Opinion
E070780
10-08-2019
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE DELL ADAMS, JR., Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and Craig H. Russell, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIF1604853) OPINION APPEAL from the Superior Court of Riverside County. Steven G. Counelis, Judge. Affirmed with directions. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant, Clarence Dell Adams, Jr., guilty of possession of a controlled substance in a penal institution (count 1; Pen. Code, § 4573.6) and possession of marijuana for sale (count 2; Health & Saf. Code, § 11359). The court thereafter found true an allegation defendant had suffered a prior strike conviction. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The court sentenced defendant to a term of six years of imprisonment consisting of the following: the midterm of three years, doubled pursuant to the strike prior, on the count 1 offense and a concurrent 180-day jail term on the count 2 offense.
All further statutory references are to the Penal Code unless otherwise indicated. --------
On appeal, defendant contends he was deprived of constitutionally guaranteed effective assistance of counsel when defense counsel failed to object, on hearsay grounds, to the admission of a note found in his locker. Defendant additionally maintains the court erred by failing to stay sentence on the count 2 offense pursuant to section 654. The People agree with the latter argument. The judgment is modified to stay imposition of sentence on count 2. In all other respects, the judgment is affirmed.
I. FACTUAL AND PROCEDURAL HISTORY
On July 27, 2016, a police service dog handler conducted a canine search of a dormitory at California Rehabilitation Center in Norco, California. Officers entered the dormitory and instructed the inmates to get on the ground in front of their beds. The handler's canine, who was trained to detect narcotics, alerted to the locker assigned to bed 29.
An officer on duty during the search testified that each inmate is assigned a locker which is attached to their bunks; the inmates are responsible for everything within their lockers. Each inmate is given a lock for their locker. The locker to which the canine alerted was assigned to defendant. The locker was unsecured by a lock.
An officer searched the locker and found a bag of dry beans in which she found a "brown bindle wrapped in clear cellophane." She also found a roll of toilet paper stuffed with tissue; she removed the tissue and found a "brown bindle wrapped loosely with white string." The officer opened the bindle and found two additional blue latex bindles within. She additionally located a jar of vegetable spice flakes on the bottom shelf of defendant's locker in which she found "a black bindle wrapped in tape." The officer smelled the odor of marijuana.
The officer weighed and labeled each of the bindles. Bindle A, which she found in the spice jar, tested positive for marijuana and weighed 35.5 grams. Bindle B, from inside the bag of beans, weighed 11.0 grams. When the officer opened Bindle B, she found "eight additional bindles wrapped in clear cellophane." She labeled each of the Bindles B1 through B8; each weighed between 0.4 and 0.8 grams. They all smelled of marijuana and were of similar texture and color; however, she did not test them.
Bindle C, from inside the toilet paper roll, weighed 5.8 grams. When the officer opened Bindle C, she found "two individual blue latex bindles." Inside the first she "found an additional three bindles wrapped in clear cellophane." The officer labeled them C1 through C3; each weighed between 0.4 and 0.8 grams. She opened C2 which contained "the same green leafy substance" in the other bindles.
The officer found 10 to 15 items of paperwork belonging to defendant in the locker. She also found a note reading: "This all something for you. The beans and snacks gone. Come soon as I get them. I'm also gonna look into getting you a TV till I leave. From Bear." The court admitted the note into evidence as exhibit 15.
The officer did not submit the note for comparison with defendant's writing. She testified she did not know if defendant wrote the note. Nonetheless, she thought the note relevant because the first bindle was found in a bag of beans. She secured all the bindles in an evidence envelope which was sent to the Department of Justice for testing.
A correctional officer with the investigative services unit testified that marijuana sells for approximately $200 per gram in prison. Based on a hypothetical matching the facts of the instant case, the officer opined that the marijuana was "possessed for distribution and sales." His opinion was informed by the total amount of marijuana, which he described as "a lot," and how it was wrapped in multiple bindles. The officer testified that each bindle would sell for around $50.
A criminalist for the Department of Justice testified she was given four items in this case of which she analyzed one. It weighed 35.5 grams; however, when she removed the packaging, the net weight of the marijuana was 16.355 grams.
During closing, the People argued: "And [the officer] also found this handwritten note. . . . [¶] But, of note, she said was this particular phrase in the middle of it. Something for you, the beans and snacks gone, come as soon as I get them. . . . [¶] And so she believed at the time that she first saw this note that it was written by the defendant. She was also very up front on the stand that now she's not sure. She's not sure if it was written from the defendant to someone else, or if someone else wrote this for the defendant. She just knows that it was in his locker and that, in her training and experience, it's consistent with somebody selling drugs."
During rebuttal, the People argued: "And you have this handwritten note inside the defendant's locker, referencing the spots where drugs are found, saying, [c]ome get them." "And [defendant] had this note referencing where [the drugs] were. He'd have to be the most unlucky guy in the world to just happen to have a note referencing drug locations where they happen to have been found."
II. DISCUSSION
A. Ineffective Assistance of Counsel
Defendant contends defense counsel rendered constitutionally ineffective assistance of counsel by failing to object to the admission of the note found in defendant's locker on hearsay grounds. We disagree.
"'"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]"' [Citation.] '"Whether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence."' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 80.)
"Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a) formally defines hearsay as 'evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' A 'statement' is 'oral or written verbal expression' or the 'nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.' [Citation.]" (People v. Sanchez (2016) 63 Cal.4th 665, 674.) "[I]f . . . testimony [is] received . . . as circumstantial evidence of sales of" drugs it is not hearsay. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1220 [pay-owe sheets admissible as nonhearsay].)
The note was not hearsay. The People did not seek to admit the note for the truth of the matters asserted therein. Indeed, the content of the note makes little, if any, sense. Rather, the People sought admission of the note as circumstantial evidence defendant possessed the drugs for sale because the note mentioned beans, in which some of the drugs were found, and referenced the beans' availability for others.
Even assuming the note was hearsay and that defense counsel erred in failing to object to its admission, there is no reasonable probability that had the note been excluded from evidence, defendant would have obtained a more favorable result. All told, an officer found 13 separate bindles of marijuana in defendant's locker, for which he was responsible, which would have sold for $50 each. Numerous documents belonging to defendant were also found in the locker. There was overwhelming evidence, even without the tangentially relevant note, that defendant possessed the marijuana found in his locker for the purpose of sales. B. Section 654
Defendant contends the court erred in imposing a concurrent term on count 2 in contravention of the proscriptions of section 654. The People concede the error. We agree.
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed—as they are here—the application of section 654 raises a question of law we review de novo. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311-312.) "In the absence of any distinct actions that could be associated with the actus reus for each . . . crime[]," the imposition of concurrent sentences for those offenses is improper. (Id. at p. 312.)
Here, as the parties agree, the factual bases for both offenses for which the jury found defendant guilty consisted of a single physical act: possessing drugs. Therefore, pursuant to the proscriptions of section 654, imposition of punishment on the count 2 offense was required to be stayed. The court's imposition of a concurrent term on the count 2 offense was error.
III. DISPOSITION
The judgment is hereby modified to reflect that the concurrent term imposed for the count 2 offense is stayed pursuant to section 654. The trial court is ordered to file an amended minute order reflecting this modification. The modified judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.