Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge, Los Angeles County Super. Ct. No. TA079925.
H. Clay Jacke, II, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury found defendant and appellant Darnell Brim (defendant) guilty of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). The jury found true the allegation that defendant was personally armed with a firearm in the commission of those offenses. (§ 12022, subd. (c).) Defendant waived his right to a jury trial on the allegations that he suffered two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a) and that he suffered a prior juvenile adjudication within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The trial court found true the Health and Safety Code allegation, but found insufficient evidence to support the allegation under the Three Strikes law. The trial court sentenced defendant to 14 years in state prison.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the evidence was insufficient to support his conviction for possession of cocaine base for sale and his sentence enhancement for being armed with a firearm, the trial court violated his due process rights and right to present witnesses when it denied his motion to disclose the identity of a confidential informant while allowing prosecution witnesses to testify about events to which the confidential informant was a percipient witness, the prosecution failed to disclose and effectively destroyed exculpatory evidence in violation of his due process rights and right to confrontation, he received ineffective assistance of counsel, and the cumulative effect of the errors requires reversal. Respondent contends that the “record” must be corrected to reflect the imposition of a mandatory $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a); a mandatory $50 penalty pursuant to section 1464, subdivision (a); and a mandatory $35 penalty pursuant to Government Code section 76000, subdivision (a), that the trial court omitted from defendant’s sentence. Respondent also contends that the trial court erred in failing to impose a $200 state court construction penalty pursuant to Government Code section 70372, subdivision (a) on defendant’s $400 restitution fine (§ 1202.4, subd. (b)(1)) and a stayed $200 state court construction penalty pursuant to Government Code section 70372, subdivision (a) on defendant’s $400 parole revocation restitution fine (§ 1202.45).
We asked the parties to submit supplemental briefs addressing the issue of whether the trial court erred in failing to impose a 20 percent – $10 – state surcharge on any $50 criminal laboratory analysis fee pursuant to section 1465.7, subdivision (a); a $25 state court construction penalty on any criminal laboratory analysis fee pursuant to Government Code section 70372, subdivision (a); a $25 state court construction penalty on any $50 section 1464 penalty assessment pursuant to Government Code section 70372, subd. (a); and a $17.50 state court construction penalty on any Government Code section 76000, subdivision (a) penalty pursuant to Government Code section 70372, subdivision (a). We also asked the parties to address whether the trial court erred when it stayed $200 of the $400 restitution fine (§ 1202.4, subd. (b)(1)), when it stayed $200 of the $400 parole revocation restitution fine (§ 1202.45), and when it imposed a $20 court security fine under section 1465.8 on only one of defendant’s two convictions.
We affirm the judgment and order the abstract of judgment modified to include a $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a); a $50 penalty pursuant to section 1464, subdivision (a); a $35 penalty pursuant to Government Code section 76000, subdivision (a); state court construction penalties totaling $467.50 pursuant to Government Code section 70372, subdivision (a), of which $467.50 total $200 is stayed; and $40 in court security fines. The abstract of judgment also shall reflect a fully-imposed $400 restitution fine and a fully-stayed $400 parole revocation restitution fine.
Although we hold that it was error for the trial court not to impose the state surcharge under section 1465.7, we do not impose such a surcharge here because, by its terms, section 1465.7 became inoperative on July 1, 2007. (§ 1465.7, subd. (h).)
BACKGROUND
On about April 4, 2005, Long Beach Police Department Detective Richard Miller, Jr., began an investigation into narcotics sales. As part of that investigation, Detective Miller went to a residence at 16702 South Thorson in Compton, and a business at 1702 East Alondra Boulevard in Compton. On June 23, 2005, search warrants were issued for the residence and business. On June 29, 2005, the residence and business were searched pursuant to the search warrants.
Detective Ernest Armond, Detective Christopher Bolt and other officers searched the residence at 16702 South Thorson. No one was present in the residence. Defendant’s mother, Diane White, was present in a detached garage, part of which had been converted into living space. Detective Miller spoke with White, who told him that that she stayed in the detached garage.
During the search, Detective Armond found a large amount of money in bindles inside a Bank of America deposit pouch. The pouch was inside a suit bag hanging in the closet in one of the bedrooms. There was a large men’s suit in the suit bag. Only clothes that would fit a large man were in the area of the closet where Detective Armond found the suit bag and deposit pouch. Detective Bolt found defendant’s California Identification Card with his photograph in a coffee mug on the headboard of a bed in the same bedroom. The address on the identification card was 94511/2 Ramona Street in Bellflower. Also found in the search of that bedroom were a bindle of money in a Cristal bottle box; a bindle of money in a nightstand; a birthday card addressed to defendant with defendant’s photograph on it; and an accordion-type file that contained a business permit for 1702 East Alondra in defendant’s name, and defendant’s 2004 tax return. Detective Bolt also found $87 in cash on top of a microwave oven in the kitchen. Lieutenant Jeffrey Cooper took possession of the money seized from the South Thorson residence. He and Sergeant Jerry Gibbs independently counted the money. The money totaled $56,487.
Based on the items found in the bedroom, Detective Bolt believed that defendant lived at the South Thorson residence. Also, as part of his investigation, Detective Miller determined from the Department of Motor vehicles that defendant’s driver’s license listed his address as 16702 South Thorson Street. Defendant, who had been detained outside the house prior to the search, was arrested and searched. In defendant’s front pants pocket was $1,399 in cash.
Detective Jesus Fragoso, Detective Brian Buchanan, Officer Rudy Garcia and other officers searched the business at 1702 East Alondra Boulevard. There was a pool table in the middle of the business, a refrigerator, and a counter. There were various items in the business that were or appeared to be for sale including candy, clothes, and instamatic cameras. Officer Fragoso did not know the type of business that occupied the building and, thus, could not say whether he entered an active, running business. The building did not appear to Officer Fragoso to have been completely vacated. The building did not appear to Detective Buchanan to contain an ongoing business, although he believed that the business was not “completely moved out.” Officer Garcia believed that there was an ongoing business in the building based on the number of items in the business.
Officer Garcia searched under the pool table and saw a hole. He looked in the hole and saw a gun. The hole was big enough for Officer Garcia to put his head through, but not big enough for him also to reach the gun. The officers pried open a locking mechanism on a wooden door on the side of the pool table allowing them to reach the gun, a loaded semi-automatic handgun. Next to the gun was a plastic baggie that contained sixteen smaller bindles of off-white rock-like objects that appeared to be rock cocaine.
Detective Buchanan found a can with a false bottom in the bathroom of the business. When Detective Buchanan removed the bottom of the can, he could smell a strong odor of rock cocaine from inside the can. Inside the can were off-white rock crumbs.
Detective Buchanan informed Detective Miller that the pool table had a special type of lock mechanism that used a round, cylinder-type key. Detective Buchanan believed that information was significant because if the key to the lock could be located, it would show who had possession of the narcotics and who owned the gun. Detective Miller had found a key in the center console of defendant’s van. Detective Miller gave the key to Detective Buchanan who tried the key in pool table’s locking mechanism and determined that it opened the lock.
Based on all of the evidence, Detective Buchanan believed that the person who possessed the 16 bindles of rock cocaine possessed them for the purpose of sales. If Detective Buchanan considered the possession of the 16 bindles alone, possession of that amount of rock cocaine would cause him to believe the rock cocaine was possessed for the purpose of sales. Detective Buchanan testified that drug dealers keep large amounts of money secreted at home or some other place separate from their drugs to make it difficult for the police to connect the money and the drugs. A person would keep a gun with their narcotics to protect themselves if someone tried to steal the drugs. Detective Buchanan found no paraphernalia at the Thorson residence or the Alondra business for smoking rock cocaine.
Detective Miller testified that he believed that the cocaine base found at 1702 East Alondra was defendant’s and that defendant possessed the rock cocaine for the purpose of sales. He based his belief on, among other things, the fact that defendant had the “unusual” key that allowed him access to the rock cocaine in the pool table, the quantity of cocaine base, and the cash found at defendant’s residence in different locations, amounts, and denominations. Like Detective Buchanan, he testified that drug dealers often keep their narcotics and money separate, although he explained that it was to avoid forfeiture of the money. Also like Detective Buchanan, he found no evidence of personal use of narcotics in defendant’s residence or at the Alondra business. Detective Miller found no evidence that anyone other than defendant had control over the narcotics and gun that were found at the Alondra business or the money found in the bedroom.
The parties stipulated that a Long Beach Police Department criminalist analyzed the contents of the 16 bindles of off-white rocks and determined that they weighed 103.43 grams and contained cocaine base. They also stipulated that the pool table key was not checked for fingerprints and that no fingerprints were found on the false bottom can, the gun, an envelope with .40 caliber cartridges, or on sandwich bags or a plastic bindle that contained several large rocks. The parties further stipulated that defendant had one prior felony conviction.
In his defense, defendant presented the testimony of Roderick Carter, a business license inspector for the City of Compton. On August 16, 2004, defendant applied for a business license with the City of Compton. Carter inspected the outside of the business within about one week of that date. Carter testified that he never went inside defendant’s business, explaining that license inspectors inspect the outside of businesses and building inspectors inspect the inside.
Defendant contacted Carter on June 23, 2005, to close his business license. Carter was too busy to close the license that day, and closed it on June 27, 2005. After defendant closed his business license, Carter noticed that someone was operating an unlicensed business out of the same location. Carter did not remember the date that he noticed that person operating the business.
Jermaine Beard, a convicted felon and defendant’s friend of 20 years, testified that he rented three units at 1702 Alondra and subleased one of the units to defendant. Before Beard rented the units, a man known as “Old Man Eddie” rented the unit Beard would later sublease to defendant. Old Man Eddie ran a combination pool hall, shoe shine, and candy store in the unit. After Old Man Eddie died, his family removed some of his property from the unit, but left a pool table and glass showcases. Two or three months after Old Man Eddie’s death, Beard subleased the unit to defendant. According to Beard, defendant sold items such as underwear, socks, T-shirts, oil burners, oil, and incense from his store.
On May 24, 2005, defendant gave Beard 30 days’ notice that he was vacating the unit. Beard testified that defendant moved out all of his property by June 24, 2005, and new tenants started moving in on June 27 or 28, 2005. When defendant’s unit was searched on June 29, 2005, the property in the unit belonged to the new tenants. Beard did not have a rental agreement showing that he subleased the unit to defendant or a document showing that defendant ended his agreement to sublease the unit. White testified that she saw defendant move from the store between June 20, 2005, and June 23, 2005.
Jeff Beauchamp, a customer service representative for SBC Communications, testified that on or about June 24, 2005, a woman named “Diane” contacted SBC to have a telephone number for defendant at 1702 Alondra Boulevard disconnected. The service was disconnected on June 24, 2005. The final statement was sent to 16702 South Thorson Avenue. White testified that she cancelled defendant’s telephone service with SBC for his business on June 24, 2005.
White testified that she owned the three-bedroom house at 16702 Thorson Street and had lived there since 2000. Defendant, White’s grandson, and White’s granddaughter each had a bedroom in the house. White lived in the back house or converted garage. The back house did not have a closet, so White kept her clothes in various rooms in the main house. White kept about 50 percent of her clothes in the closet in defendant’s bedroom.
White testified that $56,000 of the money found in the search of the house was hers. White kept that amount of money in the house because she did not believe in banks. White hid the money in defendant’s closet in three separate amounts – $40,000 in a bag in the closet, $10,000 in a cologne box, and $6,000 in a Cristal box. She said most of the money came from a refinancing of the house and some came from a workers’ compensation claim check and an escrow refund check.
DISCUSSION
I. Sufficient Evidence Supports Defendant’s Conviction for Possession of Cocaine Base for Sale and Sentence Enhancement for Being Personally Armed With a Firearm in the Commission of His Offenses
Defendant contends that the evidence was insufficient to support his conviction for possession of cocaine base for sale and his sentence enhancement for being armed with a firearm because Detective Buchanan’s opinion that the cocaine base was possessed for sale was based on an improper hypothetical, defendant did not possess or control the money found in the residence, and defendant did not rent or control the location where the cocaine base and handgun were found. Sufficient evidence supports defendant’s conviction and sentence enhancement.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
People v. Parra (1999) 70 Cal.App.4th 222, 225-226 sets forth the elements for conviction of possession of a controlled substance for sale: “In order to secure a conviction of a violation of Health & Safety Code section 11351, the prosecution must prove beyond a reasonable doubt that (1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it.”
The trial court instructed the jury on the elements of possession for sale of cocaine base with CALJIC No. 12.01.
“It is well established that one may become criminally liable for possession for sale . . . of a controlled substance, based upon either actual or constructive possession of the substance. [Citation.] Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another. [Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 417; People v. Rushing (1989) 209 Cal.App.3d 618, 622 [“Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]”].)
“Drug possession is indeed a ‘continuing’ offense, one that extends through time. Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession. [Citations.] And when, at any time during the commission of the felony drug possession, the defendant can resort to a firearm to further that offense, the defendant satisfies the statutory language of being ‘armed with a firearm in the commission . . . of a felony.’ (§ 12022, subd. (a).)” (People v. Bland (1995) 10 Cal.4th 991, 999 [the defendant was subject to an enhancement for being armed with a firearm during the commission of a felony – possession of cocaine base for the purpose of sales – when the defendant kept the drugs and gun together, even though the defendant was not present when police seized the drugs and firearm from the defendant’s house].)
A. The Prosecutor’s Hypothetical
The prosecutor gave Detective Buchanan the following hypothetical:
“If I were to tell you that the person that possessed those 16 bindles was the same person that possessed the gun and at home, at his residence, possessed 57 – strike that – 56,48 – I’m sorry. 56 -- $56,487, excuse me. It’s late – in his home with the money stashed in different locations inside the home, and on his person at the time a search was conducted, when the 56,000 was found on his person, had $1,399, would you have an opinion as to why what is depicted in the photograph marked People’s 41 [the 16 bindles of cocaine base] would be possessed?” Based on that hypothetical, Detective Buchanan opined that the 16 bindles were possessed for the purpose of sales.
Defendant contends that the hypothetical was based on facts not in evidence because it contained the untrue statement that the $56,000 was found on his person. Defendant mischaracterizes the prosecutor’s hypothetical. Although somewhat disjointed, it is clear that the hypothetical asked Detective Buchanan to assume that the person had $1,399 on his person at the time that $56,000 was found in his home.
Defendant further challenges the hypothetical on the ground that “the witness” assumed that the drugs and the gun could only have been inside the pool table if put there by a person with a key. Such an opinion, defendant argues, is outside the scope of expert witness testimony. Again, defendant mischaracterizes the prosecutor’s hypothetical. The hypothetical did not address the manner in which the cocaine and handgun came to be in the pool table.
Defendant asserts the hypothetical was deficient because it left out the fact that there was a “very large hole” in the underside of the pool table. Defendant misses the point of the hypothetical. The point of the hypothetical was to elicit an opinion about the purpose for which the cocaine was possessed – that is, whether it was possessed for the purpose of sales – not an opinion about who possessed the cocaine or handgun or how they might have been put in the pool table.
Defendant also complains about what he says is an impermissible expert opinion on the ultimate issue. But an expert may give an opinion that, based on various factors, the drugs were possessed for the purpose of sales. (People v. Carter (1997) 55 Cal.App.4th 1376, 1377-1378.)
B. The Money in the Residence
Defendant contends that the evidence shows that the money found in his bedroom was not his. White testified that the money was hers and, defendant asserts, the prosecution did not rebut her testimony. Defendant’s contention is unavailing.
From its verdict, it is clear that the jury determined that defendant possessed the money based on the fact that it was found in his bedroom and rejected White’s testimony. We must draw all reasonable inferences in support of the judgment. (People v. Wader, supra, 5 Cal.4th at p. 640.) “[I]t is not within our province to reweigh the evidence or redetermine issues of credibility.” (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Virtually all of the money found in the residence was found in defendant’s bedroom – in a bank pouch hidden in a suit bag that contained a man’s suit, in a Cristal box, and in a nightstand next to defendant’s bed. Accordingly, the jury’s determination that defendant possessed the money found in the residence is reasonable and based on sufficient evidence.
Moreover, even without the evidence of the money found in the residence, there was sufficient evidence that the cocaine base was possessed for the purpose of sales. Detective Buchanan testified that if he only considered the possession of the 16 bindles of rock cocaine, possession of that amount of rock cocaine would cause him to believe the rock cocaine was possessed for the purpose of sales. The testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Also, Detective Miller testified that he believed that the cocaine base found at 1702 East Alondra was possessed for the purpose of sales. His opinion was not based on the hypothetical that defendant contends is defective. As with Detective Buchanan’s testimony, Detective Miller’s testimony alone is sufficient to support defendant’s conviction. (Ibid.)
C. The Location Where the Cocaine Base and Handgun Were Found
Defendant contends that the evidence shows that he did not rent or control the location where the cocaine base and handgun were found. Defendant contends that the evidence shows that he told his landlord that he was closing his business and left by June 24, 2005. Carter, a Compton business license inspector, testified that defendant contacted him to close the business license on June 23, 2005, and that, sometime thereafter, he (Carter) noticed a new tenant who moved in without a proper license, but he did not know the date that tenant moved in. Beauchamp testified that defendant’s telephone was disconnected on June 24. In addition, Beard testified he sublet the premises to defendant and that prior to that, Old Man Eddie had rented the premises and had run a pool hall, shoe shine and candy store. Upon Old Man Eddie’s death, his family took out some items from the premises, but left the pool table and glass showcases. It was then that defendant sublet the property, but he still allowed people to use the pool table. Some items were offered for sale. Beard said that defendant moved out all of his property by June 24, 2005, and others moved in on June 27 or 28, 2005.
Defendant speculates that because of other criminal activity in the neighborhood, that criminal element could have placed the cocaine base and handgun in the pool table. Defendant also speculates that Old Man Eddie or the tenants who came after defendant could have left the cocaine base and handgun. Defendant argues that his possession of the key to the pool table “did not by any means establish exclusive control to the table’s interior as there was a large hole in the table by which access could be gained.” Defendant concedes that there was evidence that it was difficult to remove the cocaine base and handgun from the hole, but argues that there was no evidence about how difficult it would be to reach in the hole and hide the drugs and handgun.
Sufficient evidence establishes that defendant had dominion and control over the cocaine base and handgun that were found in the pool table. The pool table had been in defendant’s possession during the time his business occupied that location. Defendant allegedly closed his business and vacated the location only days before the search of the pool table. The officers who searched the pool table were unable to access the cocaine base and handgun through the hole in the bottom of the table and had to pry open a locking mechanism on a door on the side of the pool table to reach the drugs and handgun. A key that opened the locking mechanism was found in the center console of defendant’s van. Even if defendant vacated the location prior to the search of the pool table, his possession of the key to the locking mechanism on the pool table at the time of the search establishes that he maintained constructive if not actual possession over the pool table and its contents. (People v. Morante, supra, 20 Cal.4th at p. 417; People v. Bland, supra, 10 Cal.4th at p. 999.)
II. The Denial of Defendant’s Motion to Disclose the Identity of a Confidential Informant and the Admission of Evidence Related to the Confidential Informant
Defendant contends that his due process rights under the Fourteenth Amendment and right to present witnesses under the Sixth Amendment’s confrontation clause were violated when his motion to disclose the identity of a confidential informant was denied while the prosecution witnesses were allowed to testify about events to which the confidential informant was a percipient witness. Defendant’s motion was properly denied.
“[T]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing ‘“‘some evidence’”’ on this score. [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 159.) A “defendant’s showing to obtain disclosure of an informant’s identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility.” (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1044.) Prior to the preliminary hearing, defendant moved for disclosure of the identity of the confidential informant. On September 8, 2005, Judge Eleanor Hunter, after obtaining proposed questions from defense counsel, held an in camera hearing, after which she denied defendant’s motion to reveal the identity of the confidential informant. Judge Hunter said that the confidential informant “falls not into the category of material witness based on the charges, but somebody who actually supplied information for the probable cause hearing.”
On November 29, 2005, after the preliminary hearing, defendant filed a motion to suppress evidence pursuant to section 1538.5, for disclosure of the identity of the confidential informant, and for dismissal pursuant to section 995 if the informant was not disclosed. At the time that motion was to be heard, defense counsel indicated that she was not ready to proceed and Judge Arthur Lew took the motion off calendar.
Thereafter, on December 6, 2005, defendant filed an amended motion, which included motions for disclosure of the confidential informant and dismissal pursuant to section 995 if the informant was not produced. The motion was heard by Judge Steven Suzukawa prior to trial. At the hearing, Judge Suzukawa stated, “[a]s far as the informant disclosure motion, that has already been ruled on by Judge Hunter. That was heard and denied September 8th. There is no reason to revisit that issue.”
Judge Suzukawa further stated that (1) whether the informant was relevant for trial had already been ruled on; (2) the informant was not needed to establish probable cause—only guilt or innocence; (3) there was no need to hold a hearing to traverse or quash a warrant because defendant had “not raised, by way of affidavit or declaration, relevant admissible evidence that would require this court [sic] hold a hearing pursuant to Franks v. Delaware[(1978) 438 U.S. 154].” (People v. Brown (1989) 207 Cal.App.3d 1541); (4) as far as guilt or innocence, “that matter has been dealt with; and just for purposes of making the record, I would just direct counsel to [People v. Dimitrov (1995) 33 Cal.App.4th 18]. [¶] See, the problem with your motion[] is the date of the offense is June 29th. That is when the search warrant was served. The informant, if he was there at all, was there prior to the signing of the search warrant, which was June 23rd, so that is why he is not relevant for purposes of guilt or innocence so the 995 motion will be denied as well. [¶] . . . [¶] Why the detectives decided to go to a particular pool table is not relevant, certainly not in terms of guilt or innocence.” Judge Suzukawa added that it did not matter that the prosecution had not filed a written response to defendant’s motion because, “I read the motion. As a court of law, I have a right to do my own research and make my own determination. I have done that.” Judge Suzukawa transferred the case for trial.
The California Supreme Court has not settled the question of whether a trial court’s denial of a motion to disclose the identity of a confidential informant is subject to de novo review or is reviewed for abuse of discretion. (People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.) Accordingly, we will review Judge Suzukawa’s ruling de novo.
Judge Suzukawa initially said he would not “revisit” the earlier ruling on the confidential information, but then went on to make his own determination. As we discuss, based on our de novo review, whether the Judge Suzukawa made his own determination or simply acceded to Judge Hunter’s earlier ruling, there was no prejudicial error. We note, however, that the record suggests that Judge Suzukawa “for purposes of making the record” made his own determination. Moreover, Judge Hunter did determine that the confidential informant was not a material witness in connection with guilt or innocence.
In his affidavit in support of a search warrant for defendant’s business and home, Detective Miller stated that, on April 5, 2005, he was told by a confidential source that cocaine could be purchased through a particular telephone number. The confidential source told Detective Miller that the person using that telephone number to sell cocaine was a male known as “Brimm.” “Brimm” drove a white camper van or a Cadillac Escalade to do his deliveries. “Brimm” also conducted narcotics transactions at 1702 East Alondra Boulevard in Compton.
Detective Miller contacted a reliable confidential informant who agreed to attempt to purchase cocaine using the telephone number provided by the confidential source. Detective Miller and the confidential informant set up two purchases of cocaine from defendant at the Alondra Boulevard address. After the first purchase, defendant went to 16702 South Thorson Avenue in Compton. For the second purchase, defendant traveled from the Thorson Avenue address to the Alondra Boulevard address where he sold the confidential informant cocaine. Based on the information in the affidavit, a search warrant was issued for the Alondra Boulevard and Thorson Avenue addresses.
Defendant has presented no evidence on which we may base a holding that the confidential informant could have given evidence on the issue of guilt that might have exonerated defendant and thus was a material witness. (People v. Lawley, supra, 27 Cal.4th at p. 159.) The controlled buys took place on June 16, 2005, and June 21, 2005. The search of the Alondra Boulevard and Thorson Avenue addresses took place on June 29, 2005. Defendant was charged with offenses based on the cocaine base and handgun found during the searches that took placed on June 29, 2005. Defendant does not cite to any part of the record that indicates that the confidential informant was present for either search.
Defendant sets forth various matters about which the confidential informant might have testified. Defendant suggests that the confidential informant could have offered information about the physical location of the cocaine base in the store before it was sold to him; the confidential informant could have testified about who possessed and sold defendant the cocaine base, whether defendant took the cocaine base from the pool table, whether they were in the premises and had access to the location of the cocaine base, whether defendant used a key or the hole in the bottom of the pool table to access the cocaine base, and whether defendant made any statements about his move from the premises later that month. According to defendant, this information would bear on whether defendant had possession of the cocaine base found on June 29, 2005. Also, from the confidential informant’s conversations with defendant, defendant suggests, the jury could have determined whether he had the specific intent to sell the cocaine base or if he possessed it for personal use. Defendant provides no information suggesting that the confidential informant could or would provide the information he needs. Defendant’s showing is sheer speculation that does not rise to the “low plateau of reasonable possibility.” (People v. Tolliver, supra, 53 Cal.App.3d at p. 1044.) Moreover, Judge Suzukawa correctly noted that the confidential informant was not present on the dates the drugs were found. The possession for sale finding was based on factors unrelated to the confidential informant. The confidential informant’s alleged purchases of the drugs were not the subject of this case. Based on the evidence discussed above, “there was no reasonable possibility this confidential informant could give evidence on the issue of guilt that could result in appellant’s exoneration.” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 31 [used abuse of discretion standard].) All of the points to which defendant claims the informant might testify, are of no significance. The drugs were found in a location to which defendant had control; and defendant had possession of the key that opened the locking mechanism to reach the drugs. As we discussed, that the others may have had access to the premises or drugs does not affect defendant’s possession of the drugs. Thus, it does not matter what the informant saw days earlier. Finally, defendant dealt directly with the confidential informant. There is no showing that defendant could not locate this individual, thus suggesting that defendant suffered no prejudice from the nondisclosure of the informant. We have reviewed the Superior Court file. In connection with the amended motion defendant filed on December 6, 2005, defense counsel filed her declaration under seal in which she stated that the defense knew the confidential informant’s identity.
Defendant also contends that the trial court (Judge Paul Bacigalupo) should not have allowed Detective Miller and Sergeant Gibbs to testify about defendant’s activities at the Alondra Boulevard address on June 16, 2005, and June 21, 2005 – the dates of the confidential informant’s controlled purchases of cocaine base from defendant – when disclosure of the confidential informant’s identity had been denied because the confidential informant was a percipient witness to the events about which the officers testified. Defendant argues that “[g]iven the facts of the case, [he] could have been present to move things in anticipation of his quitting the location on the 24th of June, mere days later, instead of to sell drugs. The [confidential informant] was in the position to shed light on [defendant’s] conduct at the location on those dates (the 16th and 21st). In this manner, the informant could offer relevant evidence as to who possessed and sold narcotics from the location. He could offer evidence directly contradicting what Gibbs and Miller testified to had happened on the 16th and 21st.” Defendant mischaracterizes the nature and purpose of the officers’ testimony.
Detective Miller testified that, as part of a narcotics investigation, he went to 1702 East Alondra Boulevard from eight to 10 times from April 4, 2005 to the close of the investigation. Detective Miller saw defendant at that location on June 16, 2005, June 21, 2005, and June 23, 2005. On two of those occasions, Detective Miller saw defendant enter the business, but he was unable to see how defendant gained access as Detective Miller was driving by the location at the time. Sergeant Gibbs testified that, on June 16, 2005, and June 21, 2005, he saw defendant enter a business at 1702 East Alondra. Sergeant Gibbs was able to see how defendant gained accessed to the building, testifying that defendant used a key.
Neither Detective Miller nor Sergeant Gibbs testified that defendant was at the Alondra Boulevard address on the relevant dates to sell drugs. In light of the fact that the officers merely testified that defendant entered the Alondra Boulevard address on June 16, 2005, and June 21, 2005, it is difficult to discern what information the confidential informant could provide on the fact that defendant entered the premises. As defendant presented evidence that he subleased the location on Alondra Boulevard at least until June 24, 2005, testimony contradicting the officers’ testimony that he entered that location on June 16, 2005, and June 21, 2005 would not be of any significant benefit to defendant’s defense. Defendant’s contention that the confidential informant could offer relevant evidence as to who possessed and sold cocaine base from the Alondra Boulevard address is simply a restatement of his contention that the confidential informant’s identity should have been disclosed and not a justification for barring the officers’ testimony that they saw defendant enter that location on June 16, 2005, and June 21, 2005.
The purpose of the officers’ testimony was to show that defendant had possession and access to the business at 1702 East Alondra Boulevard, at least as late as June 21, 2005. The prosecutor expressly stated that that was the purpose of Sergeant Gibbs’s testimony. As defendant, in effect, conceded this point when he put on evidence that he vacated 1702 East Alondra Boulevard on June 24, 2005, the trial court did not err in permitting Detective Miller’s and Sergeant Gibbs’s challenged testimony.
III. Defendant’s Contentions Concerning the Disclosure of Detective Sawai’s Search of Defendant’s Closet
Defendant contends that the prosecution failed, in effect, to disclose any exculpatory evidence in violation of his due process rights and right to confrontation when it did not disclose the fact that Detective Sawai participated in the search of defendant’s bedroom closet and found women’s clothing. The prosecution did not improperly withhold this evidence.
A. Proceedings in the Trial Court
Detective Armond testified that he found a large amount of money inside a Bank of America deposit pouch that was inside a suit bag hanging in the closet. There was a large men’s suit in the suit bag. Only clothes that would fit a large man were in the area of the closet where Detective Armond found the suit bag and deposit pouch. According to Detective Armond, “all the clothes in there belonged to a male” and the closet appeared to belong to one person. Detective Armond did not search the entire closet, he searched the north and west sides. Detective Sawai searched the remainder of the closet. Detective Armond did not discuss with Detective Sawai what Detective Sawai discovered in his search.
Defense counsel objected that there was a Brady violation because the prosecution had not disclosed that Detective Sawai had searched part of the closet. According to defense counsel, one of the prosecution’s exhibits, a photograph, showed a woman’s skirt hanging in the part of the closet that Detective Sawai searched. Thus, the prosecution had failed to disclose evidence that another person shared the closet. Defense counsel asked the prosecution to produce Detective Sawai. The prosecutor responded that Detective Sawai was not on her witness list and had not been subpoenaed. Moreover, the prosecutor argued, defense counsel “had the same photograph that I had.” The trial court ruled that the matter went to the weight of the evidence, but asked the prosecutor to determine if Detective Sawai was available.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
Two days later, defense counsel asked the trial court to order Detective Sawai to appear in court. Defense counsel stated that she could not subpoena the officer because it takes five days to subpoena a police officer, and there was not enough time. Defense counsel had contacted Detective Sawai through the officer’s sergeant, but apparently was unable to convince him to come to court. Detective Miller explained that he had tried, unsuccessfully, to contact Detective Sawai after the trial court’s request that the prosecutor determine if Detective Sawai was available. The prosecutor noted that Detective Sawai’s name was on a report concerning the impounding of a car that was provided to defense counsel in discovery and argued that defense counsel could have subpoenaed all of the witnesses. The prosecutor argued that there was no Brady violation because defense counsel “had the photographs, the reports . . . .” Defense counsel asked the trial court to rule on the Brady issue and the trial court ruled that there was no Brady violation.
B. The Prosecution’s Duty to Disclose Evidence
The United States Supreme Court has held that the prosecution’s suppression of evidence that is favorable to an accused, including impeachment testimony, violates the Fourteenth Amendment Due Process Clause where it is material either to issues of guilt or punishment, irrespective of the good faith of the prosecutor. (Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady); United States v. Bagley (1985) 473 U.S. 667, 675-676) (Bagley); see also People v. Ochoa (1998) 19 Cal.4th 353, 473 (Ochoa).) Evidence is favorable to an accused if the defense could use it either to impeach the state’s witnesses or to exculpate the accused. (Bagley, supra, 473 U.S. at p. 676; Ochoa, supra, 19 Cal.4th at p. 473.) Evidence is material “‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ [Citation.]” (Kyles v. Whitley (1995) 514 U.S. 419, 433- 434 (Kyles).) “A ‘reasonable probability’ is one sufficient to ‘undermine [] confidence in the outcome.’ (United States v. Bagley, supra, 473 U.S. at p. 678 [105 S.Ct. at p. 3381].)” (Ochoa, supra, 19 Cal.4th at p. 473.)
Brady “is a disclosure rule, not a discovery rule.” (United States v. Higgins (7th Cir. 1996) 75 F.3d 332, 335.) Brady material must be disclosed in time for its effective use at trial (In re United States v. Coppa (2d Cir. 2001) 267 F.3d 132, 142), but such disclosure need not precede trial (United States v. Higgins, supra, 75 F.3d at p. 335). “If a defendant receives exculpatory evidence ‘in time to make effective use of it,’ a new trial is, in most cases, not warranted.” (United States v. Dean (C.D.Cir. 1995) 55 F.3d 640, 663.) A defendant claiming a Brady violation has the burden on appeal of establishing that the evidence was withheld and that it was material. (Strickler v. Greene (1999) 527 U.S. 263, 289.)
There was no Brady violation because there is no reasonable probability that, had information that Detective Sawai searched defendant’s closet and found women’s clothing been disclosed to the defense, the result would have been different. (Kyles, supra, 514 U.S. at pp. 433- 434.) The money at issue was found in defendant’s bedroom in a bank pouch secreted in a suit bag that contained a man’s suit in a part of the closet that held only men’s clothes. This evidence strongly suggests that defendant alone possessed the money. In the face of such strong evidence that defendant alone possessed the money, the fact that White’s clothes also were in the closet would, at best, establish joint possession of the money. (People v. Newman (1971) 5 Cal.3d 48, 52 [“possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another”], disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)
Moreover, even in the absence of Detective Sawai’s testimony, evidence was presented that there were women’s clothes in the closet. The prosecution introduced the photograph that showed a woman’s skirt, and defendant’s mother testified that she kept clothes in that closet. Also, significantly, the prosecutor offered to stipulate that White’s clothes were in defendant’s closet. Defense counsel did not accept the stipulation.
Finally, as noted above, even without the evidence of the money found at defendant’s residence, there is sufficient evidence supporting defendant’s conviction for possession of cocaine base for the purpose of sales. Detective Buchanan testified that if he only considered the possession of the 16 bindles of rock cocaine found at defendant’s business, possession of that amount of rock cocaine would cause him to believe and render the opinion that the rock cocaine was possessed for the purpose of sales.
C. Defendant’s Right to Confront Witnesses
The Sixth and Fourteenth Amendments to the United States Constitution guarantee that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S. 400 [extending Sixth Amendment to state proceedings through Fourteenth Amendment].) The California Constitution also affords a criminal defendant a right of confrontation. (Cal. Const., art. I, § 15 [“The defendant in a criminal cause has the right . . . to be confronted with the witnesses against the defendant”].)
To effectuate this guarantee, the trial court must afford a criminal defendant the opportunity for effective cross-examination of adverse witnesses. (Delaware v. Fensterer (1985) 474 U.S. 15, 19-20; People v. Carter (2005) 36 Cal.4th 1114, 1172.) “[T]he cross-examiner is not only permitted to . . . test the witness’[s] perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” (Davis v. Alaska (1974) 415 U.S. 308, 316.) Accordingly, a “‘“criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’”’” (People v. Chatman (2006) 38 Cal.4th 344, 372, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.)
Even if as defendant argues, Detective Sawai had evidence favorable to defendant, defendant was not deprived of his right to be confronted by the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) Similarly, as Detective Sawai was not called as a witness, defendant was not denied the opportunity of cross examining a witness. Defendant cites no authority that states that a defendant’s right to confront the witnesses against him is violated when the prosecution fails to disclose a witness with evidence favorable to the defendant. Such a claim is properly asserted under Brady, supra, 373 U.S. 83.
D. The Prosecution’s Duty to Preserve Evidence
“‘“Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ (California v. Trombetta (1984) 467 U.S. 479, 488 [104 S.Ct. 2528, 2535, 81 L.Ed.2d 413] [Trombetta ]; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 [39 Cal.Rptr.2d 607, 891 P.2d 153].) To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [109 S.Ct. 333, 337, 102 L.Ed.2d 281].) In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ (Id. at p. 58 [109 S.Ct. at p. 337]; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)” [Citation.]’ (People v. Catlin [2001] 26 Cal.4th [81] at pp. 159-160.)” (People v. Farnam (2002) 28 Cal.4th 107, 166.)
Defendant contends that the prosecution’s failure to disclose Detective Sawai’s participation in the search of defendant’s bedroom closet and to produce Detective Sawai at trial prevented defendant from introducing Detective Sawai’s testimony that he found women’s clothing in the closet, thus effectively destroying Detective Sawai’s testimony. Detective Sawai’s testimony, or the evidence he possessed was not destroyed. It simply was not presented at trial. Like his claim to have been denied the right to confront the witnesses against him, this claim is properly asserted under Brady, supra, 373 U.S. 83. Moreover, even if a Trombetta claim were cognizable under these facts, such a claim would fail because “comparable evidence” – evidence that women’s clothes were in the closet – was available in the form of the prosecution’s photographic exhibit, White’s testimony that she had clothes in the closet, and the prosecution’s proffered stipulation that White’s clothes were in defendant’s closet. (Arizona v. Youngblood, supra, 488 U.S. at p. 57.)
E. CALJIC No. 2.28
In connection with his right to confrontation and Trombetta claims, defendant asserts that, at a minimum, the trial court should have instructed the jury with CALJIC No. 2.28 on the prosecution’s failure to timely produce evidence. The trial court properly denied defendant’s request. As we have held that the prosecution did not improperly withhold evidence concerning Detective Sawai’s search of defendant’s bedroom closet, instructing the jury on the prosecution’s failure to timely produce evidence was not warranted.
CALJIC No. 2.28 provides, in relevant part:
Respondent contends that defendant forfeited this claim by failing to request the instruction. Respondent is mistaken; defense counsel did request the trial court to instruct the jury with CALJIC No. 2.28.
IV. Defendant’s Ineffective Assistance of Counsel Claim
Defendant claims that he received ineffective assistance of counsel when defense counsel failed to move for a mistrial when she learned that the prosecution had not disclosed the information concerning Detective Sawai’s search of defendant’s closet, when she failed to ask the trial court to inquire further about the ability of jurors who apparently were sleeping to continue as jurors, when she failed to object to the continuing presence of the jury of a juror who had been unable to deliberate because she was afraid of defendant’s family or to request a mistrial, and when she failed to object to an example of “constructive possession” given to the jury. Defendant has failed to demonstrate that defense counsel’s performance was prejudicially deficient.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674].) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721 [49 Cal.Rptr.2d 413, 909 P.2d 1017].)” (People v. Williams (1997) 16 Cal.4th 153, 215-216.)
In considering a claim of ineffective assistance of counsel, it is not necessary to determine “‘whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Concerning ineffective assistance of counsel claims, “‘“[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ (People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212], quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859].) A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. (People v. Wilson, supra, at p. 936 citing People v. Pope, supra, at p. 426.) ‘We recommended in Pope that, “[t]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus.”’ (People v. Wilson, supra, at p. 936, quoting People v. Pope, supra, at pp. 426-427, fn. 17.)” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
A. Failure to Request a Mistrial Regarding the Prosecution’s Non-Disclosure of Evidence Concerning Detective Sawai
We held, ante, that the prosecution did not improperly withhold evidence concerning Detective Sawai’s search of defendant’s bedroom closet. Accordingly, any motion for a mistrial on that ground would have been without merit and defense counsel’s performance – in failing to move for a mistrial – was neither deficient nor prejudicial. (People v. Williams, supra, 16 Cal.4th at pp. 215-216; In re Fields, supra, 51 Cal.3d at p. 1079.)
B. Failure to Request the Trial Court to Inquire About Sleeping Jurors
Under section 1089, a trial court may discharge a juror if good cause is shown that the juror is unable to perform her duty.The California Supreme Court has observed that “‘although implicitly recognizing that juror inattentiveness may constitute misconduct, courts have exhibited an understandable reluctance to overturn jury verdicts on the ground of inattentiveness during trial. In fact, not a single case has been brought to our attention which granted a new trial on that ground. Many of the reported cases involve contradicted allegations that one or more jurors slept through part of a trial. Perhaps recognizing the soporific effect of many trials when viewed from a layman’s perspective, these cases uniformly decline to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial. Citations.’ Citation. ¶ Although the duty to inquire as to juror misconduct is activated by a lower threshold of proof, in the present case the absence of any reference in the record to the juror’s inattentiveness over a more substantial period indicates that the trial court did not abuse its discretion in failing to conduct an inquiry.” (People v. Bradford (1997) 15 Cal.4th 1229, 1349 holding that the trial court did not abuse its discretion in failing to conduct an inquiry about a juror’s fitness even though the trial court had observed the juror sleeping during the trial one day, and was aware that the same juror had slept all day on the previous day.)
After defense counsel had cross-examined Detective Buchanan for some time, the trial court interrupted and, at sidebar, stated, “Counsel, I don’t know what point you’re trying to make here, but your examination has been excessive. It is, and it is not producing the information that you are seeking to yield. This jury – you’re losing them and you need to get focused at this time. I don’t know where you’re going. I’ve made that request a couple of times, and at this point, unless you can make an offer as to where this is going to continue to the extent that you’ve been now examining this witness for more than 55 minutes this afternoon in addition to this morning, I’m very concerned and troubled.” After some discourse between the trial court and defense counsel, the prosecutor stated, “I think a couple of the jurors might be dozing. I don’t know if you can ask them to stand and stretch.” The trial court responded, “They’re dozing. They’re laughing. They’re doing all kinds of things. I’m getting concerned.” The record on appeal does not disclose why defense counsel did not ask the trial court to inquire as to the sleeping jurors’ ability to continue serving as jurors. It may be defense counsel decided that such an inquiry was not warranted under People v. Bradford, supra, 15 Cal.4th 1229, because the jurors had fallen asleep for a very brief time or they may not have fallen asleep until the break in testimony when the trial court addressed defense counsel’s lengthy cross-examination of Detective Buchanan. It may also be that the jurors were not actually sleeping and defense counsel recognized the prosecutor’s and the trial court’s statements as hyperbole aimed at highlighting the length of defense counsel’s cross examination. Because we are unable to determine why defense counsel did not ask the trial court to inquire about the sleeping jurors’ fitness, we must reject this claim on appeal. (People v. Wilson, supra, 3 Cal.4th at p. 936.) Defendant’s claim of ineffective assistance on this ground is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
C. Failure to Request That a Juror be Discharged or to Move for a Mistrial
During deliberations, the jury sent the trial court two notes. The first note stated, “The jury is deadlocked. We cannot come to a definitive decision. The jurors voting guilty and not guilty, and one juror who will not vote.” The second note stated, “We have one undecided juror # 9843 who saw the defendant’s family over the weekend and she’s concerned for her safety.”
The trial court brought Juror No. 9843 from the jury room and inquired about her concern. The juror explained that during the prior weekend, she had seen defendant’s mother and a woman who appeared to be defendant’s relative at a mall that she and her relatives frequented. The juror and the women looked at each other in passing. The women did not say anything to Juror No. 9843 or make any gestures. The trial court told Juror No. 9843 that her personal identifying information would be conditionally sealed; only in rare circumstances would that information be disclosed. The trial court explained that jurors have a duty to make an honest and conscientious effort to apply the law to the facts and to do so without any interference by extraneous matter including a feeling that their safety might be jeopardized in some manner. Juror No. 9843 was to cast her vote in an objective and honest way. The trial court asked Juror No. 9843 if she could fulfill her obligation. The juror stated that she could.
The record on appeal does not disclose why defense counsel did not ask the trial court to discharge Juror No. 9843 or move for a mistrial. It may be defense counsel believed that Juror No. 9843 could deliberate fairly after the trial court informed her that her personal identifying information would be conditionally sealed and admonished her about her duties and the juror stated that she could fulfill those duties. Defense counsel may also have believed that this particular juror was a desirable one or preferable to the alternates or that the jury was as good as defendant could obtain. Because we are unable to determine why defense counsel failed to take either of the actions defendant asserts on appeal that she should have taken, we must reject this claim on appeal. (People v. Wilson, supra, 3 Cal.4th at p. 936.) Defendant’s claim of ineffective assistance on this ground is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
D. Failure to Object to the Trial Court’s Example of Constructive Possession
During deliberations, the jury sent the trial court a request for “clarifying examples of constructive possession.” The parties and the trial court agreed to have the trial court instruct the jury to re-read CALJIC No. 12.01 and to give the jury the following example of constructive possession: “If a person knowingly exercises control over or the right to control a safety deposit box or gym locker or back pack, he or she has constructive possession of the contents thereof.”
CALJIC No. 12.01 instructed the jury:
Defendant contends that the trial court’s safety deposit box example of constructive possession was misleading because it did not deal with joint constructive possession and because “[i]t allowed the jury to convict if the prior tenant left the contraband in the pool table then abandoned the pool table at the location. The defendant had the right to open, control, etc., the pool table, but had no knowledge of contents. [¶] A safe deposit box may have contraband put in it by another person and the accused not know this, yet he has ‘control’ over the box.” Defendant claims that it was ineffective assistance when defense counsel did not object to the example.
Along with the safety deposit box example of constructive possession, the trial court had the jury re-read CALJIC No. 12.01. CALJIC No. 12.01 instructed the jury on joint constructive possession – it instructed the jury that “two or more persons together may share . . . constructive possession.” It also instructed the jury that it had to find that defendant knew of the cocaine base’s presence and its nature as a controlled substance to find defendant guilty of the crime of illegal possession for sale of a controlled substance. The jurors are presumed to have understood and followed the trial court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Thus, the jury would not have believed that it could find defendant guilty if the prior tenant left the contraband in the pool table without defendant’s knowledge. Accordingly, defense counsel’s performance – in failing to object to the trial court’s safety deposit box example of constructive possession – was not necessarily deficient or prejudicial. (People v. Williams, supra, 16 Cal.4th at p. 215; In re Fields, supra, 51 Cal.3d at p. 1079.) Moreover, defense counsel may have had a reason for not objecting. For example, the example could have been seen as favorable. Again, the ineffective assistance of counsel claim is better dealt with in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
V. Cumulative Error
Defendant contends that if any of the individual errors he asserts on appeal is insufficient to warrant reversal, then the cumulative effect of those errors establishes a due process violation. Because we reject each of defendant contended errors, there is no cumulative effect justifying reversal.
VI. Fee and Fines
Respondent contends that defendant’s offense of violating Health and Safety Code section 11351.5 made him liable for a $50 mandatory criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a), a mandatory $50 penalty pursuant to section 1464, and a mandatory $35 penalty pursuant to Government Code section 76000 that the trial court omitted from defendant’s sentence. Respondent did not forfeit this issue by failing to object in the trial court. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1152, 1157; People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) Defendant did not address this issue in his reply brief, effectively conceding the issue.
Health and Safety Code section 11372.5, subdivision (a) states: “Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions Code shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment. [¶] With respect to those offenses specified in this subdivision for which a fine is not authorized by other provisions of law, the court shall, upon conviction, impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law.”
The trial court erred in failing to impose the mandatory fee and penalties. Accordingly, the abstract of judgment is ordered modified to include a $50 mandatory criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a), a mandatory $50 state penalty assessment pursuant to section 1464, subdivision (a), and a mandatory $35 county penalty pursuant to Government Code section 76000, subdivision (a).
The trial court also erred in failing to impose a 20 percent – $10 – state surcharge on the $50 criminal laboratory analysis fee (§ 1465.7, subds. (a)), a $25 state court construction penalty on the criminal laboratory analysis fee (Gov. Code, § 70372, subd. (a)), a $25 state court construction penalty on the section 1464 penalty assessment (Gov. Code, § 70372, subd. (a)), a $17.50 state court construction penalty on the Government Code section 76000, subdivision (a) penalty (Gov. Code, §70372, subd. (a)), a $200 state court construction penalty on the section 1202.4, subdivision (b)(1) restitution fine (Gov. Code, §70372, subd. (a)), and a stayed $200 state court construction penalty on the section 1202.45 parole revocation restitution fine (Gov. Code, §70372, subd. (a)). (People v. Chavez (2007) 150 Cal.App.4th 1288, 1291-1293.) As noted above, the surcharge under section 1465.7 became inoperative on July 1, 2007. (§ 1465.7, subd. (h).) Respondent did not forfeit this issue by failing to object in the trial court. (See People v. Chavez, supra, 150 Cal.App.4th at p. 1292.)
Further, the trial court erred when it stayed $200 of the $400 restitution fine (§ 1202.4, subd. (b)(1)), and stayed $200 of the $400 parole revocation restitution fine (§ 1202.45), and when it imposed a $20 court security fine under section 1465.8 on only one of defendant’s two convictions (People v. Schoeb (2005) 132 Cal.App.4th 861, 865).
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered modified to include a $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a); a $50 penalty pursuant to section 1464, subdivision (a); a $35 penalty pursuant to Government Code section 76000, subdivision (a); state court construction penalties totaling $467.50 pursuant to Government Code section 70372, subdivision (a), of which total $200 is stayed, and $40 for in-court security fine pursuant to section 1465.8. The abstract of judgment also shall reflect a fully-imposed $400 restitution fine pursuant to section 1202.4, subdivision (b)(1) and a fully-stayed $400 parole revocation restitution fine pursuant to section 1202.45.
We concur: TURNER, P. J., KRIEGLER, J.
“The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [Concealment of evidence] [and] [or] [[D][d]elay in the disclosure of evidence] may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying party’s evidence.
“Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the [People] [Defendant[s]] [concealed] [and] [or] [failed to timely disclose] the following evidence:
“Although the [People’s] [Defendant’s] [concealment] [and] [or] [failure to timely disclose evidence] was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial.
“[¶] . . . [¶]
“[If you find that the [concealment] [and] [or] [delayed disclosure] was by the prosecution, and relates to a fact of importance rather than something trivial, and does not relate to subject matter already established by other credible evidence, you may consider that [concealment] [and] [or] [delayed disclosure] in determining the [[believability] [or] [weight] to be given to that particular evidence[.] [[, or] [ ].]”
“Defendant is accused in Count 1 of having committed the crime of illegal possession for sale of a controlled substance, a violation of Section 11351.5 of the Health and Safety Code.
“Every person who possesses or purchases for sale cocaine base, a controlled substance, is guilty of a violation of Health and Safety Code Section 11351.5, a crime.
“There are two kinds of possession: actual possession and constructive possession.
“‘Actual possession’ requires that a person knowingly exercise direct physical control over a thing.
“‘Constructive possession’ does not require actual possession but does require that a person knowingly exercise control over or right to control a thing, either directly or through another person or persons.
“One person may have possession alone, or two or more persons together may share actual or constructive possession.
“‘Sale’ means any exchange of cocaine base, for cash, favors, services, goods or other non-cash benefits.
“In order to prove this crime, each of the following elements must be proved:
“1. A person exercised control over or the right to control or purchased from another, an amount of cocaine base, a controlled substance;
“2. That person knew of its presence;
“3. That person knew of its nature as a controlled substance;
“4. The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and
“5. That person possessed or purchased the controlled substance with the specific intent to sell the same.”