Opinion
E065840
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. PAUL JAMES LAFRANCE, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIF1408704 & RIF1200931) OPINION APPEAL from the Superior Court of Riverside County. Irma P. Asberry, Judge. Affirmed as modified. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In case No. RIF120093, defendant and appellant Paul James LaFrance pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted that he had suffered a prior drug-related conviction (§ 11370.2, subd. (c)). In return, the remaining allegations were dismissed and defendant was sentenced to a stipulated split sentence of three years in county jail and three years on mandatory supervision.
All future statutory references are to the Health and Safety Code unless otherwise stated.
In case No. RIF1408704, a jury found defendant guilty of manufacturing concentrated cannabis (§ 11379.6, subd. (a); count 1), possession of methamphetamine for sale (§ 11378; count 2), and unlawful possession of ammunition (Pen. Code, § 30305, subd. (a); count 3). Defendant thereafter admitted that he had suffered three prior drug-related convictions (Health & Saf. Code, § 11370.2) and three prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant also admitted that he was out on bail when he committed the instant offenses (Pen. Code, § 12022.1). Defendant was sentenced to a total term of 15 years four months in state prison in case No. RIF1408704, and a consecutive term of eight months in case No. RIF1200931, for a total term of 16 years on both cases. Defendant was awarded 313 days' credit for time served in case No. RIF1408704.
The sentence in case No. RIF1408704 consisted of five years on count 1, plus consecutive eight months on counts 2 and 3, plus six years for two of the prior drug-related convictions, and one year for one prior prison term. The remaining prior drug-related conviction and two prior prison term enhancements were stayed.
The sentence in case No. RIF1200931 consisted of eight months on count 1. The prior drug-related enhancement was stayed. --------
Defendant appeals from both cases.
I
FACTUAL BACKGROUND
A. Case No. RIF1200931
Defendant admitted that on or about November 23, 2011, he possessed methamphetamine for sale.
B. Case No. RIF140870
On May 6, 2014, Riverside County Sheriff's Department deputies searched defendant's home. During the search, in the garage, on or near a shelf above a workbench, Deputy Arturo Mendez found a small tin container holding a dark wax-like substance resembling concentrated cannabis or hash oil, a can of propane, a can of butane, and pieces of plastic that appeared to have been torn from plastic grocery bags. In addition, Deputy Steven Leone found in the garage a jar containing marijuana and a glass tube containing a substance resembling "hash oil residue." The deputies also found in the garage a box containing 30 rounds of live ammunition, mail addressed to defendant, and a digital scale with a substance resembling "methamphetamine residue" on it.
In a dresser drawer in defendant's bedroom, a deputy found shotgun ammunition. Deputies also found methamphetamine pipes in the house, and found no methamphetamine in close proximity to the pipes.
In a hollow fence post on the north side of the house, deputies found four baggies containing methamphetamine and a pistol magazine containing three bullets. The house had a video surveillance system that monitored the exterior.
After defendant waived his constitutional rights, Deputy Mendez interviewed defendant in his front yard. Defendant reported that the bedroom belonged to him; that he had taken the ammunition from a "youngster" for safety purposes; that he kept the methamphetamine for his personal use; and that he had made the concentrated cannabis over a year ago. Defendant denied possessing the methamphetamine for sales purposes.
Kristin Rager, a criminalist supervisor at the California Department of Justice Riverside Crime Laboratory, testified that using commonly accepted scientific methods, she had determined that the glass jar contained 13.447 grams of marijuana; that the glass tube contained marijuana residue; that the tin container contained concentrated cannabis; and that three of the plastic baggies found in the fence post contained methamphetamine that weighed .146 grams, .820 grams and .384 grams, respectively. She had not examined the contents of the fourth plastic baggie, which contained an unidentified powder substance.
Rager defined concentrated cannabis as "the resin derived or obtained from marijuana," and explained that, to produce concentrated cannabis, one can place marijuana in a tube, cover one end of the tube with a filter, and insert butane gas into the other end of the tube. The material that passes through the filter will pool into a wax-like substance that contains a high percentage of "Delta-9-THC," the active ingredient of marijuana.
Deputy Leone opined that the amount of methamphetamine found in the baggies hidden in the fence post resembled amounts commonly sold in "street level" methamphetamine transactions. Deputy Leone also found the following facts indicative of intent to sell methamphetamine: the location of the methamphetamine in the fence post; the methamphetamine pipe without any methamphetamine in it and the methamphetamine found in different locations; defendant having possession of a digital scale, capable of weighing substances in increments of one-tenth of a gram, with methamphetamine residue on it; torn plastic bags found in defendant's residence; and defendant's home being equipped with an outdoor surveillance system. Based upon the above circumstances, Deputy Leone opined that defendant possessed the methamphetamine for sale.
Deputy Leone also opined that the glass tube resembled tubes commonly used to manufacture concentrated cannabis. He found it significant that the tube contained marijuana residue; that the tube had been found with a rubber band on it, commonly used to secure a filter to the end of tubes used to manufacture concentrated cannabis; that the tube's narrow end fit the opening of the butane can found in defendant's garage; and that a small amount of concentrated cannabis had been found in the tin container. Deputy Leone further concluded that defendant had manufactured small quantities of concentrated cannabis.
Pursuant to Evidence Code section 1101, subdivision (b), Deputy Rico Garcia testified that he and other deputies had served a search warrant on defendant's residence in November 2011. In the garage of defendant's residence, deputies found 15.2 grams of methamphetamine (including packaging), a methamphetamine pipe, a digital scale with methamphetamine residue on it, and about a half ounce of marijuana. Based on the facts used to obtain the search warrant, the amount of methamphetamine, and the digital scale, Deputy Garcia opined that defendant had possessed the methamphetamine for sale.
II
DISCUSSION
Defendant appealed from the judgment in both cases, and we appointed counsel to represent him on appeal. After examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his two-page supplemental brief, defendant, without citation to authority or developing arguments, lists 14 reasons why the judgment should be reversed. His list includes such claims as ineffective assistance of counsel, defective search warrant, tainted evidence, prosecutorial misconduct, fabricated charges, police officers testifying outside field of expertise, jury selection violations, and sufficiency of the evidence. We reject defendant's contentions. We have examined the entire record and are satisfied that defendant's attorney has fully complied with his responsibilities and that no arguable issues exist relating to defendant's convictions. (People v. Wende, supra, 25 Cal.3d 436.) The issues raised by defendant are not arguable.
First, defendant offers no legal basis, nor can we find any, for his claims of error. (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 690, fn. 18 [failure to develop an argument or cite any authority in support of a contention results in the forfeiture of the issue on appeal].)
Second, we find defendant's purported arguments unmeritorious. In determining whether there is sufficient evidence to support a conviction, we review " 'the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cravens (2012) 53 Cal.4th 500, 507.) " 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence.' " (Ibid.) The jury, not the appellate court, must be convinced of the defendant's guilt beyond a reasonable doubt. (Id. at pp. 507-508.) If the circumstances reasonably support the jury's finding of guilt beyond a reasonable doubt, we will not reverse even if we believe that we might reasonably reconcile the circumstances with a contrary finding. (Id. at p. 508.) We will affirm the conviction " 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Ibid.)
Here, the evidence of defendant's guilt was overwhelming. Marijuana, ammunition, and equipment to manufacture concentrated cannabis were found in defendant's garage. In addition, three baggies containing methamphetamine and one containing a similar untested powder were found on defendant's property along with a digital scale with methamphetamine residue on it. Defendant admitted to possessing the ammunition and making the concentrated cannabis. The experts opined that the methamphetamine was packaged for sale and not for personal use. Substantial evidence supports defendant's convictions.
Thus, even if we assume for the sake of argument his counsel was ineffective for failing to file motions or objecting to the pictures presented by the prosecution or conducting further investigation, any error was harmless. "To prevail on a claim of ineffective assistance of counsel, the defendant must prove: (1) his or her attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his or her attorney's deficient representation subjected him or her to prejudice. [Citations.] Prejudice means a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] A reasonable probability means a 'probability sufficient to undermine confidence in the outcome.' [Citation.]" (People v. Najera (2006) 138 Cal.App.4th 212, 225; see Strickland v. Washington (1984) 466 U.S. 668, 689.) Even if trial counsel fell below an objective standard of reasonableness, there is no showing of prejudice.
We also reject defendant's purported prosecutorial misconduct claim. Defendant never raised the issue at trial or failed to make a timely objection relating to the alleged prosecutorial misconduct. " ' "[A] defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion"—and on the same ground—"[the defendant] made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." ' " (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 822-823.) Thus, his prosecutorial misconduct claim is forfeited on appeal. (People v. Thomas (2012) 54 Cal.4th 908, 937-938.) Even if the claim is not forfeited, we find no evidence suggesting the prosecutor committed misconduct.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
We did, however, find a sentencing error that requires correction. Although a trial court has the power to strike a prior prison term enhancement under Penal Code section 1385 (People v. Bradley (1998) 64 Cal.App.4th 386, 391, fn. 2; People v. Calhoun (1983) 141 Cal.App.3d 117, 124-125), a court does not have the power under Penal Code section 1385 to stay a prior prison term enhancement. (Ibid.) The same is true for a prior drug-related conviction. The trial court had the authority to strike the enhancement for good cause (Pen. Code, § 1385), but it had no authority to stay them. (People v. Lopez (2004) 119 Cal.App.4th 355, 364.) The resulting sentence is unauthorized and subject to correction at any time. (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1124.) Thus, the staying of the two prior prison term enhancements, as well as staying one of the prior drug-related enhancements, was an unauthorized sentence. (Cf. People v. Irvin (1991) 230 Cal.App.3d 180, 192-193 [under former Penal Code section 1170.1, subdivision (h), which allowed court to strike a prior prison term enhancement, staying of such enhancement was unauthorized sentence]; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589 [where trial court had discretion to strike Health and Safety Code section 11370.4 enhancement but not stay it, stay of such enhancement was unauthorized sentence].)
Accordingly, to effectuate the trial court's clear intention to impose the sentence as set forth above, we will order the one stayed prior drug-related conviction and the two stayed prior prison term enhancements stricken, and direct the trial court to amend the March 4, 2016 minute order of the sentencing hearing, and the abstract of judgment accordingly.
Following independent review of the record, we have concluded that no other reasonably arguable legal or factual issues exist.
III
DISPOSITION
The one prior drug-related conviction and the two prior prison term enhancements are stricken. The clerk of the superior court is directed to amend the minute order of March 4, 2016, and the abstract of judgment accordingly. The clerk of the court is further directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.