Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Del Norte County Super. Ct. No. 05-5040; 02-5028
Sepulveda, J.
Defendant Ricky Cruz was found guilty by jury trial of one count of transporting methamphetamine from one county to a noncontiguous county (Health & Saf. Code, § 11379, subd. (a)), three counts of attempted unauthorized possession of drugs in prison (Pen. Code, §§ 644, 4573.8), and one count of unauthorized possession of a hypodermic syringe (Pen. Code, § 4573.6). The trial court found eight strike priors within the meaning of Penal Code sections 1170.12 and 667, subdivision (b) through subdivision (i), to be true. Defendant was sentenced to a total of 12 years, 4 months in state prison and appeals from the final judgment of conviction.
At trial, both parties stipulated that at all relevant times defendant was an inmate lawfully confined at Pelican Bay State Prison.
The sentence included a one-year subordinate term on docket no. 02-5028; the trial court was required to resentence defendant on that docket as he was serving a sentence in state prison on that docket at the time of sentencing on docket no. 05-5040. (See California Rules of Court, Rule 4.452.)
BACKGROUND
According to witnesses who testified at trial, in September 2002, an evidence control officer at Pelican Bay State Prison inspected an envelope addressed to defendant. The envelope, bearing a return address containing the number 13, contained five postcards and two letters. The postcards had a rough texture and a printed postage stamp that had bled through from being wet. The officer conducted a presumptive field narcotic test that indicated a positive result for methamphetamine on the postcards. He subsequently sent the postcards to the Department of Justice laboratory in Eureka for further analysis. In January 2003, letters written by defendant were inspected and found to mention methamphetamine, in conjunction with food coloring, and five cards that had been intercepted. On March 11, 2003, officers searching property in defendant’s cell found an inmate-manufactured hypodermic syringe sewn into the crotch of a pair of pants, and an additional needle elsewhere in defendant’s property.
At trial, testimony was given that the number 13 in a return address signals the presence of drugs in the letter or package.
In September 2003, another correctional officer intercepted what appeared to be a child’s drawing, addressed to defendant as “Uncle Ricky,” dated September 5, 2003, which contained a “thick layer” of a dried substance camouflaged with food coloring. Results of a narcotic identification field test showed the substance on the drawing to be methamphetamine. The drawing was sent to the Department of Justice for further analysis. Another similarly prepared drawing sent to defendant, dated September 10, 2003, field tested positive for methamphetamine, and was sent to the Department of Justice laboratory. The envelopes containing the drawings each had a return address containing the number 13.
In late September 2003, defendant exchanged letters with a woman, in which he mentioned that he liked lemon Kool-Aid. She responded that “the boys” would mail the package soon. On October 28, 2003, a package arrived for defendant, again with a return address containing the number 13. Correctional personnel intercepted and searched the package, which contained food items and a container of lemon-lime Gatorade. The seal on the Gatorade container had been tampered with. After presumptive field testing showed that the container held a substance containing methamphetamine, the container was sent to the Department of Justice for further analysis. In conjunction with the package, defendant received a letter from the same sender containing a postage mailing receipt dated October 25, 2003, that matched the documentation on the package.
Results of tests conducted by the Department of Justice showed that all five postcards screened positive for methamphetamine, and two of the postcards subjected to further analysis confirmed its presence. Both drawings tested positive for methamphetamine. The 456 grams of substance inside the Gatorade container were found to contain approximately 20 grams of methamphetamine.
Defendant was charged by information with one count of transportation of methamphetamine from one county to another noncontiguous county (Health & Saf. Code, § 11379, subd. (b)—count 1), one count of soliciting commission of a felony (Pen. Code, § 653f, subd. (d)—count 2), two counts of attempted possession of methamphetamine for sale (Pen. Code, § 664, Health & Saf. Code, § 11378—counts 3 and 8), three counts of attempted possession of methamphetamine in prison (Pen. Code, §§ 664, 4573.8—counts 4, 6, and 9), and possession of drug paraphernalia in prison (Pen. Code, § 4573.6—count 7). The information further alleged eight strike priors within the meaning of Penal Code sections 1170.12 and 667, subdivision (b) through subdivision (i).
Although unclear from the record, it appears that the charge in count 1 was amended from Health & Saf. Code section 11379, subdivision (b), to section 11379, subdivision (a).
The matter proceeded to jury trial, and defendant was found guilty of counts 1, 4, 6, 7, and 9. Defendant waived jury trial on the eight alleged strike priors; the trial court found the priors to be true. Defendant was sentenced to twelve years, four months in state prison. This sentence included a one-year consecutive subordinate term on docket no. 02-5028. Defendant had to be resentenced on that docket as he was already serving a term in prison as a result of that conviction.
Prior to the start of evidence, the trial court dismissed counts 2, 3, 5, and 8, upon motion of the prosecution. Although the information and jury verdict forms indicate that counts 4, 6, and 9 alleged violations of Penal Code, sections 664, 4573.8 (as does the probation report), in sentencing defendant the trial court referenced sections 664, 4573.5 for each of these convictions. The abstract of judgment similarly indicates that defendant was sentenced for convictions of sections 664, 4573.5. Neither party offers any explanation for this inconsistency. The sentence for each section is, however, the same. The court’s calculation of a consecutive term for each attempted violation, one-third the midterm or four months, doubled to eight months due to the strike prior, was thus correct.
Apparently, based upon the probation department’s recommendation, and without opposition from the district attorney, the trial court struck all but one of defendant’s strikes, pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. This occurred after the court finished sentencing defendant, and only after the district attorney brought the issue to the court’s attention, as the court apparently “forgot” that it had found eight prior strike conviction allegations true in a bench trial two months earlier. The minute order does not reflect the trial judge’s reasons for striking the strikes, stating only that the other strikes “are to be stricken,” which does not comply with the specific requirements of Penal Code section 1385. This alone would be reason to reverse the trial court’s order, had the prosecution appealed from it. Additionally, the reasons for striking the allegations set forth on the record by the trial judge were wholly insufficient. The only stated reason for the exercise of the court’s discretion pursuant to section 1385 was the trial judge’s statement, “this was a bad thing he did but I don’t think it merits a 25-year-to-life sentence . . . . Because I do think that a 25-to-life sentence would be excessive.” A dismissal under section 1385 “ ‘ “in furtherance of justice” ’ ” requires consideration of both the constitutional rights of the defendant and the interest of society represented by the prosecution. (Romero, supra, 13 Cal.4th at p. 530.) Given the public safety considerations underlying the three strikes law, the record must reflect a “thoughtful and conscientious assessment” of and “intensely fact-bound inquiry” into all relevant factors, including the defendant’s criminal history and public safety, in light of the fact that “the present violation of law only triggers the mandated penalty, which ultimately is the consequence of both that offense and the defendant’s recidivist status.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979-982, italics omitted.) Again, had the prosecution appealed this issue, the lack of stated reasons would have warranted reversal of the court’s order. However, given the prosecution’s lack of objection at the trial court level and apparent continued lack of opposition on appeal, we will not disturb the trial court’s order striking seven of defendant’s eight prior strike convictions.
Defendant was convicted of battery on a correctional officer (Pen. Code, § 69), and possession of drugs or alcohol in prison (Pen. Code, § 4573.8) on docket no. 02-5028.
Defendant timely appealed. The notice of appeal was amended to include the previous case, docket no. 02-5028, presumably due to the fact that defendant was resentenced on that docket. No issues are raised on appeal regarding the judgment in that docket.
Defendant does raise an evidentiary issue in his appeal on docket no. 05-5040, which relates to the trial court permitting the prosecutor to question a witness regarding this prior conviction.
DISCUSSION
A. Sufficiency of Evidence Re: Transportation and Attempted Possession of Methamphetamine.
Defendant first contends that there was insufficient evidence presented to support his conviction of transportation of methamphetamine and attempted unauthorized possession of methamphetamine in prison. We disagree.
Count 1 (transportation of methamphetamine) was factually based upon the Gatorade importation. One count of attempted possession in prison was also based upon this incident (count 4). The other two counts of attempted possession in prison were based upon the methamphetamine-laced drawings (count 6) and the methamphetamine-laced postcards (count 9) which were sent to defendant.
We of course evaluate the entire record in the light most favorable to the judgment and determine if it is supported by substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.) We do not reevaluate the credibility of the witnesses, nor do we reweigh the strengths of their expert opinion; we must draw all reasonable inferences, and resolve all conflicts in the evidence, in favor of the judgment. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.) When reviewing a claim of insufficiency of the evidence, we apply the following standard: “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 139.) The evidence must be “ ‘reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Ibid.) We further presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (Ibid.) This same standard applies whether the prosecution’s case is based upon direct or circumstantial evidence. “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” (Ibid.) Reversal is not warranted unless there is insufficient evidence to support the conviction upon any hypothesis. (People v. Hughes (2002) 27 Cal.4th 287, 370.)
Transportation of a controlled substance requires proof that the defendant carried or conveyed a usable quantity of the substance. (People v. Ormiston (2003) 105 Cal.App.4th 676, 682.) In order to be convicted of either transportation of methamphetamine or its possession, the defendant must have knowledge of its presence and character. (See People v. Williams (1971) 5 Cal.3d 211, 215; People v. Showers (1968) 68 Cal.2d 639, 642-643.) These elements can be established by circumstantial evidence and any reasonable inferences drawn from that evidence. (Williams, supra, 5 Cal.3d at p. 215; People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) In addition to a general challenge to the sufficiency of the evidence linking him to the transportation of methamphetamine, defendant specifically focuses on the sufficiency of the evidence concerning defendant’s knowledge of the presence of the methamphetamine, a required element of each of these offenses.
Sufficient evidence supports defendant’s convictions here. As to the transportation count, defendant’s liability was as an aider and abettor. In order to be liable as an aider and abettor, the defendant must aid the perpetrator in the commission of the offense, with knowledge of the perpetrator’s unlawful purpose and with the intent that the offense be committed. (People v. Morante (1999) 20 Cal.4th 403, 433.) A person is liable as an aider and abettor if he aids, encourages, or facilitates the commission of the offense intentionally, even though he does not personally engage in all of the required elements of the crime. (Ibid.) With regard to the shipment of the container of Gatorade (underlying the charge of transportation of methamphetamine), the defendant in the present case submitted two prison package forms that included the sender’s address. The return address contained the number 13, which (according to the testimony of an inmate, Larry Caballero) was a coded request for contraband. The package slip that was completed by defendant had a return address of Los Angeles and the postal receipt for the package was mailed from the same location as was the package. Before the package was received, defendant exchanged letters with a woman, Ms. Ayala, requesting a lemon-lime drink, indicating that he was anxious to receive the delivery of this item. When defendant realized the package might have been lost, he requested an interview with prison staff to ascertain the status of the package. The criminalist testified that the mixture in the package contained a useable amount of methamphetamine. Prisoner Caballero had “held” methamphetamine for defendant “a couple of times” in the past, and gave defendant his package allocation at defendant’s request; he provided the package to defendant when it arrived. Caballero indicated that defendant had previously requested packages containing contraband. There was thus ample evidence that defendant aided and encouraged the transportation of methamphetamine, with knowledge of its presence and character; the charge of transportation of methamphetamine (on an aiding and abetting theory) was supported by sufficient evidence.
As to the charges of attempted possession of methamphetamine in prison (based upon the letters and drawings containing methamphetamine, as well as the Gatorade container), the prosecution was required to prove the following elements: that defendant attempted to possess a controlled substance (methamphetamine) in a penal institution, that he knew of its presence, that he knew of its character as a controlled substance, and that the methamphetamine was a useable amount. (CALCRIM No. 2748.) Attempt requires proof of two elements: “a specific intent to commit the crime and a direct but ineffectual act done toward its commission.” (People v. Medina (2007) 41 Cal.4th 685, 694.) In the present case, evidence was presented that five postcards and two drawings containing methamphetamine were mailed to defendant. Each item had a return address with the number “13” imbedded in it; that number is associated with a request for contraband. Correctional Officer Jim Dagenaes testified that defendant was a prolific writer, and wrote many letters to people on the outside, in which he would mention methamphetamine and cards. In a letter written in January of 2003, defendant mentioned five cards that had been seized; the letter also mentioned food coloring. Food coloring was used in the drawings that contained methamphetamine. Defendant wrote other letters in this time period after the interception of the cards and drawings, referencing methamphetamine and the cards. Additionally, evidence was introduced that prison authorities had previously found an inmate-manufactured syringe in defendant’s property.
Again, ample evidence supports defendant’s conviction on these counts. Defendant was receiving mail which had been infused with methamphetamine. Defendant’s correspondence references these items of contraband, as well as discussing his affinity for lemon-lime beverages. Caballero’s testimony regarding assisting defendant in the past in holding methamphetamine and in getting it shipped into prison, along with the discovery of drug paraphernalia in defendant’s property in the past, is circumstantial evidence supporting a reasonable inference that defendant not only knew that the cards and drawings containing methamphetamine were being sent to him, but also that he took steps towards possessing the drug in prison. Defendant’s conduct in soliciting the shipment of the methamphetamine-laced Gatorade also supports the inference that he was attempting to have drugs sent to him in state prison.
Defendant also focuses on the lack of expert testimony regarding whether the cards and drawings contained a useable amount of methamphetamine. The existence of a useable amount may, of course, be proven by circumstantial evidence. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Here there was such evidence: the fact that defendant had multiple cards and drawings sent to him, with the number 13 imbedded in their return addresses, as well as his scheme to have the methamphetamine-laced Gatorade sent to him, his prior possession of paraphernalia, and Caballero’s testimony regarding defendant’s attempts to get methamphetamine into prison, all support a reasonable inference that defendant was a user of methamphetamine who was trying to meet his needs by having methamphetamine sent to him through the mail. One could reasonably infer that defendant would not run the risk of having items containing methamphetamine sent to him in prison unless it was an amount that would be useful to him. Further, Officer Dagenaes testified that one of the drawings (the September 5 drawing) had a “thick layer” of methamphetamine on it, and that methamphetamine was found under all of the colors on the drawing. As to the September 10 drawing, he testified that there was a big star, occupying a large portion of the paper, with methamphetamine under all of the colors. As to the postcards, there were five in total and each provided sufficient methamphetamine to be tested by the Department of Justice. Considering all of this evidence, there was sufficient circumstantial evidence that defendant attempted to possess a useable quantity of methamphetamine in a penal institution.
While all of these circumstances might be susceptible to an interpretation other than one supporting the elements of the charged offenses, that does not warrant reversal. (People v. Catlin, supra, 26 Cal.4th at p. 139.) The circumstances reasonably justify the jury’s conclusion that the elements of the crimes had been proven beyond a reasonable doubt.
B. Posting Requirement.
Defendant argues that his convictions for Penal Code section 4573.8 (counts 4, 6, and 9 [attempted possession of methamphetamine in prison]) must be reversed because the state failed to present any evidence at trial regarding the statutory requirement that the prohibitions associated with the offense be posted outside of, and at the entrance to, the state prison grounds. In reviewing the sufficiency of evidence, the question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, italics in original; Cal. Const., art. I, § 15.) Defendant contends that posting of the prohibitions is an element of the offense, and that a finding of guilt unsupported by substantial evidence of that element constitutes reversible error.
In People v. Gutierrez (1997) 52 Cal.App.4th 380, 389, an appeal from conviction for violation of Penal Code section 4573.6, the court held that the section “neither makes posting an element of the crime, nor lack of posting a defense.” The court pointed out that the “provisions defining the substantive offense are in the first paragraph” of the section, while those requiring posting are in the second. (Gutierrez, supra, at p. 389.) Penal Code section 4573.8 is similarly structured.
Both Penal Code sections 4573.6 and 4573.8 include an identical posting requirement: “The prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities under the jurisdiction of, or operated by, the state or any city, county, or city and county.”
The court must ascertain the intent of the Legislature in construing a statute. If no ambiguity exists in the language of the statute, the plain meaning of the language governs. (People v. Coronado (1995) 12 Cal.4th 145, 151.) The Gutierrez court found that the legislative history of Penal Code section 4573.6 reinforced the conclusion that posting is not an element of the offense. (People v. Gutierrez, supra, 52 Cal.App.4th at p. 389.) In 1990, the Legislature added the posting requirement not only to Penal Code section 4573.6, but also to each of the other sections dealing generally with bringing, sending, or having drugs in prison or jail. (Stats. 1990, ch. 1580, §§ 2-4, pp. 7554-7555.). Section 4573.8, at issue in the instant case, was added in 1990 and contained the posting requirement from its inception. (Stats. 1990, ch. 1580, § 5, p. 7556.) The Gutierrez court observed that the statutes were to be construed together. (Gutierrez, supra, 52 Cal.App.4th at p. 386.)
Penal Code sections 4573, 4573.5, and 4573.6 were amended in 1990 to include the posting requirement. (Stats. 1990, Ch. 1580, § 2-4, pp. 7554-7556.) Sections 4573.8 and 4573.9 were added in 1990, and included the posting requirement from their onset. (Stats. 1990, ch. 1580, §§ 5-6, pp. 7556-7557.)
The Gutierrez court took judicial notice of pertinent legislative history materials, which indicated that the Legislature was particularly concerned that drugs were being brought into prisons by both visitors and correctional personnel, and concluded that “the posting requirement was not intended to alter the substantive elements of the offense (and particularly not in a way that would make it harder to prove), but rather to provide an additional deterrent.” (People v. Gutierrez, supra, 52 Cal.App.4th at p. 389.) (See also People v. Cardenas (1997) 53 Cal.App.4th 240, 246 [notification posted outside of the detention facility is meant for visitors, not inmates].)
We are unpersuaded by defendant’s argument that posting is an integral part of Penal Code section 4573.8, distinguishing it from section 4573.6, in which the posting requirement was added by amendment. The legislative history does not support this conclusion. (People v. Gutierrez, supra, 52 Cal.App.4th at p. 389.) Furthermore, the Legislature has clearly made posting a distinct element in other statutes. (E.g., Pen. Code, §§ 553-555 [making it a crime to trespass on “ ‘posted property,’ ” defined as property with signs prohibiting trespassing, § 647e [making it a crime to possess open container of alcohol on “posted premises” of liquor store, defined as premises “ ‘on which clearly visible notices’ ” prohibit possession].) (Id. at pp. 389-390.) The elements of Penal Code section 4573.8, specifically detailed in the first paragraph of the statute, proscribe the acts of the person inside the prison. Had the Legislature intended posting to be an element of the offense, it would have so indicated. Posting is not an element, nor is it a predicate to an inmate “knowingly” possessing drugs in prison. (Pen. Code, § 4573.8.)
The Gutierrez court rejected the defendant’s position that the prosecution had the burden of proving posting in order to demonstrate that the defendant knowingly possessed the drugs in prison in violation of the law (People v. Gutierrez, supra, 52 Cal.App.4th at p. 389 citing People v. Mills (1992) 6 Cal.App.4th 1278, 1291) for the proposition that ignorance of the law is no excuse. We agree with that analysis.
C. Admission of Penal Code section 4573.8 Prior Conviction.
Defendant argues on appeal that the trial court erred in admitting evidence of his prior conviction of Penal Code section 4573.8, and that the prior conviction was mischaracterized by the prosecution and the trial court. The evidence was admitted to impeach a witness’s testimony that defendant had no drug priors.
The prosecution has the right on cross-examination to test a topic raised by a defendant during direct examination. (People v. Wharton (1991) 53 Cal.3d 522, 595.) Here, the defense called as a witness the court investigating officer, who liaised between the trial court and Pelican Bay State Prison, to testify concerning defendant’s previous prison disciplinary records, ostensibly to establish that defendant had no prior drug charges. The officer testified that there were none. Cross-examination by the prosecutor revealed that defendant had in fact suffered a prior conviction of Penal Code section 4573.8 [possession of drugs or alcohol in prison], and produced the abstract of judgment from that docket. Defendant contends that the erroneously admitted evidence “destroyed [his] defense.”
This conviction arises from docket no. 02-5028, which was added to this appeal by amendment of the notice of appeal. (See p. 5, ante.) Defendant claims on appeal that he “never pled guilty to a section 4573.8 violation” on that docket. Defendant indeed pleaded guilty to a violation of Penal Code section 4573.6 on that docket, but the parties subsequently agreed that the charge should have been a violation of section 4573.8. The district attorney amended the charging document to so reflect and the parties stipulated that the conviction should have been of section 4573.8. Although the court never formally took defendant’s plea to the amended charge, defendant cannot raise the legality of his underlying conviction on that docket, as the time to appeal from the underlying conviction has long ago passed. (Cal. Rules of Court, rule 8.308.) The amendment of the notice of appeal to include this docket was presumably for the sole purpose of permitting defendant to challenge any error in the court’s resentencing on that docket. We therefore understand defendant’s argument in this regard not as a challenge to his conviction on docket no. 02-5028, but rather as an additional basis for his argument that the evidence of this conviction should not have been admitted at his trial on docket no. 05-5040.
The legal basis of defendant’s argument is unclear. Defendant appears to argue that the admission of the prior conviction was unduly prejudicial and might have confused the jury, especially as weighed against its limited probative value. If so, this would properly be characterized as an argument that the evidence should have been excluded pursuant to Evidence Code section 352. Indeed, the Attorney General addresses the matter as a section 352 issue.
Defendant does not, however, characterize the argument as one pursuant to Evidence Code section 352, perhaps due to the fact that he failed to object on that ground in lower court. Having not objected on that ground below, defendant has failed to preserve the issue for appeal. (Evid. Code, § 353, subd. (a); People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014 (1985) cert. den. 514 U.S. 1015 [issue not preserved for review under section 352 where defense counsel’s objection was insufficient to alert trial court that this section was being invoked].)
Defense counsel below offered no specific legal grounds for her objection to the introduction of the impeachment evidence, other than a lack of notice or discovery. During a bench conference on the matter, defense counsel stated that her “only objection is that [she] didn’t know about it [the abstract of judgment].” We conclude that the objection was not made on Evidence Code section 352 grounds.
Although not specifically characterized as an Evidence Code section 352 issue, defendant argues on appeal that the prior conviction of section 4573.8 involved “pruno,” a prisoner-brewed alcoholic beverage, rather than drugs, and that the trial court’s failure to clarify this point misled the jury and fatally prejudiced his case. The trial court afforded defendant the opportunity to examine the court officer as to whether a violation of Penal Code section 4573.8 could be based upon a prisoner possessing an alcoholic beverage such as “pruno.” For additional clarification, the trial court read Penal Code section 4573.8 aloud to the jury, and noted that defendant’s prior conviction involved “being in prison and being in possession of either drugs, drug paraphernalia, or alcohol.” (Italics added.)
Penal Code section 4573.8 provides in pertinent part that it is a felony for anyone in prison to knowingly possess “drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs, or alcoholic beverages, without being authorized.” (Italics added.) The presence of the comma after “drugs” affects the construction of the statute. On redirect, the court investigator was asked to look at the statute and to testify as to whether section 4573.8 violations include possession of alcoholic beverages. His response was that he “could answer that with [his] interpretation of what [he] just read, no.” In fact, possession of alcoholic beverages is one of several possible bases of a violation of section 4573.8. Despite the potential for misleading the jury, we find that the investigator’s statement does not, under the circumstances of this case, create a substantial danger of undue prejudice.
Even if a cognizable objection had been made below, however, and assuming the admission of evidence regarding the prior conviction was error, it would not necessitate reversal on appeal. Reversal would be called for only if “it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
We find no reasonable probability of an outcome more favorable to defendant absent admission of his prior conviction for violation of Penal Code section 4573.8. (People v. Watson, supra, 46 Cal.2d at p. 836.) As detailed ante, the evidence adduced at trial on the current charges supports the conclusion that defendant was linked to the delivery of usable quantities of methamphetamine into prison, which arrived addressed to him in the form of drawings and postcards crusted with methamphetamine, as well as a Gatorade container containing a methamphetamine mixture. Letters sent by defendant to persons outside of Pelican Bay State Prison referred to drugs and alluded to the same methods that were used to smuggle the contraband into the prison, and package forms completed by defendant tied him to the Gatorade container. The discovery of an unauthorized inmate-manufactured syringe hidden in defendant’s clothing is strong circumstantial evidence connecting him to illicit drug activities. Finally, inmate Caballero’s testimony, that defendant had previously requested packages of contraband, and that he had held methamphetamine for defendant in the past, also supports defendant’s convictions. Even if erroneous, we find that admission of the prior conviction for violation of Penal Code section 4573.8 fails to meet the Watson standard for reversal. (Watson, supra, 46 Cal.2d at p. 836.)
D. Ineffective Assistance of Counsel.
Defendant argues that defense counsel’s failure to fully investigate defendant’s prior conviction of Penal Code section 4573.8 compels reversal of his convictions on the basis of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668.) We disagree.
The test for ineffective assistance of counsel is two-pronged, and the burden of proof rests entirely on defendant. First, defendant must show that counsel’s performance was so deficient that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. (Strickland v. Washington, supra, 466 U.S. at p. 687.) To meet this burden, defendant must demonstrate that counsel’s performance fell below an objective standard of reasonableness. (Id. at p. 688.) We review counsel’s performance with a high degree of deference. (Id. at p. 689.)
The second prong of the Strickland test requires that defendant affirmatively prove prejudice, showing that but for counsel’s serious errors, there is a reasonable probability that the outcome would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694.) However, “[i]n any case, when considering a claim of ineffective assistance of counsel, a ‘court need not 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.’ ([Id. at p.] 697.) A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ People v. Williams (1988) 44 Cal.3d 883, 937, quoting People v. Stephenson (1974) 10 Cal.3d 652, 661.)” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Without considering the performance of defendant’s trial counsel, we conclude that defendant has failed to demonstrate prejudice. As detailed above, the evidence in this case supporting defendant’s convictions is so compelling that counsel’s putative failure to reasonably represent her client on the matter of the prior conviction of Penal Code section 4573.8 would not have changed the outcome. Consequently, no prejudice was suffered by defendant, and his claim of deprivation of the right to effective assistance of counsel must fail.
E. Cumulative Error.
Finally, defendant argues that the cumulative effect of all alleged errors requires reversal. Having rejected without reservation all of defendant’s arguments save for the issue of the admission of his Penal Code section 4573.8 prior, and having found any error in that regard to be harmless, we find no merit in defendant’s cumulative error argument.
DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.