Enforcement Telecommunications System (CLETS) report and a Penal Code section 969b packet to prove that defendant had been convicted previously of violating Health and Safety Code section 11352 in 1995 for purposes of a three-year enhancement pursuant to section 11370.2, subdivision (a). The CLETS report reflects that Mario Sanchez Rodriguez (defendant) used several names, including Jose Pablo Contreras and Jose Pablo Serrano, and dates of birth in the past to identify himself and that he was convicted in Merced County in 1995 of violating section 11352. The prison records for Jose Pablo Contreras reflect the Merced County conviction was sustained when the inmate was 18 years of age. The prison records include a 1995 photograph of Jose Contreras and indicate that he had a scar by his right eye and a tattoo of an eagle on his right forearm.
In finding the prior conviction allegation to be true, the court stated: “Okay. This is an older picture. I do note that the hair is significantly different. The person in the picture does, to me, look like defendant in the eyes, nose, and shape of the mouth, also the chin. I would have liked to have fingerprints. I think that’s better evidence. [¶] Based on the evidence that I do have, I do find beyond a reasonable doubt that the person [who] was identified in these documents, [exhibits] A and B, in fact, is the person before me[, who] is also defendant Mario Sanchez Rodriguez. [¶] I do find the prior conviction true, that this defendant did suffer a conviction on or about August 28th, 1995, for a violation of Health and Safety Code section 11352.”
Defendant claims the evidence was insufficient because neither Rodriguez nor Contreras is an unusual name and that the date of birth and height in the CLETS report differ from that in the prison records. We conclude sufficient evidence supports the trial court’s finding on the prior.
“The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt.... [¶] Such evidence may, and often does, include certified documents from the record of the prior proceeding and commitment to prison.... [¶]... [¶] [T]he trier of fact may draw reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record, and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction.” (People v. Miles (2008) 43 Cal.4th 1074, 1082-1083 (Miles), italics omitted; People v. Henley (1999) 72 Cal.App.4th 555, 561; Pen. Code, § 969b.) On appeal, we review the evidence in the light most favorable to the trial court’s finding to determine whether it is supported by substantial evidence. (Miles, supra,43 Cal.4th at p. 1083.)
The CLETS report reflects that defendant, Mario Sanchez Rodriguez, used several names and dates of birth in the past to identify himself. With respect to the difference in the reported height in the CLETS report (5 feet 9 inches) (ct. exh. B) and the prison records (5 feet 5 inches), there are many possible explanations. Defendant disputes the People’s suggestion that he grew four inches since 1995 when he was 18 years of age. He is now 31 years of age. Notwithstanding the variances, the trial court had the advantage of comparing the photograph with defendant who stood before it and could determine if he was the same person. Although the trial court did not mention the scar by the right eye, the trial court referred to defendant’s eyes as being the same as the person in the photo. Sufficient evidence supports the trial court’s finding. (See People v. Foster (1988) 201 Cal.App.3d 20, 26 [no fingerprint evidence but photo of defendant sufficient for jury to conclude defendant same person who was convicted of prior].)
V. Enhancement for Prior Drug Conviction
In case No. SF103625A, the court selected count 1 as the principal term and imposed the midterm of three years with a three-year enhancement for the prior drug conviction under section 11370.2, subdivision (a). For count 2, the court imposed a consecutive one-third the midterm or eight months. The court orally stated that the three-year enhancement for the same prior drug conviction under section 11370.2 was “stay[ed].” While the clerk’s minutes reflect the second enhancement was stricken, the abstract of judgment reflects that the same was stayed.
In reviewing the abstract of judgment, we note an error in item 1. In case No. SF103625A, a jury convicted defendant of counts 1 and 2. The abstract reflects that defendant was convicted by a plea. We shall order the abstract corrected.
Defendant contends and the Attorney General concedes that the trial court erred in failing to strike the second enhancement for the same prior. We agree (People v. Tillotson (2007) 157 Cal.App.4th 517, 542) and shall order the enhancement stricken.
VI. Imposition of Consecutive Sentences
Defendant finally contends that the trial court failed to state reasons for imposing consecutive sentences. Although he had ample opportunity to do so, defendant did not object in the trial court and cannot do so for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) The issue is forfeited by counsel’s failure to object.
DISPOSITION
The appeal in case No. ST038791A is dismissed as untimely (see fn. 2, ante). The judgment in case No. SF103625A is modified, striking the enhancement for the prior drug conviction under section 11370.2, subdivision (a), attached to count 2. The trial court is directed to prepare an amended abstract of judgment accordingly, which shall include a corrected item 1 to reflect that defendant’s convictions in case No. SF103625A were by jury, not by a plea. A certified copy of the amended abstract must be forwarded to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed in its entirety.
I concur: HULL, J., RAYE, JUDGE.
I concur fully except as to part II relating to the testimony of the laboratory supervisor. As to part II, I concur in the result.
Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [174 L.Ed.2d 314] stands only for the proposition that the admission of a laboratory certificate of analysis purporting to certify the nature and weight of a controlled substance in lieu of testimony from a laboratory analyst violates a criminal defendant’s rights under the confrontation clause. (U.S. Const., 6th Amend.) As the majority opinion makes clear, those facts are not before us. Here a laboratory supervisor, presumably with at least the same expertise as the examining analyst, testified regarding the procedures employed to analyze samples of the suspect substances. Thus, Melendez-Diaz has no application to our case; under People v. Geier (2007) 41 Cal.4th 555 and other well-established precedent, defendant’s claim of a confrontation clause violation must be rejected. There is no need to labor over the question of trial counsel’s ineffectiveness or the harmlessness of any error. Counsel was not ineffective for failing to press a nonmeritorious claim. There was no error.