Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA020851, Raymond L. Haight, III, Judge.
Andrew E. Rubin and Randall B. Bookout, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (count 2). In a bifurcated proceeding, the trial court found true that defendant had sustained one prior strike conviction (Pen. Code, § § 667, subds. (b)-(i), 1170.12, subd. (a)), one prior prison term (Pen. Code, § 667.5, subd. (b)), and four prior drug-related convictions (Health & Saf. Code, § 11370.2, subd. (c)). Defendant was sentenced to a total term of 19 years in state prison.
In his appeal, defendant contends (1) the trial court erred in instructing the jury with the consciousness of guilt instruction (Judicial Council of Cal. Crim. Jury Instns. (CALCRIM) No. 371); (2) his constitutional rights were violated when the trial court instructed the jury with CALCRIM No. 2302, the instruction defining “possession”; (3) his trial counsel was ineffective during trial; and (4) his concurrent sentence on count 1 should have been stayed pursuant to Penal Code section 654. We agree that count 1 should have been stayed but reject defendant’s remaining contentions and affirm the judgment.
I FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2003, Fontana Police Officer Michael Dorsey was on patrol when he pulled over defendant’s vehicle because it had illegally tinteded front windows. Officer Dorsey recognized defendant from prior encounters and asked defendant to step out of the car. For officer safety reasons, Officer Dorsey searched defendant and discovered a blue eyeglass case in the front pocket of defendant’s black leather jacket. Inside the case, the officer found a plastic sandwich bag containing approximately 10 grams of powder methamphetamine. When Officer Dorsey showed the eyeglass case with the plastic bag in it to defendant, defendant grabbed it and threw it over a nearby brick wall. Defendant also tried to flee, but Officer Dorsey caught him and then retrieved the eyeglass case and its contents.
Officer Dorsey continued to search defendant and found approximately 50 one-inch square plastic bags, which the officer had often seen used to package one-quarter gram quantities of methamphetamine. Officer Dorsey also found $396 in defendant’s pants pocket, including one $100 bill and fourteen $20 bills. No drug paraphernalia was found on defendant, and he was not under the influence of drugs when arrested. Based on his training and experience and the evidence, Officer Dorsey opined that defendant possessed the methamphetamine for sale.
Michael Kutz, who admitted that he had prior convictions for theft and receiving stolen property and that he and defendant had spent the six months before defendant’s trial together in the same jail facility, testified on behalf of the defense. He claimed that the jacket defendant was wearing at the time of his arrest and the methamphetamine belonged to him and not to defendant. He explained that he had inadvertently left the jacket with defendant in November 2003 and only later learned that defendant had been arrested for possession of the drugs in the jacket. Kutz also claimed that the methamphetamine was his personal “stash” and that, when he had offered some methamphetamine to defendant, defendant had turned him down. Kutz noted that he had used the one-inch square plastic bags to hold the beads he used to make jewelry in a hobby class in prison. He stated that he confessed to the drugs belonging to him because it was the “right thing to do.”
Kutz also testified that he had written a statement explaining how defendant came into possession of the jacket and the eyeglass case containing Kutz’s methamphetamine. Kutz later admitted that the statement was actually penned by defendant, but it was Kutz who signed it. Kutz denied that his testimony was fabricated.
II DISCUSSION
A. CALCRIM No. 371
Defendant contends that the trial court erred in instructing the jury on consciousness of guilt pursuant to CALCRIM No. 371.
The court instructed, “[I]f the defendant tried to hide evidence, that conduct may show he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance; however, evidence of such an attempt cannot prove guilt by itself. If the defendant tried to recreate [sic] false evidence or obtain false testimony that conduct may show he was aware of his guilt. If you conclude that the defendant made such an attempt, it’s up to you to decide its meaning and importance; however, evidence of such an attempt cannot prove guilt by itself.”
Defendant contends that this instruction should not have been given because there was no evidence of an attempt to create false evidence or obtain false testimony and that the instruction improperly related to the credibility of his defense witness, Kutz. The People respond that the instruction was proper because defendant made no mention to Officer Dorsey that the drugs belonged to Kutz when defendant was first arrested and, further, that an inference of fabrication can be made by the fact that defendant and Kutz had been in the same jail facility for the previous six months, and defendant had written out Kutz’s testimony for him to sign.
Defendant has no dispute with the first paragraph of CALCRIM No. 371, as there was evidence defendant attempted to hide the evidence by throwing the eyeglass case over a fence.
CALCRIM No. 371 is properly given where there is some evidence in the record that, if believed by the jury, sufficiently supports an inference of consciousness of guilt. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 [concerning CALJIC Nos. 2.04 & 2.06].) The instruction makes “clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citation.]” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) The inference of guilt suggested by CALCRIM No. 371 is a permissive one. (Cf. People v. Rankin (1992) 9 Cal.App.4th 430, 436.) The instruction applies “‘to situations where a defendant attempts to induce a witness to lie for him in a judicial proceeding or otherwise tries to fabricate evidence when a trial or prosecution is pending.’” (Jackson, at p. 1225.) Where there is no evidence to support the instruction, “at worst” it is “superfluous,” and, where the evidence of guilt is strong, reversal is not warranted. (People v. Pride (1992) 3 Cal.4th 195, 249; Jackson, at p. 1225.)
Kutz’s testimony, along with defendant’s failure to mention at the time of his arrest that the drugs did not belong to him, supported an inference that defendant attempted to persuade Kutz to testify falsely in support of defendant’s defense. Although Kutz denied that his testimony was fabricated or that defendant had told him what to say, the jury could draw the opposite conclusion. CALCRIM No. 371 instructed the jury to infer consciousness of guilt only if it found defendant attempted to procure false testimony. It was for the jury to determine whether defendant consciously attempted to obtain false testimony. And it was for the jury to attach “meaning and importance” to any purported attempt. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235-1236.) Finally, the instruction admonished the jury that evidence of consciousness of guilt, by itself, did not establish defendant’s guilt. (Id. at p. 1235.) We discern no error.
Even if we assume, for the sake of argument, the court erred in giving CALCRIM No. 371, any error was harmless. As cited above, evidence of defendant’s guilt was strong. “Under the circumstances, reversal on such a minor, tangential point is not warranted.” (People v. Pride (1992) 3 Cal.4th 195, 249.) In addition, the court told the jurors that they alone “must judge the credibility or believability of the witnesses” and instructed that the testimony of each witness must be judged by the same standard. (CALCRIM No. 226.) Defendant’s claim of prejudice is unpersuasive.
B. CALCRIM No. 2302
On the possession for sale count, the trial court instructed the jury with CALCRIM No. 2302, as follows: “The defendant is charged in count 1 with possession for sale of methamphetamine, a controlled substance. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant has possessed the controlled substance; two, the defendant knew of its presence; three, the defendant knew of the substance’s nature as a controlled substance; four, when the defendant possessed the controlled substance, he intended to sell it; five, the controlled substance was methamphetamine; and six, the controlled substance was in a useable amount. [¶] Selling for the purposes of this instruction means exchanging methamphetamine for money, services or anything of value. A useable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces or debris are not useable amounts. On the other hand, a useable amount does not have to be enough in either amount or strength to affect the user. . . . [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it either personally or through another person.” (Italics added.)
Defendant complains that when the jury instructions were rewritten to simplify the concept of “possession,” the result improperly eliminated concepts such as “knowing and intentional control” and “constructive possession.” He therefore concludes the flawed instruction undermined his defense and violated his federal constitutional rights. Defendant correctly asserts mere proximity to the contraband, presence on the property where it is located, or association with the person who controls the contraband is insufficient to support conviction for possession; the prosecution must prove defendant knowingly exercised control or the right to control the contraband. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) But here the trial court instructed the jury it could not convict unless it determined whether defendant knew the drugs were present and possessed them with intent to sell. A person who knows the contraband is present and has the control over or the right to control the contraband acts with the requisite knowledge.
People v. Montero (2007) 155 Cal.App.4th 1170 rejected similar arguments and concluded, “CALCRIM No. 2302 captures all of the elements of the crime of possession for sale. It correctly states the elements of possession and knowledge in a manner reasonable jurors are able to understand.” (Id. at p. 1177.) The court explained, “The instruction correctly expresses the knowledge requirement. Two kinds of knowledge are required: ‘knowledge of the fact of possession,’ and ‘knowledge of the character of the thing possessed.’ [Citation.] Repeating these elements, the instruction requires the jury to find that the defendant knew of the substance’s presence, and that he also knew the substance was a controlled substance. No knowledge of additional possession or control was required.” (Id. at p. 1176.)
The court also stated, “The instruction also correctly restates the possession requirement. Many courts have long stated this requirement as a showing that defendant exercised dominion and control over the controlled substance. [Citations.] [¶] This phrase is merely a different way of saying the defendant possessed the substance physically or constructively. Our Supreme Court has approved this summary of the elements of simple possession, a formula that does not contain the phrase ‘dominion and control’ . . . . [Citations.]” (People v. Montero, supra, 155 Cal.App.4th at pp. 1176-1177, fn. omitted.)
The court further noted, “The authors of CALCRIM No. 2302 were instructed to develop instructions that were legally accurate, understandable to the average juror, and written in plain English. [Citation.] They wisely decided not to perpetuate the redundancy. They did so by omitting the phrase in the instruction.” (People v. Montero, supra, 155 Cal.App.4th at p. 1177.)
We find Montero controlling and reject defendant’s arguments. Consequently, we find the trial court did not err in giving CALCRIM No. 2302.
C. Ineffective Assistance of Counsel
Defendant filed a petition for writ of habeas corpus on this issue (case No. E046606), which we ordered considered with this appeal. We will resolve that petition by separate order.
Defendant claims his trial counsel was ineffective by (1) opening the door to questions about his prior drug history; (2) eliciting testimony about his silence following Miranda warnings; and (3) failing to object to portions of the prosecutor’s closing argument.
Miranda v. Arizona (1966) 384 U.S. 436.
To prevail on an ineffective assistance claim, defendant bears the burden of establishing both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.CT. 2052, 80 L.Ed.2d 674].) He must show that defense counsel’s representation fell below an objective standard of reasonableness under prevailing professional standards and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Ibid.; People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. Dennis (1998) 17 Cal.4th 468, 540-541.) If defendant fails to establish either component, his claim fails.
In evaluating trial counsel’s actions, “[a] court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, 17 Cal.4th 468, 541.) Although trial counsel has the authority to control the judicial proceedings, that authority may not be used to deprive a defendant of “certain fundamental rights.” (People v. Brown (1986) 179 Cal.App.3d 207, 215.)
When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsel’s performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6; see also People v. Weaver (2001) 26 Cal.4th 876, 961.)
Here, assuming, without deciding, that trial counsel was deficient for the reasons noted in the parties’ briefs, defendant cannot show he was prejudiced by counsel’s actions or omissions. There was undisputed evidence that the officer discovered a blue eyeglass case with 10 grams of methamphetamine in the front pocket of defendant’s jacket after he was pulled over for a Vehicle Code violation. When the officer showed defendant the plastic bag containing the methamphetamine, defendant grabbed the plastic bag and threw it over a nearby brick wall. Defendant also tried to run away. These actions clearly showed a consciousness of guilt. The officer also found about 51 one-inch square plastic bags, which are often used to package methamphetamine, and $396 on defendant’s person. There was no drug paraphernalia on defendant, and he was not under the influence of drugs when arrested.
We need not belabor defendant’s specific claims concerning trial counsel’s deficient performance here, as these reasons are succinctly laid out in defendant’s supplemental opening brief.
Accordingly, even if trial counsel had (1) negligently opened the door to harmful questions concerning defendant’s prior drug history, (2) improperly elicited testimony from the officer concerning his right to remain silent following Miranda warnings, or (3) failed to object to the prosecutor’s closing comment on his failure to testify, defendant cannot show that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. In other words, there was no reasonable probability trial counsel’s action affected the verdict. Even if we assume for the sake of analysis the higher standard of harmless error applies under Chapman v. California (1967) 386 U.S. 18, we cannot say beyond a reasonable doubt trial counsel’s actions affected the verdict. The record reveals there was overwhelming evidence of defendant’s guilt.
Defendant also appears to argue that the numerous errors by trial counsel infecting the trial, even if not individually prejudicial, were cumulatively prejudicial. Defendant does not adequately explain why, even if we upheld all of his contentions of error, we should conclude that they were cumulatively prejudicial. Moreover, in light of our finding that the alleged errors were nonprejudicial, his cumulative error argument unquestionably fails.
In count 1, defendant was charged with and convicted of possession of a controlled substance for sale (Health & Saf. Code, § 11378, subd. (a)); in count 2, defendant was charged with and convicted of transportation of a controlled substance (Health & Saf. Code, § 11379). The court imposed a doubled three-year midterm on count 2 and a concurrent four-year midterm on count 1.
Defendant contends, and the People concede, that his sentence on count 1 should have been stayed pursuant to Penal Code section 654. We agree.
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . . ” (Pen. Code, § 654, subd. (a).) The statute applies to the penal provisions of the Health and Safety Code. (In re Adams (1975) 14 Cal.3d 629, 633.) Under Penal Code section 654, courts are generally precluded from imposing multiple punishment where a defendant engages in a course of conduct that violates more than one statute and comprises an indivisible transaction punishable under more than one statute. (Adams, at p. 634.) The focus of this rule is whether the defendant acted pursuant to a single intent and objective. (Ibid.) The resolution of this question is one of fact, and the sentencing court’s finding will be upheld on appeal if it is supported by substantial evidence.
The sentencing court here found that the possession for sale count was inseparable from the transportation count. This finding is supported by substantial evidence. The possession of the methamphetamine for sale and the transportation of the methamphetamine arose out of the same act of carrying the drug in the car with a single intent and objective. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Lopez (1992) 11 Cal.App.4th 844, 847-850.) Accordingly, defendant’s sentence on count 1 should have been stayed pursuant to Penal Code section 654.
III DISPOSITION
The judgment is modified to stay execution of the sentence on count 1 (possession of methamphetamine for sale). In all other respects the judgment is affirmed. The clerk is directed to prepare an amended abstract of judgment and to transmit certified copies of the amended abstract to the appropriate authorities.
We concur: RAMIREZ P.J., GAUT J.