Opinion
H036123
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. TONY FATHI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS080982A)
A jury found Tony Fathi (defendant) guilty of possession of a controlled substance where prisoners are kept (Pen. Code, § 4573.6). Thereafter, defendant waived his right to a jury trial on a prior strike allegation; the court found the allegation to be true. Subsequently, on September 23, 2010, the court sentenced defendant to the lower term of two years, doubled due to his prior strike conviction for a total sentence of four years. The court ordered the sentenced to be served consecutively to the sentence that defendant was already serving. The court imposed the minimum required restitution fund fine of $200. (Pen. Code, § 1202.4, subd. (b).) The court imposed but suspended a parole revocation fine in the same amount. (Pen. Code, § 1202.45.) On September 30, 2010, defendant filed a notice of appeal from the judgment.
Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested.
On May 19, 2011, we notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant filed a supplemental letter brief in which he asserts that the "viable issue on appeal is that the jury instruction that the court read for the second time did mislead and prejudice the jury to dismiss" his argument. Further, it appears defendant is arguing that as to a particular jury question, the court should have answered the question and given them the facts they sought.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.) We will consider defendant's letter brief pursuant to People v. Kelly, supra, 40 Cal.4th 106, and we will explain why we have rejected his contentions. (Id. at p. 113.)
Facts and Proceedings Below
At approximately 20 minutes before 8 p.m. on November 25, 2007, correctional officers at the Soledad Correctional Training Facility in Soledad saw defendant standing on the bottom tier in Y-wing. Defendant was standing at a table in the dayroom area with another inmate. Defendant had a foot on one of the seats, his hands in his pockets and appeared to be reaching back and toward the "lower end of his body."
Defendant appeared to be acting nervously, watching the staff and pacing around the tier. According to Officer Lopp, defendant was acting out of character; he was walking the tiers and speaking with inmates with whom he did not usually have contact.
Two officers took defendant into an office and closed the door so they could search him for contraband. Before Officer Lopp searched him, Officer Glaze asked defendant if he had anything on him, such as something sharp, that the officers should know about. Defendant responded that he did not.
Subsequently, Officer Glaze was promoted to Sergeant.
During a pat search, Officer Lopp felt a lump in defendant's right sock. He lifted the right leg of defendant's pants and rolled down defendant's sock, which caused a razor blade wrapped in toilet paper to fall to the floor. Officer Lopp handcuffed defendant and continued his search. Subsequently, Officer Lopp found a lump in defendant's left sock, which he removed. Four pieces of toilet paper fell out of the sock. The officer placed them into his pocket. Later, he removed the toilet paper from his pocket and found a black, sticky substance wrapped in plastic, which he believed to be heroin.
The four bindles that Officer Lopp found were sent to the Department of Justice crime laboratory for analysis. It was determined that one of the bindles contained a usable amount of heroin.
The Monterey County District Attorney charged defendant by information with one count of possession of a controlled substance where prisoners are kept. (Pen. Code, § 4573.6.) The information contained an allegation that defendant had suffered one prior strike conviction within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12.
Before trial, defense counsel filed a Romero motion in which he requested that the court strike defendant's prior conviction of murder. (Pen. Code, § 187.) The court denied the motion. The court found that although the prior conviction was approximately 20 years old, it was for the murder of a seven-month old baby. Further, the court felt that the possession of drugs in prison was serious compared to other non-prison settings due to the "potential for violence associated with illegal use and sales that effect things such as the collection of debts, enforcement of debts and the theft of the product."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
After hearing the evidence adduced above, the jury retired to deliberate. Subsequently, the court received a question from the jury asking what to do if the jurors did not agree on the verdict. With the agreement of counsel, the court gave the jury an additional instruction as follows: "Your goal as jurors should be to reach a fair and impartial verdict, if you're able to do so, solely on the evidence presented and without regard for the consequences of your verdict, regardless of how long it takes to do so. It is your duty as jurors to carefully consider, weigh, and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen and consider the views of your fellow jurors. [¶] In the course of your further deliberations you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. You should not hesitate to change a view you once held if you are convinced it is wrong, or to suggest other jurors change their views if you are convinced they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views. [¶] As I previously instructed you, each of you must decide the case for yourself, and each of you should do so only after a full and complete consideration of all the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict, if you can do so without violence to your individual judgment. [¶] Both sides are entitled to the individual judgment of each other. As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way that you deem appropriate. May I suggest that since you have been unable to arrive at a verdict thus far using the method that you have chosen, that you consider to change the method you have been following, at least temporarily and try a new method. An example of this would be that you may wish to consider having different jurors lead the discussions for a period of time. You may wish to experiment with reverse role playing by having those on one side of the issue present and argue the other side's positions, and vice versa. This might enable you to better understand each other's positions. [¶] By suggesting you should consider changing your methods of deliberations, I want to stress that I'm not dictating or instructing you as to how to conduct your deliberations, but merely find that it may be productive to make sure each juror has a full and fair opportunity to express his or her view, and consider and understand the views of the other jurors."
After telling the jurors to re-read CALCRIM Nos. 200 [Duties of Judge and Jury] and 3550 [Pre-deliberation Instructions], the court told the jurors that these instructions pertained to their duties as jurors and made recommendations as to how to deliberate. Thereafter, the court told the jury that the decision they made must be "based on the facts and the law." Then, the court ordered the jurors to continue deliberating.
Approximately 40 minutes later, the court received a second question from the jury shortly before the lunch recess. This note read, "The Juror [sic]is unable to arrive at the same verdict. Do we consider a deadlock?" Shortly after the lunch recess ended, the jurors sent another question. This question read, "Does the Defendant have the right or option of having the search videotaped or recorded? If so, is the defendant aware? If so, did he decline?"
As it appeared to the court that the jurors had resumed deliberations, the court did not respond to the question concerning the jury being deadlocked. As to the question concerning the search, the court discussed the question with counsel outside the presence of the jury and expressed concern that if the court answered the question the court "would be adding evidence . . . to the evidence [already] presented," which the court felt would be "outside the scope of the Court's duties." Accordingly, without objection from counsel, the court said that it would re-read CALCRIM No. 222. Thus, once the jury was recalled, pursuant to the first two paragraphs of CALCRIM No. 222, the court told that the jury that they "must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses, the exhibits submitted into evidence and anything else I told you to consider as evidence. [¶] Nothing the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case but their remarks are not evidence, their questions are not evidence. [¶] Only the witnesses['] answers are evidence. The attorneys['] questions are significant only if they help you to understand the witnesses['] answers. [¶] Do not assume that something is true just because one of the attorneys asked a question that suggested it was true." The court asked the jury to continue to deliberate. Approximately one hour later the jury returned a verdict of guilty.
Defendant's Contention
In essence, defendant argues that by re-reading CALCRIM No. 222, the court misled the jury into disregarding his "final argument as not being evidence." We find no error in the court re-reading the instruction. As the instruction notes, counsels' arguments are not evidence. (See People v. Barajas (1983) 145 Cal.App.3d 804, 809.)
As to defendant's argument that the court should have directly answered the question regarding the possibility of the search being videotaped, defendant's position pre-supposes that the judge knew the answer. Assuming that he did, the Evidence Code does provide that the judge presiding at a trial is competent to testify at that trial. (Evid. Code, § 700, 703.) However, the judge is precluded from testifying if a party objects. (Evid. Code, § 703, subd. (b).) We see no reasonable possibility that in this case the prosecutor would have agreed to the judge adding to the evidence already adduced at trial.
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The jury's findings were supported by substantial evidence, and were consistent with the court's instructions. The refusal to grant defendant's Romero motion, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fund fine and parole revocation fine is supported by the law and facts. At all times, defendant was represented by competent counsel.
Disposition
The judgment is affirmed.
ELIA, J. WE CONCUR: RUSHING, P. J. PREMO, J.