Opinion
C079290
03-29-2017
THE PEOPLE, Plaintiff and Respondent, v. MELISSA BETH CHANDLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR032581)
A jury found defendant Melissa Beth Chandler guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378, subd. (a)), possession of drug paraphernalia (§ 11364, subd. (a)), possession of methamphetamine (§ 11377, subd. (a)), possession of Alprazolam (§ 11350, subd. (a)), and possession of hydrocodone (§ 11350, subd. (a)). After granting defendant's motion to strike the possession of methamphetamine conviction, the trial court suspended imposition of sentence and placed defendant on formal probation for a term of three years with various conditions, including the condition she serve 364 days in local custody.
Undesignated statutory references are to the Health and Safety Code.
On appeal, defendant contends the trial court prejudicially erred in excluding pharmacy records she sought to offer to show she had a prescription for Alprazolam and hydrocodone. In the alternative, she argues trial counsel rendered ineffective assistance by failing to produce, or to ask for a continuance to produce, the custodian of records to lay the proper foundation for the pharmacy records. Defendant further contends the matter must be remanded with directions to the trial court to orally pronounce each fine, fee, and penalty assessment it intended to impose. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issues raised on appeal, a detailed recitation of the underlying facts and procedural history of this case is unnecessary. It suffices to say defendant was charged with multiple drug-related crimes following a probation search of her residence on January 5, 2015, including possession of Alprazolam (§ 11350, subd. (a)) and possession of hydrocodone (§ 11350, subd. (a)). Prior to trial, defendant served a subpoena duces tecum on the Walmart pharmacy located in Susanville, California, requesting records of all prescriptions that were filled for her from January 1, 2010, through February 28, 2015. The subpoena directed the pharmacy to return the records with a completed declaration from the custodian of records.
The records produced by Walmart reflect that defendant was prescribed various drugs during the time period specified in the subpoena, including Alprazolam and hydrocodone. The records show that defendant had prescriptions filled for these drugs at a Walmart located in Susanville, California, and a Walmart located in Reno, Nevada. According to the records, defendant did not have any prescriptions for these drugs filled at the Walmart in Susanville after September 2013. The records further disclose that defendant had prescriptions filled for Alprazolam in May, June, and August 2014, and for hydrocodone in May and June 2014, at the Reno, Nevada, Walmart pharmacy.
At an in-chambers conference during trial, defense counsel expressed an interest in introducing the pharmacy records into evidence. After the prosecutor indicated she would object to the introduction of such evidence on the ground that the records lacked an adequate foundation, the trial court told counsel the prosecutor's objection "would be sustained excluding an exception" if defendant attempted to move the records into evidence.
Defendant did not present any evidence at trial, and a jury found her guilty of possession of methamphetamine for sale (§ 11378, subd. (a)), possession of drug paraphernalia (§ 11364, subd. (a)), possession of methamphetamine (§ 11377, subd. (a)), possession of Alprazolam (§ 11350, subd. (a)), and possession of hydrocodone (§ 11350, subd. (a)). After granting defendant's motion to strike the conviction for possession of methamphetamine on the ground it was a lesser included offense of possession of methamphetamine for sale offense, the trial court suspended imposition of sentence and placed defendant on formal probation for a term of three years with various conditions, including the condition she serve 364 days in local custody.
Defendant filed a timely notice of appeal.
DISCUSSION
A. Exclusion of Pharmacy Records
Defendant contends the trial court prejudicially erred in excluding the pharmacy records because the records were accompanied by an affidavit that fully complied with the Evidence Code. We disagree.
The admissibility of business records is an exception to the hearsay rule. Evidence Code section 1271 provides that "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule" if it meets all of the following requirements: "(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
When responding to a subpoena duces tecum, Evidence Code section 1560 permits the custodian of business records or other qualified witness to comply with the subpoena by mailing copies of the requested records to the clerk of the court together with the affidavit described in Evidence Code section 1561. (Evid. Code, § 1560, subd. (b).) Evidence Code section 1561 provides, in pertinent part: "(a) The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following: [¶] (1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records. [¶] (2) The copy is a true copy of all the records described in the subpoena duces tecum . . . [¶] (3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. [¶] (4) The identity of the records. [¶] (5) A description of the mode of preparation of the records."
An affidavit that has been prepared in accordance with Evidence Code section 1561 establishes the admissibility of the proffered business records under Evidence Code section 1271. (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044-1045.) "A trial judge is vested with wide discretion in determining whether a proper foundation has been laid for admission of business records under the business records exception. [Citation.]" (People v. Zavala (2013) 216 Cal.App.4th 242, 245.) "Determining whether a proper foundation has been laid for the admission of business records under Evidence Code section 1271 is within the trial court's discretion and 'will not be disturbed on appeal absent a showing of abuse.' [Citation.]" (Id. at p. 246.)
As an initial matter, to the extent the trial court's in-chambers statement regarding the admissibility of the pharmacy records constituted a ruling excluding the evidence, defendant did not discuss the matter in open court and on the record and, thus, did not preserve the issue for appeal. Nothing in the record establishes defendant challenged the court's off-the-cuff comments or tried to explain to the court, in chambers or in court, any basis for admitting the records. Accordingly, defendant's claim on appeal is forfeited. (People v. Dykes (2009) 46 Cal.4th 731, 756 ["numerous decisions by this court have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal"].)
But even if we were to address the merits of defendant's argument, we would find no error. Walmart's response to the subpoena duces tecum did not include an affidavit by the custodian of records or other qualified witness as required by Evidence Code section 1561. "An 'affidavit' is a written statement verified by oath or affirmation." (People v. Griffini (1998) 65 Cal.App.4th 581, 587; see Code Civ. Proc, § 2003 [defining affidavit as "a written declaration under oath, made without notice to the adverse party"].) Here, the pharmacy records were accompanied by a notarized "Certification of Records," not a written statement verified by oath or affirmation under penalty of perjury attesting to the truth of that which is stated. (See Palm Springs Alpine Estates, Inc. v. Superior Court (1967) 255 Cal.App.2d 883, 888 [a statement at the end of a document that the signatory appeared before a notary public and acknowledged the execution of the document is not the equivalent of an affidavit].) Accordingly, the trial court did not abuse its discretion in excluding the evidence.
B. Ineffective Assistance
We find no merit in defendant's alternative argument of ineffective assistance based on trial counsel's failure to produce, or ask for a continuance to produce, the custodian of records to lay the proper foundation for the pharmacy records. To prevail on this argument, "defendant must first show counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, [s]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. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 214-215.)
We conclude defendant has not shown deficient performance. "If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) On this record, we cannot conclude that trial counsel could not have possessed a satisfactory reason for not taking steps to properly introduce the pharmacy records.
C. Fines, Fees, and Penalties
Defendant contends the matter must be remanded with directions for the trial court to orally pronounce each fine, fee, and penalty assessment it intended to impose. According to defendant, the trial court did not orally pronounce the entire judgment as required by law, but instead improperly incorporated by reference various fines, fees, and penalty assessments set forth in an order prepared by the probation officer. We conclude that defendant has forfeited this claim. We further conclude that, even assuming defendant did not forfeit this claim, any error was harmless.
Our Supreme Court has repeatedly stated that "the [waiver] doctrine 'should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices.' " (People v. Tillman (2000) 22 Cal.4th 300, 302 (Tillman), quoting People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) In Tillman, the court explained that waiver principles encourage the proper development of the record and exercise of the trial court's discretion and help reduce the number of costly appeals. (Tillman, supra, at pp. 302-303.) The court added, " 'Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects . . . are easily prevented and corrected if called to the court's attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.' " (Id. at p. 303, original italics, quoting Scott, supra, 9 Cal.4th at p. 353.)
Defendant's argument is subject to the reasoning in Tillman and Scott. At the outset of the sentencing hearing, the trial court indicated that it was prepared to follow the recommendations of the probation officer. The trial court heard argument from the parties and then asked defendant and her counsel to review and sign the order prepared by the probation officer if they wanted that order to be the formal order of the court. After they did so, the trial court orally pronounced the court operations assessment fee and the criminal conviction assessment fee, and then noted that all other fines and fees "remain as stated" in the order prepared by the probation officer. The trial court suspended imposition of sentence and placed defendant on probation for a term of three years. The court pronounced some of the conditions of probation and then asked the parties whether they would waive further reading of the probation officer's order. After the parties agreed to do so, the court stated that the probation officer's order "shall now become the formal order of the Court."
The fees imposed for the court operations assessment and the criminal conviction assessment were different from the amounts recommended by the probation officer due to the striking of the possession of methamphetamine conviction.
Under these circumstances, we conclude that defendant's claim of sentencing error is forfeited. If there was a defect regarding any of the fines, fees, and/or penalties recommended by the probation officer and incorporated by reference by the trial court, it could have been corrected at the sentencing hearing. Defendant was on notice as to the fines, fees, and penalties recommended by the probation officer, and expressly agreed they could be imposed. Defendant does not claim that any of the fines, fees, or penalties could not be lawfully imposed under the circumstances of this case. Instead, defendant argues that his sentence was imposed in a procedurally flawed manner. Accordingly, because defendant failed to object in the trial court, his claim is forfeited. (Scott, supra, 9 Cal.4th at p. 354 ["claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner"].)
We reject defendant's contention that the sentencing error in this case is "analogous to an unauthorized sentence." "As pertinent here, the 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]" (Scott, supra, 9 Cal.4th at p. 354.) "Although the cases are varied, a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) As noted above, defendant does not argue that her sentence could not be lawfully imposed under the circumstances of this case.
In any event, defendant's argument fails on the merits. Even assuming that the court should have orally pronounced the amounts of the fines, fees, and penalties, the error is subject to review under the harmless error standard. (See People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685-1687.) Reversal is required only when the reviewing court, after careful examination of the entire case, is of the opinion that there is a reasonable probability that a result more favorable to appellant would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, defendant does not challenge the lawfulness of any fine, fee, or penalty imposed by the trial court. Nor is there any evidence suggesting the outcome below would have been different had the trial court orally pronounced the fines, fees, and penalties rather than incorporating them by reference to the probation order. On this record, we conclude it is not reasonably probable defendant would have received a more favorable result had the error not occurred. Accordingly, remand for resentencing is not warranted.
See People v. High (2004) 119 Cal.App.4th 1192, 1200 ["Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts"]; see also People v. Eddards (2008) 162 Cal.App.4th 712, 717-718.)
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: BLEASE, Acting P. J. RENNER, J.