Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 08HF1713, Dan McNerney, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant Mohsen Youssefinejad of transporting opium (Health & Saf. Code, § 11352, subd. (a)(1); all further statutory references are to this code unless noted) and possessing opium for sale (§ 11351). We appointed counsel to represent defendant on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against her client, but advised this court she found no issues to support an appeal. We provided defendant 30 days to file his own written argument. That period has passed, and we have received no communication from him. Consequently, we conducted a review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Defendant filed a petition for writ of habeas corpus in propria persona contending he received ineffective assistance of counsel when his lawyer failed to conduct a thorough investigation or prepare for trial. (In re Mohsen Youssefinejad, G043016) The petition raised no specific allegations, and we denied the petition by order filed January 14, 2010, without issuance of an order to show cause.
The evidence at trial disclosed that in early June 2008, a New York airport customs agent discovered over 14 pounds of opium, worth $30,000 or more per pound wholesale, hidden in a picture frame in a package shipped from Turkey. The package was addressed to “Euro & America” with an address on South Grand Avenue in Santa Ana. Federal agents equipped the package with a GPS tracking device, and a device that signaled when the package was opened. They monitored delivery of the package. Defendant accepted and signed for the package at the Santa Ana address, an auto repair or parts business without an identifying sign.
Before and after receiving the package, defendant engaged in conduct law enforcement agents interpreted as countersurveillance techniques. Before delivery, defendant walked twice out of the business looking into parked and passing cars. Soon after delivery, he drove around without the package, stopping frequently and looking at passing cars before returning to his shop. A few hours after his initial foray, defendant left with the package. He drove to a strip mall parking lot, adjacent to a post office, and opened the box with a screwdriver. He looked into the box and then surveyed the parking lot before closing the box. He went into a liquor store, and then walked to a fast-food restaurant. He froze when he heard a siren, which turned out to be a fire engine.
Defendant drove away from the strip mall to an industrial business complex. He parked in an alley, stayed about 20 minutes, and then returned to his shop, leaving the package in his car. He got into another vehicle and was arrested leaving the parking lot.
Defendant testified he was an auto parts wholesaler who did not seek walk-in customers. Before receiving the package, he walked down the street looking for a Federal Express delivery truck because he had a package ready for shipping. He was anxious to leave because he had a toothache and wanted to see a dentist. He looked into cars because some of them had been towed to his business and he wanted to make sure they were locked.
When the package arrived, defendant did not look closely at it and never claimed it belonged to him. He assumed it contained auto parts. He drove to a dentist recommended by a customer, who had not provided him with an exact address. He pulled over, first to look at directions, and then again after he realized he was lost. Believing he was too late to see the dentist, he returned to his business.
Defendant left again to return the package to the post office. He wrote on the label “‘return to postal office, not belong to us.’” When he got to the strip mall, he opened his rear hatch but saw the post office door was closed and a person inside was locking the door. He closed his hatch, bought some cigarettes at the liquor store, and walked over to get some food.
Defendant drove to the industrial building to get a circuit breaker. He had been there before and entered through a side door. The business did not have the part and he returned to his auto shop. He left the package in his car intending to return it the following day. He had two teeth removed in jail a few months later.
A jury convicted defendant as charged, and on April 3, 2009, the trial court sentenced defendant to a four-year midterm for transporting opium, staying execution of sentence on the possession for sale count. (Pen. Code, § 654.)
DISCUSSION
Counsel identifies four potential issues for our review: (1) Whether sufficient evidence supports defendant’s conviction he possessed opium for sale; (2) whether the trial court erred by instructing the jury over his objection on consciousness of guilt; (3) whether the trial court abused its discretion by denying probation based on the quantity of opium; and (4) whether trial counsel’s failure to object to the prosecutor’s closing argument concerning defendant’s failure to produce evidence constituted ineffective assistance of counsel.
Sufficiency of the Evidence
An appellate court reviews the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence, defined as evidence that is “‘“‘reasonable, credible, and of solid value....’”’” (People v. Elliot (2005) 37 Cal.4th 453, 466.) “‘The test is whether substantial evidence supports the [verdict], not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. omitted.) This places “an enormous burden” on a defendant challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Section 11351 provides, “every person who possesses for sale or purchases for purposes of sale... any controlled substance [including opium] shall be punished by imprisonment in the state prison for two, three, or four years.” “The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character.’” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) The offense of possession for sale requires proof of the purpose of the possession, i.e., to sell the substance. (See In re Christopher B. (1990) 219 Cal.App.3d 455, 466.) The offense is committed whether the possessor intends to personally sell the substance or intends that someone else sell it. (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1731-1732.) The opinion of an expert that defendant possessed narcotics for sale, based on quantity, is sufficient to support conviction. (People v. Peck (1996) 52 Cal.App.4th 351, 357.) Possession of a large amount of the substance “itself affords a reasonable inference of possession for sale. [Citation.]” (People v. Grant (1969) 1 Cal.App.3d 563, 570.)
Given defendant’s conduct and other circumstances surrounding his receipt and transportation of the package, and the large quantity of opium and the expert testimony, there is no arguable issue whether sufficient evidence supports defendant’s conviction.
Instruction on Consciousness of Guilt
Judicial Council of California Criminal Jury Instructions CALCRIM No. 362 provided here, “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
In People v. Beyah (2009) 170 Cal.App.4th 1241, the court expressed doubt CALCRIM No. 362 should be used to permit an inference of consciousness of guilt based on knowingly false or intentionally misleading statements in a defendant’s trial testimony and invited the Judicial Council’s advisory committee to clarify its intended use of the instruction. (Id. at pp. 1248-1249, 1251.) The current version of CALCRIM No. 362 clarifies it applies only to false or misleading statements made “before this trial relating to the charged crime.” (CALCRIM No. 362 (Rev. 2009).)
The prosecutor explained in requesting the instruction that defendant initially told agents he did not open the package, and then stated he wiggled it. He also claimed he was waiting for a Federal Express delivery, and then stated the delivery had occurred earlier.
Evidence demonstrated defendant opened the package containing the opium, and defendant made misleading statements concerning the Federal Express delivery. No arguable issue exists whether the trial court erred in providing CALCRIM No. 362 over defendant’s objection.
Denial of Probation
Penal Code section 1203, subdivision (b)(3), provides that if “the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation.” The primary considerations in granting probation are “[t]he safety of the public, which shall be a primary goal through the enforcement of court-ordered conditions of probation; the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant....” (Pen. Code, § 1202.7.) Criteria affecting the decision to grant or deny probation involve facts relating to the crime and facts relating to the defendant. (Cal. Rules of Court, rule 4.414(a)(1)-(a)(9), (b)(1)-(b)(8).) The facts relating to the crime include “[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime.” (Rule 4.414(a)(1).) The fact that a crime involves a large quantity of contraband is an aggravating circumstance (People v. Maese (1980) 105 Cal.App.3d 710, 725) and may be considered in determining whether to grant probation. (People v. Butler (1988) 202 Cal.App.3d 602, 607-608.) The decision whether to grant or deny probation is within the trial court’s discretion. (People v. Lai (2006) 138 Cal.App.4th 1227, 1256-1257.) “As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘“exceeds the bounds of reason, all of the circumstances being considered.”’ [Citations.]” (People v. Welch (1993) 5 Cal.4th 228, 233-234.) No arguable issue exists whether the court abused its discretion by denying probation based on the quantity of opium.
Ineffective Assistance of Counsel
During closing argument, the prosecutor stated “clearly and unequivocally in this case the burden [of proof] is mine,” and “I take the burden to prove my cases beyond a reasonable doubt every time I walk into the courtroom” and “there’s no burden on the defense to prove innocence. None whatsoever.” The prosecutor then stated “let’s talk about what you reasonably would expect to see if any part of the defendant’s story was true using your common sense. [¶] We know the defendant has the power to subpoena.... So you would expect if the defendant’s testimony is true at all you would have testimony from an expert witness saying that it is understandable that a drug smuggler would send drugs to a stranger. You would expect to hear from an expert observations of the defendant absolutely don’t rise to the amount to be countersurveillance. How about a customer of the defendant confirming that he has any kind of business. How about somebody that sold him parts. Anybody. How about just one. How about the former owner of the Jeep who he just so happened to do this particular repair even though he doesn’t do that and bought the Jeep. Doesn’t know who they are and no way to contact them. [¶] How about any of the employees from any of the businesses he worked with. How about the Asian mechanic that referred him to a dentist without an address. Just like I do, he has the ability to get this testimony. He has more of an ability because I have to subpoena it. [¶] Anyone that sent a package to the defendant for any reason, wouldn’t you... want to hear from that person. How about anyone who received a package from the defendant. Anyone from [Federal Express] who would say they delivered a package or picked up a package or were expecting. How about the manager of the business complex to say what the name was on the lease or anything. How about anyone from the post office, the liquor store, Taco Bell, County Circuit where he said he went in there and asked for some kind of diagram. [¶] How about any of the dentists that we’ve heard about in this case. How about the one that keeps an open period of time from 1:30 to 1:45 every day just in case someone wants to walk in. Why didn’t we hear from that dentist? Why didn’t we hear from the dentist that treated him a month later and noticed he needed to have two teeth pulled? You want to know why we didn’t hear that? It’s not true. Absolutely, unequivocally not true.” The prosecutor noted there were no records or documents to corroborate or confirm defendant’s story.
The prosecutor may make fair comments upon the evidence presented by the defense (People v. Jones (1997) 15 Cal.4th 119, 186) and comment on “a defendant’s failure ‘to introduce material evidence....’ [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 262-263.) Although there is no duty on either party to call all possible witnesses who might be competent to testify to matters in issue, the unexplained failure to call a material witness may be the subject of appropriate comment. (Ibid.) Defense counsel is not required to make futile objections or advance meritless arguments. (People v. Cudjo (1993) 6 Cal.4th 585, 615-616; Strickland v. Washington (1984) 466 U.S. 668, 688 [counsel’s performance must fall below an objective level of reasonableness and prejudice defendant].) No arguable issue exists whether trial counsel was ineffective by failing to object to the prosecutor’s closing argument.
We discern no other arguable issues defendant could present on appeal. Accordingly, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.