Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LA 052158. Kathryne Ann Stoltz, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury convicted Flavio Fuentes of possessing methamphetamine for sale. (Health & Saf. Code, § 11378; all further undesignated section references are to the Health & Safety Code.) In a bifurcated hearing after a jury waiver, the court found that Fuentes had two drug-related prior felony convictions. (§ 11370.2, subd. (c).) The court imposed an aggregate 8-year sentence: a 2-year middle term enhanced by two consecutive 3-year terms for the prior convictions.
Fuentes timely appealed, contending that (I) his trial counsel was ineffective for failing to object to hearsay statements made inadmissible by Crawford v. Washington (2004) 541 U.S. 36; and (II) he is entitled to one additional day of presentence credit (the Attorney General concedes this issue). We reject contention (I) but agree with contention (II), modify the judgment to award Fuentes one additional day of credit, and in all other respects affirm the judgment.
FACTS
About noon on April 14, 2006, plainclothes Los Angeles Police Officers Noreen Herbert and Rafael Lopez parked their unmarked car near a Van Nuys intersection known for drug dealing. The officers were responding to a complaint that a particular man was selling drugs in that area. They saw Fuentes, who matched the description of the drug dealer, standing on the sidewalk. They watched him for about 45 minutes, during which he walked back and forth, looked and waved at passing cars, spoke on a cellular telephone several times, and spoke briefly with one man. Because of passing traffic the officers could not see whether Fuentes exchanged anything with anyone.
The officers approached Fuentes and identified themselves as police officers. In response, Fuentes discarded a small bindle containing 0.29 grams of methamphetamine. As the officers tried to handcuff Fuentes, he broke away and ran a short distance before they apprehended him. The officers recovered the discarded bindle, searched Fuentes, and discovered three more bindles containing 0.16, 0.22, and 14.01 grams of methamphetamine, a bag of marijuana, $1,227 in cash, including 49 two-dollar bills, and Fuentes’ cellular telephone, which rang continuously. Fuentes was not under the influence of any drug and possessed no paraphernalia for ingesting drugs.
The officers explained that drug dealers collect $2 bills because they consider them good luck.
At one point during the arrest, Lopez, who speaks Spanish, answered Fuentes’ telephone. Without objection, Lopez recounted the ensuing conversation: “[A] female voice in Spanish asked if I was Sinaloa. [¶] . . . [¶] I said, yes, that I was. [¶] . . . [¶] Then the female asked if I was going to be around . . . that area of the block, and I said, yes. And the female says that she was going to try to stop by later. I asked how much she needed, and she told me that she just needed a dime for herself.” Lopez explained that “a dime” is street vernacular “for ten dollars’ worth of narcotics.”
Fuentes was born in Sinaloa, Mexico.
Later, after waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Fuentes admitted “that he was a user, and that he was selling nickel[s] and dimes, which is street vernacular for $5 and $10 worth of narcotics. He was selling nickels and dimes to support his family.” The officers did not record the confession because the available recorders generally are reserved for homicide and other complicated cases.
Lopez and Herbert, drug experts, opined that, based on all this evidence, Fuentes possessed the methamphetamine for sale. The officers explained that the bindle containing 14.01 grams would sell for $300, that most users never possessed that much because they used all their money to buy small quantities of drugs, and that Fuentes most likely would divide that amount into bindles containing similar quantities to the smaller bindles found on him, each of which contained a useable quantity of the drug, and sell the smaller bindles for a total of $1,000. Fuentes’ possession of multiple drug bindles and a large amount of cash, his movements on the street, lack of drug paraphernalia, sobriety, use of the cellular telephone to arrange sales, and confession all showed he possessed the drugs for sale.
Fuentes did not present a defense. After deliberating for 28 minutes, the jury convicted Fuentes of possessing methamphetamine for sale. At the October 23, 2006 sentencing, the parties and court agreed that Fuentes had been in custody since his April 14, 2006 arrest and was entitled to 192 days of actual credit and 96 days of good time/work time credit for a total of 288 days of presentence credits, which the court awarded.
DISCUSSION
I. Fuentes’ Trial Counsel Was Not Ineffective.
Fuentes contends that his trial counsel was ineffective for failing to object to Lopez’ recounting his telephone conversation with the woman on the grounds that it was inadmissible testimonial hearsay barred by Crawford v. Washington, supra, 541 U.S. 36. He argues that counsel could have had no tactical reason for failing to object, that the evidence was inadmissible, and that its admission prejudiced him. Because we conclude that admission of the evidence was harmless, we reject Fuentes’ ineffective assistance of counsel claim.
“‘It is established that reversal for ineffective assistance of counsel is generally unwarranted unless the defendant shows counsel’s alleged failings prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 693-694 . . .; [citations].)’ [Citation.]” (People v. Wright (1990) 52 Cal.3d 367, 404.)
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) “The defendant must show that 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.” (Id. at p. 694.)
There is a split in authority regarding whether telephone statements by declarants such as the woman with whom Lopez spoke are hearsay. (Compare People v. Ventura (1991) 1 Cal.App.4th 1515, 1517-1519 and People v. Nealy (1991) 228 Cal.App.3d 447, 451-452 [non-hearsay], with People v. Morgan (2005) 125 Cal.App.4th 935, 940-946 [hearsay].) Both lines of cases, however, find such evidence admissible, the first as non-hearsay, the second as an exception to the hearsay rule.
Regarding the Crawford issue, People v. Morgan, supra, 125 Cal.App.4th at pages 946-947 found similar statements admissible as non-testimonial under Crawford. Fuentes argues that Morgan is distinguishable on its facts and incorrectly analyzed the Crawford issue. (Related issues currently are pending before the Supreme Court in People v. Wahlert (2005) 130 Cal.App.4th 709, review granted Sept. 28, 2005, S135805, and People v. Kilday (2004) 123 Cal.App.4th 406, review granted Jan. 19, 2005, S129567.)
We need not resolve these issues, however, because we conclude that even if the evidence was wrongly admitted, any error in doing so was harmless beyond a reasonable doubt. (Davis v. Washington (2006) 547 U.S. ___ [165 L.Ed.2d 224, 241]; People v. Cage (2007) 40 Cal.4th 965, 991 [erroneous admission of Crawford-violative statements reviewed under Chapman v. California (1967) 386 U.S. 18 harmless-beyond-a-reasonable-doubt standard].) The evidence in this case was overwhelming and uncontraverted. Police watched Fuentes, who matched the description of a reported drug dealer in an area known for drug dealing, walk up and down, wave at passing cars, talk on a cellular telephone, and speak quickly to people. He possessed several bindles of drugs, a large amount of cash, no paraphernalia for ingesting drugs, and was not under the influence. He tried to flee from the police, and after his arrest confessed to possessing the drugs for sale. Fuentes presented no defense and failed to controvert any of this evidence. The jury took less than 30 minutes to convict Fuentes. Even if the evidence of Lopez’ telephone conversation with the woman was wrongly admitted, that error was harmless beyond a reasonable doubt. Because Fuentes was not prejudiced by any error, we reject his claim that his trial counsel was ineffective for failing to object and preserve the issue.
II. Fuentes is Entitled to One Additional Day of Presentence Credit.
We agree with the parties that Fuentes was entitled to 193 rather than 192 days of actual presentence custody credit for his incarceration from his April 14, 2006 arrest through his October 23, 2006 sentencing (Pen. Code, §§ 2900.5, subd. (a), 4019; People v. Lopez (1991) 11 Cal.App.4th 1115, 1124; People v. Browning (1991) 233 Cal.App.3d 1410, 1412), and that he may raise the issue on appeal despite not having done so below. (People v. Jones (2000) 82 Cal.App.4th 485, 493.) We modify the judgment to award Fuentes 193 days of actual presentence custody credit and remand the case for the trial court to prepare an amended abstract of judgment so stating and to forward a copy to the Department of Corrections.
DISPOSITION
The order awarding Fuentes 192 days of actual presentence custody credit is reversed, and the judgment is modified to award him 193 days of such credit. The case is remanded for the trial court to prepare an amended abstract of judgment so stating and to forward a copy to the Department of Corrections. In all other respects the judgment is affirmed.
We concur: MALLANO, Acting P.J., VOGEL J.