Opinion
C079219
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY WAYNE GOODSON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF144846)
A jury found defendant Anthony Wayne Goodson, Jr., guilty on two counts of selling marijuana and a single count of selling oxycodone. The trial court placed defendant on formal probation for three years with a condition that he serve 90 days in county jail.
On appeal, defendant contends the trial court erred in refusing his request to instruct the jury on simple possession as a lesser included offense of selling controlled substances. Defendant also contends the trial court erred by speaking to a single juror about defendant's potential punishment outside the presence of the remaining jurors and imposed conditions of probation that were unlawful.
Finding none of defendant's claims to have merit, we affirm the judgment.
BACKGROUND
Additional facts are included in the discussion where they are relevant. --------
In January 2015 the People charged defendant and his codefendant Rudy Garcia Gonzalez II with three felonies: (1) sale of marijuana on or about August 29, 2014; (2) sale of oxycodone on or about September 5, 2014; and (3) sale of marijuana on or about September 5, 2014. Defendant pleaded not guilty to all charges.
The following evidence was admitted at trial: In August 2014, Detective Sean Bellamy of the City of Davis Police Department received information that Gonzalez was dealing marijuana and possibly other narcotics. Bellamy was assigned the task of contacting Gonzalez to negotiate a sale. Toward that end, Bellamy began texting Gonzalez, asking to purchase some "fire," a potent form of marijuana. Gonzalez agreed to sell Bellamy two grams for $20 and they agreed to meet in a fast food parking lot on August 29, 2014, to finalize the deal.
On August 29, 2014, Bellamy arrived at the parking lot and texted Gonzalez, who responded. Gonzalez arrived soon thereafter with Edgar Burciaga, another adult male; both men arrived on foot. Gonzalez told Bellamy he had been unable to contact his supplier. Bellamy asked him to try again. Gonzalez stepped away and used his cell phone. After a brief phone call, Gonzalez returned and told Bellamy that he still could not contact his supplier. Bellamy asked him to look for another source and told him he would make it worth his time. Gonzalez stepped away a second time and made another call on his cell phone. As Gonzalez walked back toward Bellamy's car, defendant drove into the parking lot in a Honda Accord.
Bellamy heard defendant yell to Gonzalez and Burciaga from his car, "you guys want to get high?" Gonzalez and Burciaga walked over to defendant and spoke with him. Burciaga then walked back to Bellamy and asked if Bellamy wanted to follow them to "get it." Burciaga said, "he lives right here." About that same time, Bellamy heard defendant say, "I got to go to my mom's house to get it." Bellamy asked Burciaga where "that" was located; Burciaga responded, "it's over by AM/PM." Bellamy said he wanted either Gonzalez or Burciaga to stay with him, to ensure he was not going to get "jacked or ripped off." So Gonzalez got into Bellamy's car and Burciaga jumped in with defendant. Defendant then pulled his car behind Bellamy's. Bellamy saw Burciaga reach out his hand and rub his fingers together, which Bellamy understood to mean they needed the money. Bellamy gave Gonzalez $20 in cash. Gonzalez got out of Bellamy's car and gave the money to Burciaga. Gonzalez then got back in Bellamy's car.
About 15 minutes later, defendant returned and parked a short distance away from Bellamy's vehicle. Gonzalez got out of Bellamy's car and approached defendant's car. Meanwhile, Burciaga got out of defendant's car and into the passenger side of Bellamy's car and handed Bellamy approximately two grams of marijuana "buds." Bellamy called Gonzalez back over and gave him $5 for "hooking the deal up."
At that point, Gonzalez asked Bellamy if he was still interested in purchasing oxycodone. Bellamy said he was and asked Gonzalez "what they were" and "how much he wanted." Gonzalez walked to defendant's car and talked to defendant through the driver's side window. Gonzalez then walked back to Bellamy's car and said the pills were "30-milligram blue" and they were $25 each. Bellamy gave Gonzalez $25 and said he wanted to buy one. Gonzalez went back to talk to defendant, then turned around and told Bellamy he did not have any right now, but would have some in a "few days." Gonzalez then got in the car with defendant and left.
Thereafter, Bellamy exchanged more text messages with Gonzalez during which they discussed the oxycodone deal. Bellamy wanted to purchase three pills at $25 each. They arranged to meet at the same parking lot on September 5, 2014, to finalize the deal. Gonzalez did not show. Bellamy and Gonzalez exchanged additional text messages and agreed to meet in a different parking lot later that day. Gonzalez arrived with defendant at the later meeting; defendant was driving the same Honda Accord.
Gonzalez got out of defendant's car and into Bellamy's. He gave Bellamy three oxycodone pills and Bellamy gave him $75. Bellamy then asked Gonzalez if he had any more marijuana. Gonzalez said he did not have "any on him." Bellamy asked if "he" did, gesturing at defendant. Gonzalez got out of Bellamy's car and back into defendant's, where he talked to defendant for five to 10 seconds. Bellamy saw defendant reach behind the front passenger seat toward the floorboard, then turn back around and appear to look at something in his lap. Defendant then handed something to Gonzalez. Gonzalez walked back over to Bellamy's car, got into the car, and handed Bellamy marijuana.
Bellamy asked Gonzalez how much it was and told Gonzalez he wanted an "eighth [of an ounce]." Gonzalez did not know how much it was. Bellamy told Gonzalez he wanted to spend $45 for an "eighth," gave him $45, and told him to "check with him," gesturing toward defendant. Gonzalez took the money and returned to defendant's vehicle and spoke with defendant. Defendant again handed something to Gonzalez. Gonzalez got out of defendant's car and returned to Bellamy's. Inside Bellamy's car, Gonzalez handed Bellamy more marijuana and said that was the remainder for the $45 Bellamy had given him.
During trial, Juror No. 12 sent a note to the trial court: "I got to thinking about something @ lunch today. It may or may not bear on my qualification to go forward as a juror in this case. (Each defendant is charged w/3 felonies) Yesterday one of the attorneys asked if I have any religious or philosophical problems with sitting "in judgment" of another human being. I answered "No."
"My answer today (after something dawned on me at lunch) is "IT DEPENDS" This case involves 3 felonies. I definitely would have trouble sitting in judgment of an individual were my part in a jury verdict linked to either [¶] a: crime punishable by death [¶] or [¶] b: 3 not violent felonies punishable by automatic life in prison.
"In other words, I didn't think of capital crimes or felonies that might be punishable under the (3 strikes laws) as I answered the question yesterday.
"But this caveat weighs on my conscience now.
"I don't know the law. I don't even know if mandated sentencing under 3 strikes laws applies in this case.
"Nonetheless, in light of this adjustment to my answer re: the inability to sit in judgment of another person (assuming a life sentence is even applicable for 3 non-violent drug felony offenses), thank you for reviewing this before allowing me to proceed on this case.
"Thank you Your Honor"
In response to the note, the trial court addressed Juror No. 12 in the presence of defendant, defendant's counsel, and the prosecutor; the remaining jurors were not present.
"The Court: I did want to respond to your note
"Juror No. 12: Thank you.
"The Court: -- and tell you two things: Number one, the issue of punishment, as I told all jurors, is not an issue that should be thought about or discussed amongst the jurors. Do not consider punishment in any way, shape, or form.
"The only issue presented to the jury is guilt or innocence.
"Juror No. 12: Sure.
"The Court: Everything else, I take care of.
"However, in light of your note, let me assure you that, number one, the crimes charged in this case are not crimes punishable by death.
"Juror No. 12: Yeah.
"The Court: Nor are they crimes that are punishable by automatic life in prison.
"Juror No. 12: Thank you.
"The Court: Nor, in fact, are they even strikes under the law.
"Juror No. 12: Thank you.
"The Court: Now, having said that, forget about punishment, okay? That's not your concern.
"Will you assure me you can do that?
"Juror No. 12: I do assure you that.
"The Court: And you assure me you can make a decision on guilt or innocence?
"Juror No. 12: I do assure you that."
The jury found defendant guilty as charged. The trial court later imposed three years of formal probation and ordered him to serve 90 days in county jail and to pay numerous fines and fees.
DISCUSSION
A. Whether simple possession is a lesser included offense of sales, defendant has not shown prejudice.
Defendant contends the trial court prejudicially erred in refusing his request to instruct the jury on simple possession of a controlled substance as a lesser included offense of selling a controlled substance. Whether defendant is correct on this record, he has failed to show it is reasonably probable he would have received a more favorable outcome had the trial court given an instruction on simple possession.
In any criminal case, the trial court must instruct on the general principles of law relevant to the issues fairly raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) That obligation includes instructing on lesser included offenses if evidence is presented that, " 'if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' " (People v. Rogers (2006) 39 Cal.4th 826, 866 (Rogers).) "The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." (Breverman, at p. 154.) The court's sua sponte duty thus "prevents the 'strategy, ignorance, or mistakes' of either party from presenting the jury with an 'unwarranted all-or-nothing choice,' encourages 'a verdict . . . no harsher or more lenient than the evidence merits' [citation], and thus protects the jury's 'truth-ascertainment function' [citation]." (Id. at p. 155.)
The erroneous failure to instruct on a lesser included offense does not mandate a per se reversal, however. (Breverman, supra, 19 Cal.4th at p. 165.) Instead, the error is "subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, [] 836-837." (Rogers, supra, 39 Cal.4th at pp. 867-868.) "Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of." (Id. at p. 868; Breverman, at p. 165 ["misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome"].)
Here, we need not decide whether the trial court erred in refusing defendant's request for an instruction on simple possession because defendant cannot show prejudice from the purported error. In other words, it does not appear reasonably probable the jury would have found defendant guilty of simple possession had the instruction been given.
The evidence admitted at trial established that defendant was the person in control of the marijuana and the oxycodone. Defendant retrieved the narcotics from wherever they were stored, either his mom's house or his car. Defendant gave the narcotics to Gonzalez, who then gave them to Bellamy. Defendant dictated the price. While Gonzalez and Burciaga were clearly the face of the transactions, defendant was the one controlling the sales.
Thus, we conclude that on the totality of the record before us, it is not reasonably likely the jury would have found defendant guilty of simple possession. B. Defendant forfeited any claim the trial court erred in responding to a single juror's concerns about sentencing outside the presence of the other jurors.
Defendant contends it was error for the trial court to address the concerns of a single juror outside the presence of the remaining jurors and provide her with information regarding sentencing that was not shared with the other jurors. Defendant did not raise this objection at trial. Accordingly, the claim is forfeited on appeal.
The trial court may discharge a juror who "becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty . . . ." (Pen. Code, § 1089.) "Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged. [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 821.)
Here, Juror No. 12's note put the court on notice that he or she may be unable to perform his or her duty and "judge" defendant if a conviction would result in defendant serving life in prison. To inquire whether Juror No. 12 should be discharged, as was the court's duty, the court spoke with the juror in the presence of defendant, defendant's counsel, and the prosecutor. The court assured Juror No. 12 that life in prison was not a sentencing option and reminded the juror that sentencing was not a consideration in determining guilt. Juror No. 12 affirmed that he or she could make a decision regarding innocence or guilt without considering punishment. Defendant raised no objection to the process of the court's response or the content. Nor did defendant move for a mistrial after the court's discussion with Juror No. 12. The claim is thus forfeited on appeal. (See People v. Boyette (2002) 29 Cal.4th 381, 430 [defendant's failure to object to a trial court's proposed response to a jury question forfeits any claim of error].)
Defendant further contends his claim is not forfeited because counsel was ineffective for failing to object in the trial court. We are not persuaded.
To establish ineffective assistance, defendant bears the burden of establishing both that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80 L.Ed.2d 674, 694, 698]; People v. Kipp (1998) 18 Cal.4th 349, 366.) If a defendant fails to establish either component, the ineffective assistance claim fails and we need not address the other component. (Strickland, at p. 697 ; People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
In reviewing a claim of ineffective assistance, we accord great deference to trial counsel's reasonable tactical decisions (People v. Weaver (2001) 26 Cal.4th 876, 925; People v. Freeman (1994) 8 Cal.4th 450, 484) and reverse " 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' " (People v. Frye (1998) 18 Cal.4th 894, 980, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)
Here, contrary to defendant's assertion, we find there could be any number of reasonable tactical purposes for not objecting to the trial court's discussion with Juror No. 12. Trial counsel may have found the juror's concerns about "sitting in judgment" of others indicated he or she was more defense oriented. Perhaps trial counsel thought the alternate jurors were less favorable. Or, maybe defense counsel thought he had a rapport with Juror No. 12 and wanted to keep him or her on the jury. In short, on this record, defendant has failed to show that he received ineffective assistance of counsel at trial. C. The trial court properly imposed assessments and fees separate from the conditions of probation.
Defendant contends the trial court erred "in imposing a condition of probation that all fines and fees incorporated into the probation order be paid." We conclude the trial court properly imposed the assessments and fees about which defendant complains and affirm the probation order.
The trial court and defendant each executed the "Order Admitting Defendant to Formal Probation." On page three of the order, their signatures appear immediately below the 30th condition of probation. They executed that order in open court after the trial court reviewed the terms and conditions of probation with defendant. The trial court then attached to that order two pages of additional fees, assessments, and miscellaneous orders prepared by the probation department. Included within those two pages are fees and assessments that cannot be made a condition of probation, including attorney fees and probation fees. (See People v. Hart (1998) 65 Cal.App.4th 902, 907 [attorney fees and probation costs may not be conditions of probation].)
Defendant nevertheless argues that condition No. 10 contained within the probation order itself, expands the terms and conditions of probation to which he agreed to include those additional two pages of fees and assessments; thus rendering condition No. 10 unlawful. We do not read condition No. 10 as expansively.
Condition No. 10 of the probation order reads as follows: "Except where otherwise noted all financial obligations ordered herein are to be paid to the Yolo County Collection Services . . . or to the Yolo Superior Court Payment Center . . . ; Complete & sign a Financial Disclosure Statement as directed by Yolo County Collection Services, setting forth assets, liabilities, & income under penalty of perjury;
"Report to each location within 72 hours of this order, or within 72 hours of release from custody & make payment in such manner as each office directs and in accordance with any payment schedule established by each office; . . ." (Original italics & boldface.)
That neither attorney fees nor probation costs can be made a condition of probation is well-established law. (See People v. Hart, supra, 65 Cal.App.4th at p. 907.) We presume the trial court knows the law and ordered all fees and assessments appropriately; it is defendant's burden to establish otherwise. (Evid. Code, §664; People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
On this record, the two pages of fees, assessments, and miscellaneous orders were appended to the order of probation after defendant agreed to the terms of probation and the order of probation was executed. Moreover, the additional two pages are not consecutively numbered with the order of probation; the order of probation ends on page three and the additional two pages begin with page seven. Thus, it appears from the record that the fees, assessments, and miscellaneous orders contained in the two additional pages, were not intended to be additional conditions of probation. Condition No. 10 does not expressly include them but refers only to "financial obligations ordered herein." We thus conclude the record does not establish the trial court ignored the law and ordered the additional two pages of fees and assessments to be additional conditions of probation.
Accordingly, defendant has failed to meet his burden of showing error.
DISPOSITION
The judgment of the court is affirmed.
RAYE, P. J. We concur: ROBIE, J. MAURO, J.