Opinion
F071445
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES BALDEN, Defendant and Appellant.
Suzanne Marie Morris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF43446)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Suzanne Marie Morris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Kane, J. and Smith, J.
-ooOoo-
A jury found Michael James Balden guilty of illegal possession of a firearm and two misdemeanor drug offenses. He argues the trial court abused its discretion in allowing amendment of the information at the close of the prosecution's evidence to add a count for misdemeanor possession of hydrocodone. He also argues there was insufficient evidence to support the imposition of an enhancement. We reject each of these arguments.
However, we requested the parties brief the question of whether defense counsel was ineffective for failing to object to the testimony that led to the amendment of the information to add the possession count. We conclude this is the rare case where an ineffective assistance of counsel argument can prevail on direct appeal instead of a habeas corpus proceeding as there is no possible explanation for defense counsel's failure to object. As a result, we reverse the conviction for the possession count, and remand the matter to the trial court for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
The Charging Documents
The complaint contained four counts: (1) residential burglary (Pen. Code, § 459), (2) grand theft of a firearm (§ 487, subd. (d)), (3) possession of a firearm by a felon (§ 29800, subd. (a)(1)), and (4) misdemeanor possession of hydrocodone, a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The complaint also alleged as enhancements (1) the victim was over the age or 60 within the meaning of section 1203.09, subdivision (f) (count 1), and (2) Balden had suffered two prior convictions within the meaning of section 667.5, subdivision (b) (counts 1, 2, and 3).
All statutory references are to the Penal Code unless otherwise indicated.
At the commencement of trial, the prosecutor filed the first amended information without objection by defense counsel. The changes in the first amended information as filed include (1) the first enhancement refers to section 1203.09, subdivision (a) instead of subdivision (f), (2) the charge in count two was reduced from a felony to a misdemeanor, (3) the charge in count four was changed to misdemeanor being under the influence of methamphetamine, a controlled substance, in violation of Health and Safety Code section 11550, subdivision (a), and (4) the prior prison term enhancement referred to only counts 1 and 3. The possession of hydrocodone count was eliminated from the complaint.
After the testimony, the prosecution moved to amend the information by adding a misdemeanor possession of hydrocodone in violation of Health and Safety Code section 11350, subdivision (a), as count five. The trial court granted the motion over the objection of defense counsel.
The Testimony
Clayton Carl Farlow, the 89-year-old victim, met Balden through his church. Balden had been staying with some church members, but one of them was injured, so they asked if Farlow would rent a room to Balden. Farlow, who had converted his basement into an apartment, agreed to do so. There is a stairway from the apartment up to the main living area where Farlow lived, as well as an entrance from the outside to the apartment.
Farlow had guns on display at his house that he and his sons had collected. When Balden moved in, he commented that he could get into trouble with the police if he was found with guns, so Farlow agreed to store the guns in Farlow's bedroom closet. Farlow believed Balden helped him move the guns into the closet.
Approximately four months after Balden moved into the house, Farlow discovered two guns were missing. In the box for one of the guns was a fabricated item made from junk designed to resemble the size and weight of a rifle.
Since Farlow discovered the two guns were missing, he had not found any other items in the home missing. Nor did Farlow find any signs of forced entry into the house. However, at that time the house was usually unlocked. Farlow did not believe anyone other than Balden knew the rifles were stored in the closet.
San Joaquin County Deputy Sheriff Andrew Theodore was employed by the Sonora Police Department at the time of the incident. He responded to Farlow's house in response to Farlow's report of the theft. He later interviewed Balden with probation officer Anthony Johnson, who was supervising Balden while he was on post release community supervision. At one point in the interview, Balden stood up from the bed on which he had been sitting. When Balden stood up, Theodore observed a white pill directly beneath where Balden had been sitting. Theodore identified the pill as hydrocodone. Theodore also testified that Balden did not have a prescription for the pill.
During Theodore's interview, Johnson observed behavior that suggested Balden was using illegal drugs, so he obtained a urine sample from Balden. The parties stipulated testing revealed the presence of methamphetamine.
Balden testified in his defense. He explained he had some health issues, including renal failure. He had been working for various individuals in the area. When he had to move, one of the families for whom he had been working suggested he contact Farlow. Farlow and Balden agreed to an arrangement, and Balden moved into the basement apartment. Over time their relationship expanded, and the two spent time together.
Balden did not know Farlow had guns when he moved into the house. One day Balden discovered a rifle in one of the rooms, and he told Farlow he could not be around guns because he was on probation. Balden asked Farlow to lock his guns in a closet. Balden did not see the guns again.
Farlow also showed Balden some gold coins he kept in a filing cabinet. Balden pointed this out to suggest, apparently, if he were going to steal from Farlow he would have taken the coins, not guns. Balden explained he did not know who took Farlow's guns, but he identified two people who he thought may have done so. Regarding the hydrocodone, Balden said he had a prescription for the drug, and he informed Theodore of this fact.
Theodore testified on rebuttal that Balden did not tell him he had a prescription for the hydrocodone.
Verdict and Sentencing
The jury could not reach a verdict on the burglary count and on the theft of a firearm count. A mistrial was declared on these counts and they were eventually dismissed after motion by the prosecution. The jury found Balden guilty of (1) felony possession of a firearm, (2) misdemeanor being under the influence of methamphetamine, and (3) misdemeanor possession of hydrocodone.
Prior to the commencement of trial, Balden admitted the two prior prison term enhancements.
The trial court sentenced Balden to the midterm of two years for the firearm charge, plus one year for each of the prior prison term enhancements. The trial court imposed a one-year sentence for each of the misdemeanor drug charges to run concurrent to the firearm charge. The total prison sentence imposed was four years.
DISCUSSION
Balden asserts the trial court erred in two respects during the trial. First, he argues the trial court erred by allowing the prosecutor to amend the information to add the possession of hydrocodone count after the prosecution's case had been presented to the jury. Second, Balden argues the trial court erred when it imposed one of the prior prison term enhancements because it was not supported by substantial evidence.
The Hydrocodone Amendment
As stated in the summary, prior to trial the prosecutor dismissed the misdemeanor possession of hydrocodone count, and instead charged Balden with being under the influence of methamphetamine. However, Theodore testified that when he interviewed Balden he found a white pill where Balden had been sitting, and he identified the pill as hydrocodone.
Based on Theodore's testimony, the prosecutor moved to amend the information by adding a misdemeanor possession of hydrocodone count. The trial court granted the motion over the objection of defense counsel. Balden now argues the trial court's ruling was an abuse of discretion.
The parties agree on the relevant law. Section 1009 permits the amendment of an information at any stage of the proceedings, but the information cannot be amended to add a charge not shown by the evidence taken at the preliminary hearing. (People v. Goolsby (2015) 62 Cal.4th 360, 367.) " 'If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted.' [Citation.] If there is no prejudice, an amendment may be granted 'up to and including the close of the trial.' " (Id. at pp. 367-368.) We review the trial court's ruling for an abuse of discretion. (People v. Miralrio (2008) 167 Cal.App.4th 448, 458.)
Here, it is clear that the amendment did not cause Balden any prejudice. Balden was charged with possession of hydrocodone in the original complaint. He was held to answer to the charge after the evidence was presented at the preliminary hearing. The charge was pending up until the commencement of trial. Accordingly, defense counsel would have prepared any defense to the charge while preparing for trial. Defense counsel did not ask for a continuance of the trial once the prosecutor moved to amend the information thus suggesting that any possible defense to the charge was already prepared.
In addition, the evidence presented before the prosecutor's motion, if believed, established the offense had been committed. Theodore testified, without objection, that he found the pill where Balden had been sitting, and the pill was hydrocodone. Moreover, he testified that Balden admitted he did not have a prescription for the hydrocodone. Therefore, the trial court did not act in an arbitrary, capricious, or patently absurd manner. (People v. Peoples (2016) 62 Cal.4th 718, 745.) No error occurred.
The Prior Prison Term Enhancement
Prior to presentation of the evidence to the jury, Balden admitted he had suffered two prior convictions and as a result served prison terms. The information alleged these two convictions constituted enhancements pursuant to the provisions of section 667.5, subdivision (b). This section requires the trial court to impose an additional one-year term for "each prior separate prison term ...." However, a prior prison term will not result in this additional one-year term if the defendant did not incur a felony conviction or serve a term in prison for five years after being released from custody.
The trial court obtained from Balden an admission that he "suffered a conviction for a violation of 12021(a) on October 29th, 1993 in Case Number CR0437, that you served a prison term, and you did not remain free from custody for five years following the conclusion of that term." However, defense counsel reserved the right to challenge the issue of whether this conviction had washed out, i.e. that Balden had remained free from custody and not suffered another felony conviction for a period of five years after he was released from custody. The trial court agreed Balden retained the right to challenge this issue at sentencing if Balden were convicted.
This admission, as well as the admission that Balden suffered a felony conviction in 2011 that resulted in a prison term, were obtained at the beginning of trial because Balden's status as a felon was an element of the firearm charge, and the parties were resolving which convictions would be available to impeach Balden when he testified.
At the sentencing hearing, the trial court imposed an additional one-year term for both the 1993 conviction and the 2011 conviction. Defense counsel did not address the question of whether one of the terms did not qualify under the statute because Balden remained free from custody and did not incur another felony conviction for a period of five years after he was released from custody.
Now, Balden argues there is not substantial evidence to support the enhancement for the 1993 conviction because he did not admit the washout period did not apply, and the prosecution failed to produce evidence to prove the washout period did not apply.
Balden's argument misconstrues the record. Balden clearly admitted he had not remained free from custody for a period of five years after the 1993 conviction. Balden's admission is substantial evidence to support the enhancement.
It is true defense counsel retained the right to argue the washout period applied, but he failed to do so. As a result of Balden's admission, the prosecution was not obligated to present any additional evidence to support the enhancement. Defense counsel accepted the responsibility of addressing the issue at the sentencing hearing if he concluded the issue had merit. Accordingly, we reject Balden's argument.
Ineffective Assistance of Counsel
After reviewing the record, we requested the parties brief the issue of whether defense counsel was ineffective for failing to object to (1) Theodore's testimony that he found the pill, and (2) Theodore's testimony that the pill was hydrocodone. The parties filed briefs on the issue.
A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) "Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.] ¶ Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel's conduct from counsel's perspective at the time. [Citation.] A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. [Citation.] ... Nevertheless, deference is not abdication; it cannot shield counsel's performance from meaningful scrutiny or automatically validate challenged acts and omissions." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
"If the record contains an explanation for the challenged aspect of counsel's representation, the reviewing court must determine 'whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.' [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ....' " (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
"Generally, failure to make objections is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] '[C]ounsel's conduct should not be judged by appellate courts in the harsh light of hindsight ... and except in rare cases, an appellate court should not attempt to second-guess trial counsel.' [Citation.] 'It is not sufficient to allege merely that the attorney's tactics were poor, or that the case might have been handled more effectively ... Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.' " (People v. Lanphear (1980) 26 Cal.3d 814, 828-829, overruled on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 643.)
Recently, the Supreme Court again acknowledged the practical difficulties in addressing ineffective assistance of counsel claims raised on direct appeal rather than in a habeas corpus proceeding. "The record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (People v. Mickel (2016) 2 Cal.5th 181, 198.) Nonetheless, we conclude this is the rare case in which there simply could be no satisfactory explanation for defense counsel's failure to act.
At the commencement of trial, the prosecutor filed an amended information which eliminated the possession of hydrocodone count. Therefore, any questions related to that count would no longer be relevant because they would not "hav[e] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Since such testimony on this topic would have no probative value, and would create the risk of prejudice to Balden by reinforcing his drug abuse history, the testimony would also be subject to objection pursuant to Evidence Code section 352 since its prejudicial effect would greatly outweigh its probative value.
Nonetheless, defense counsel failed to object when Theodore testified that he found a pill where Balden had been sitting, the pill was hydrocodone, and Balden stated to Theodore he did not have a prescription for the pill. The testimony was obviously objectionable, and we can not discern any reason for defense counsel's failure to act. Moreover, as explained below, we reject the Attorney General's attempt to justify the failure to object as a reasonable tactical decision. Simply stated, there can be no reasonable tactical justification for allowing potentially prejudicial, irrelevant testimony to be introduced which could expose your client to an additional charge.
The prejudice caused by defense counsel's failure to object in this case is manifest because, in addition to casting Balden in a bad light in front of the jury, the evidence exposed Balden to conviction on another count. If defense counsel had objected to these portions of Theodore's testimony, there would not have been any evidence to support the prosecutor's motion to amend the complaint. Indeed, without this testimony it seems highly unlikely the prosecutor would have considered a motion to amend the information.
We also observe that Theodore's identification of the pill as hydrocodone was subject to an additional objection. A lay witness may testify in the form of an opinion only if the opinion is rationally based on the witness's perceptions, and the opinion would be helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800, subds. (a) and (b).) If a witness is testifying as an expert, his or her opinion testimony is limited to subjects that are sufficiently beyond the common experience that the opinion would assist the trier of fact, and which are based "on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing ...." (Evid. Code, § 801, subds. (a) and (b).)
Theodore's identification of the pill as hydrocodone was not rationally based on his perception of the pill, but instead was based on his training and experience, and was on a topic sufficiently beyond the common experience that the opinion would assist the trier of fact, i.e., Theodore was testifying as an expert witness.
Theodore's testimony about his expertise was limited. He testified he had been involved in several hundred arrests and/or investigations regarding being under the influence or being in possession of a controlled substance. He also testified he was "certified through the International Association of Chiefs of Police as a Drug Recognition Expert." He described the pill he found as "white in color, oval, and was inscribed with the letter M and the numbers 357." Theodore concluded the pill was a mixture of hydrocodone and acetaminophen.
The identification of narcotics requires expert testimony. (In re Waylon M. (1982) 129 Cal.App.3d 950, 952.) However, the testimony presented did not establish Theodore had "special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject" of drug analysis and identification. (Evid. Code, § 720, subd. (a).) Moreover, the record fails to indicate on what basis Theodore concluded the pill contained hydrocodone, other than perhaps its appearance. However, there was no testimony about why the appearance of this pill conclusively established it contained hydrocodone, or how Theodore arrived at this opinion. Theodore did not perform a chemical analysis to supplement his testimony based on visual similarities, there was no testimony of the uniqueness of the trade dress of the pharmaceutical, and his testimony did not take into account the possibility the pill was counterfeit. (See, e.g., People v. Stamps (2016) 3 Cal.App.5th 988, 998 [criminalist's identification of pills based on information obtained from a website inadmissible hearsay].) Nor was there any evidence Theodore had the necessary expertise to render such opinions, or on what he based his visual identification. In other words, Theodore's testimony was speculation without a foundation. A proper evidentiary objection based on foundation should also have been sustained.
The term "trade dress" refers to the appearance of medication in pill form characterized by a variety of features such as color, size, shape, finish, presence or absence of scoring, as well as imprint or inscription. (Jones v. Commonwealth of Kentucky (2011) 331 S.W.3d 249, 255.) --------
Our conclusion is supported by the prosecutor's explanation for first dismissing the possession of hydrocodone count, and then moving to add the same count after Theodore's testimony. "Your Honor, it was originally dismissed because we didn't get any confirmation back from D.O.J., but - however, with the evidence that was presented at trial, we were able to identify the pill. The defendant denied having any type of prescription for it. I think there is more than enough evidence to at least bring it to a jury and let them decide. ¶ And, of course, before trial, we wouldn't know whether that evidence would come in or not, so that is why the motion is made now as opposed to before trial when we had nothing but - no confirmation." In other words, the prosecutor dismissed the count before trial because the chemical composition of the pill was not confirmed by chemical analysis by a Department of Justice criminalist, and the prosecutor did not believe Theodore's testimony would be admitted. However, because defense counsel failed to object to Theodore's testimony, there was now a sufficient evidentiary basis for the charge.
We reject the Attorney General's assertion that defense counsel made a reasonable tactical decision to not object to this irrelevant testimony. To support the argument, the Attorney General points to a discussion held in chambers during which the parties argued the issue of amendment of the information to add the possession count. After the prosecutor argued the evidence submitted supported amendment of the information, defense counsel stated:
"Well, Your Honor, the door to the barn may be - I mean, the horse may already be out of the barn on this, but I don't think that the pill has any relevance and I would move to exclude all evidence of the pill. I did not object to it at the time because that door had already been opened before. It was too late."
Focusing on the last two sentences, the Attorney General argues defense counsel made the tactical decision not to object. However, defense counsel's statement does not comport to the facts of the case. Before Theodore testified to the discovery of the pill, there had not been any mention of the pill before the jury. Therefore, a timely objection would not have been "too late," and defense counsel's attempt to justify his inaction fails. We also note that defense counsel began his statement to the trial court with an objection and motion to strike the testimony about the pill. Therefore, it appears that at that time he realized his mistake in failing to make a timely objection.
We also reject the Attorney General's assertion that it was a reasonable tactical decision to not object because to do so would focus the jury on the evidence of the hydrocodone. Had a timely objection been made, no evidence would have been admitted regarding the hydrocodone, and there would not have been any evidence on which the jury could focus. The failure to object led not only to admission of evidence about the presence of the hydrocodone, but also to evidence about the composition of the pill. All of this could have been avoided by a timely objection. For the same reasons, we reject the Attorney General's assertion that defense counsel made a tactical decision to not object to Theodore's testimony identifying the pill as hydrocodone.
We also disagree with the Attorney General that Theodore would easily have qualified as an expert on drug identification. We have thoroughly discussed this issue above, and the record simply does not establish that Theodore was an expert in drug recognition. Whether he could have qualified as such is pure speculation.
To summarize, defense counsel failed to object to evidence which was irrelevant and lacking in foundation. As a result of this failure, otherwise inadmissible evidence was admitted and formed the basis for the amendment of the information to add an additional charge. There was no reasonable tactical basis for defense counsel's failure to object, and Balden was convicted of this additional charge. Under these circumstances we conclude defense counsel was ineffective, and as a result of defense counsel's ineffectiveness Balden suffered prejudice. As a result of defense counsel's ineffectiveness, we reverse the conviction on count five, possession of hydrocodone.
DISPOSITION
The judgment for misdemeanor possession of hydrocodone in violation of Health and Safety Code section 11350, subdivision (a) is reversed. The judgment is affirmed in all other respects. The matter is remanded for retrial of the possession of hydrocodone count, or, if the prosecutor declines to retry the count, then for resentencing.
The clerk of the court is directed to send a copy of this opinion to the State Bar of California and attorney Stephen Clay Bedford. (Bus. & Prof. Code, § 6086.7, subds. (a)(2), (b).)