Opinion
A129271
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RICHARD TORRES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Contra Costa County Super. Ct. No. 050908814
Anthony Richard Torres was convicted by a jury of two counts of possession of a controlled substance for sale, and one count of resisting an executive officer. His principal argument on appeal challenges the admission of a photograph into evidence that depicted several envelopes addressed to him at the Contra Costa County jail. He also argues that his lawyer was ineffective because she stipulated that Torres was known as Rick, Ricky or Tricky Ricky and that the address shown on the envelopes was the jail's address. Finally, he argues that even if the first two claims are not reversible error, this case should be remanded for resentencing because the trial court was unaware of its authority to strike a prior conviction in order to render Torres eligible for greater presentence credits. We conclude there was no error, and affirm.
FACTUAL BACKGROUND
In August 2008, police officers conducted a probation search at a home on Olive Lane in Antioch. Officers entered a locked bedroom that was unoccupied at the time of the search, but had been occupied by Torres and his apparent girlfriend when officers conducted a similar probation search a few months earlier. Inside the bedroom officers found 97.88 grams of methamphetamine, a police scanner, closed circuit television surveillance equipment, documentation that appeared to record drug transactions, men's clothing, and assorted items of mail addressed to "Ricky Torres." Defendant was also known to police as Richard, Rick or Tricky Ricky Torres.
The probationer who was the subject of the search appears to have been living at the house with Torres.
In March 2009, officers served an arrest warrant for Torres at a local motel. In the room where they found Torres, officers also found .26 grams of methamphetamine, a police scanner, a digital scale, a number of plastic bags and more documentation that seemed to refer to drug transactions. Officers had the opinion that Torres flushed a quantity of methamphetamine down the toilet when they announced their presence for serving the warrant. He was arrested after a brief struggle.
PROCEDURAL BACKGROUND
Torres was charged in an indictment with two counts of possession of a controlled substance for sale in violation of Health and Safety Code section 11378, and one count of resisting an executive officer in violation of Penal Code section 69. A number of enhancements were alleged due to his prior conviction for a serious and violent felony, a prior felony controlled substance conviction, prior incarceration in state prison, and multiple felony convictions. The jury convicted Torres of all counts. The court determined that each of the prior convictions alleged were true and that Torres served a prior sentence in state prison.
All further unspecified statutory references are to the Penal Code.
Torres was sentenced to a total of 8 years 4 months in state prison. In arriving at the total sentence, the court struck from its consideration an enhancement based upon Torres's prior serious felony conviction for assault upon a peace officer in violation of section 245, subdivision (c). The court imposed applicable fines and fees, and awarded Torres a total of 696 days of presentence credits, consisting of 464 actual days served in county jail and 232 days of conduct credits. His appeal is timely.
DISCUSSION
I. Admission of the Photograph of Envelopes Addressed to Torres at the County Jail
Among the elements the prosecution had to prove to convict Torres of possession of methamphetamine for sale in connection with the probation search when he was not present is that he had possession and control over the drugs. (People v. Shipstead (1971) 19 Cal.App.3d 58, 77.) Such possession and control may be proved by circumstantial evidence. (Ibid.) One piece of evidence the prosecution used to prove the methamphetamine found in the bedroom at the Antioch home belonged to Torres was a picture that depicted envelopes also found in the bedroom addressed to Torres at the county jail.
Torres moved in limine to exclude any reference by the prosecution to his prior convictions, arrests or custodial status. At the outset of trial the court tentatively granted the motion. The court revisited its ruling when the prosecution sought to offer evidence of mail postmarked prior to 2008 that was addressed to Torres at the county jail. The prosecutor argued it was important the mail be admitted to help prove that the methamphetamine was found in a room subject to Torres's control. The prosecutor also argued that it was important for the jury to know the mail was addressed to Torres at the county jail in order to prevent the possibility that the jury would think the address shown on the envelopes was his residence address.
Defense counsel opposed the prosecution's request. Her primary concern was the potentially prejudicial and irrelevant information that could be contained in the letters within the envelopes. The court acknowledged the potential prejudice inherent in allowing into evidence the letters addressed to Torres at the county jail. But it considered them to be highly probative. After some discussion about possibly redacting the letters, the court determined to admit a photograph depicting only the envelopes. The photograph came into evidence without objection or request for a limiting instruction.
We review a trial court's decision to admit evidence for an abuse of discretion, including in circumstances where the trial court's decision turns on its comparative probative and prejudicial value. (People v. Waidla (2000) 22 Cal.4th 690, 724.) We have no reservations that the trial court properly exercised its discretion when it determined to admit the photograph depicting the envelopes addressed to Torres at the jail. The trial court expressly considered their admission under the proper standard set forth in Evidence Code section 352. Although the envelopes indicate Torres was at the jail in 2008, the court excluded the mail that was within them and the photograph makes no reference to the duration or reason for Torres's confinement. As one court has observed, the fact that a defendant was previously in county jail is not tantamount to evidence that he was previously convicted of a crime. (See People v. Wojahn (1984) 150 Cal.App.3d 1024, 1030, disapproved on other grounds in People v. Saunders (1993) 5 Cal.4th 580, 597, fn. 9.) As the trial court observed, the envelopes were probative on whether Torres occupied the room where the drugs were found. The prosecutor argued their relevance only for this purpose. "Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' (People v. Alvarez [(1996)] 14 Cal.4th [155,] 204, fn. 14)." (People v. Waidla, supra, 22 Cal.4th at p. 724.) We have no such concerns here. We cannot conclude that the court abused its discretion when it admitted the photograph.
Torres also claims there was error because the court did not deliver an instruction advising the jury that it could consider the photograph only as evidence that Torres occupied the bedroom where drugs were found and for no other purpose. But in the absence of a request, the court is under no general duty to provide such a limiting instruction. (People v. Cowan (2010) 50 Cal.4th 401, 479; Evid. Code, § 355.) No such request was made.
II. Ineffective Assistance of Counsel
Torres claims his counsel's performance at trial was constitutionally deficient in three respects. He says his defense counsel should not have offered a stipulation that Torres was known by some as "Tricky Ricky," should have requested a limiting instruction pertaining to the jury's consideration of the photograph discussed in part I of this opinion, and should have objected to allowing the address of the jail to be shown on the envelopes depicted in the photograph and suggested they be redacted.
He also argues that his lawyer's performance was deficient because she stipulated to the address of the county jail. However, this argument is made contingent upon our concluding that the photograph of jail envelopes was admitted due to the stipulation, and not due to a ruling by the court. Since we have decided the court correctly admitted the photograph we will not address this claim of incompetence.
Torres bears the burden of proving, by a preponderance of the evidence, that he is entitled to relief on a claim of ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To establish constitutionally defective legal representation, he must show both that his trial attorney's performance fell below an objective standard of reasonableness and that the deficiencies were prejudicial. "Prejudice generally requires an affirmative showing that, absent counsel's errors, there is a reasonable probability of a more favorable outcome. [Citation.] A 'reasonable probability' is not a showing that 'counsel's conduct more likely than not altered the outcome in the case,' but simply 'a probability sufficient to undermine confidence in the outcome.' " (In re Cordero (1988) 46 Cal.3d 161, 180; Strickland v. Washington (1984) 466 U.S. 668, 693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Thus, " '[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.' " (People v. Ledesma, supra, at p. 218.)
Leaving aside whether counsel's stipulation concerning Torres's nickname or her failure to suggest the jail address be redacted were deficient, no prejudice resulted. As we have already discussed, the admission of the picture of envelopes showing the jail address does not undermine our confidence in the outcome of this trial. Neither did the stipulation that Torres is known as "Tricky Ricky." This is for the simple reason that this moniker was already in evidence when counsel offered the stipulation. One of the deputies who conducted the probation search testified that he connected a binder found in the bedroom of the Olive Lane house to Torres because it said "Tricky Ricky" inside the front cover, and he knew Torres to go by that name.
Counsel's failure to request a limiting instruction on the jury's consideration of the photograph of envelopes could have been based on a strategic consideration. We "defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: ' "Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Here, the failure to request the instruction is possibly due to the simple and legitimate reason that defense counsel chose not to highlight for the jury the potential prejudicial significance of Torres's previous time in jail. Torres has not demonstrated reversible error due to ineffective assistance of counsel.
III. Whether the Court Could Strike Prior Offenses to Effect Credit Earning
Pursuant to the version of section 4019 in effect at the time of Torres's sentencing, a defendant otherwise eligible for an award of day-for-day conduct credits was limited to one day for every three days served if the defendant was required to register as a sex offender, convicted of a serious felony, or had a prior serious or violent felony conviction. (Former § 4019, subds. (b)(2), (c)(2), as amended by Stats. 2009-2010, ch. 28, § 50.) Torres contends that this case should be remanded to the trial court because at the time of his sentencing, the trial court was unaware it had the discretion under section 1385 to also strike his prior serious felony for credit earning purposes when it decided to strike it as an enhancement. We disagree. The trial court had no authority to strike his prior serious felony for credit calculation purposes because there is no requirement for the prosecution to plead and prove a defendant's ineligibility for day-for-day credits.
We disagree with those courts that have identified a pleading and proof requirement. (See People v. Jones (2010) 188 Cal.App.4th 165, rev. granted December 15, 2010, S187135; People v. Lara (2011) 193 Cal.App.4th 1393, rev. granted May 18, 2011, S192784.) As we shall explain, we do not consider a defendant's inability to earn enhanced credits to be a form of increased punishment.
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Our Supreme Court has held that a court's power to dismiss an action under section 1385 "extends only to charges or allegations, not to uncharged sentencing factors . . . . In the absence of a charge or allegation, there is nothing to order dismissed under section 1385." (In re Varnell (2003) 30 Cal.4th 1132, 1139.) Even when a prior conviction is dismissed because it is the basis for a charged enhancement, "dismissal of a prior conviction allegation under section 1385 'is not the equivalent of a determination that defendant did not in fact suffer the conviction.' [Citations.] 'When a court strikes prior felony conviction allegations in this way, it " 'does not wipe out such prior convictions or prevent them from being considered in connection with later convictions.' " ' [Citations.] Thus, while a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use." (In re Varnell, supra, 30 Cal.4th at p. 1138.)
Nothing about the credit reduction scheme leads us to conclude a defendant's credit earning status is subject to a pleading and proof requirement. There is no constitutional right to sentence reduction credits. (Wolff v. McDonnell (1974) 418 U.S. 539, 557 [94 S.Ct. 2963; 41 L.Ed.2d 935].) They are a statutory creation that the Legislature has declared to be a privilege, not a right. (§ 2933, subd. (c).) Credits must be earned and are subject to forfeiture in certain circumstances. (Ibid.) Though credits may not be taken away without minimal procedural protections (Wolff v. McDonnell, supra, 418 U.S. at p. 558), they may be lost as a consequence of misbehavior (§ 2932). There is no guaranty or entitlement to credits awarded for conduct or work time, and the Legislature has determined that prisoners with certain histories like Torres's should not earn them at the same rate as others. (Former § 4019, subds. (b)(1) & (c)(1), supra; Sen. Bill No. 76 (2010 Reg. Sess.) ch. 426.)
It is exclusively within the province of the Legislature to define crimes and fix penalties. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; People v. Rhodes (2005) 126 Cal.App.4th 1374, 1385.) The Penal Code requires that prosecutors plead and prove sentence enhancements. (§ 1170.1, subd. (e).) An enhancement is "an additional term of imprisonment added to the base term." (Cal. Rules of Court, rule 4.405(3); People v. Hernandez (1988) 46 Cal.3d 194, 207-208, disapproved on another ground in People v. King (1993) 5 Cal.4th 59, 78, fn. 5.) The reason for the pleading and proof requirement is simple. A defendant is entitled to notice that the prosecution is seeking enhanced punishment for a crime and should have an opportunity to defend against it. (People v. Wandick (1991) 227 Cal.App.3d 918, 926; People v. Neal (1984) 159 Cal.App.3d 69, 7273.) Statutes that limit the accrual of presentence credit do not constitute enhanced punishment. (See In re Pacheco (2007) 155 Cal.App.4th 1439, 1445.) Indeed, the federal constitutional rule to determine what must be pleaded and proven by the prosecution focuses on facts that increase the punishment for a crime beyond the statutory maximum. (Cunningham v. California (2007) 549 U.S. 270, 280-281 [127 S.Ct. 856; 166 L.Ed.2d 856].)
A defendant's credit earning status due to prior crimes does not lengthen a base term of imprisonment or the statutory maximum. For credit calculation purposes, prior convictions may affect the length of a defendant's incarceration, but do not do so in a way that exceeds or extends the statutorily prescribed penalty. We simply do not agree with the fundamental premise implicit in Torres's argument that his punishment is increased because he is ineligible for enhanced credits allowed under section 4019. That section operates to decrease the time defendants must spend in prison, albeit more for some than others. It seems odd at best that we would consider them an "increase" in punishment. Moreover, when the Legislature determines a credit earning limitation must be pleaded and proved, it says so. (See § 1170.12 [when a prior serious or violent felony is pleaded and proven, defendant's credit against time in prison is limited to one-fifth of the term].) It has not said so in section 4019. Neither California law nor the United States Constitution require that a defendant's prior crimes be pleaded or proven to establish a defendant's eligibility to earn presentence reduction credits. Consequently, the trial court had no power to strike Torres's prior serious felony conviction for this purpose. (In re Varnell, supra, 30 Cal.4th at pp. 1138-1139.) His presentence credits were properly calculated under section 4019.
DISPOSITION
The judgment is affirmed.
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Siggins, J.
We concur:
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Pollak, Acting P.J.
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Jenkins, J.