Opinion
B165183.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. RALPH JAMES GOMEZ, JR., Defendant and Appellant.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Ralph James Gomez, Jr. appeals the judgment entered after conviction by jury of possession for sale of methamphetamine, possession of a controlled substance, transportation of a controlled substance and driving on a suspended license, a misdemeanor. (Health & Saf. Code, §§ 11378, 11350, subd. (a), 11352, subd. (a); Veh. Code, § 14601, subd. (a).) The trial court found Gomez had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b), and sentenced Gomez to a term of five years in state prison. We modify the judgment to conform to the trial courts oral pronouncement of judgment and, as so modified, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 15, 2002, at approximately 11:00 p.m. Glendale Police Officer Petros Kmbikyan saw Gomez enter the parking lot of the El Rio Motel driving a Buick Electra with an inoperable rear license plate light. Kmbikyan stopped the Buick and Gomez presented a California identification card. Kmbikyan checked the identification and found Gomezs drivers license was suspended for driving under the influence. Gomez gave Kmbikyan consent to search the Buick and, in the trunk, Kmbikyan found a glass pipe wrapped in plastic papers and a black bag Gomez said belonged to him. Inside the black bag was a Brut can with a false bottom containing zip-loc baggies of white powder, straws, a digital scale, and empty baggies. Kmbikyan recognized the white powder as methamphetamine.
Kmbikyan then asked if Gomez had a room at the motel. Gomez indicated he had registered that morning. Kmbikyan asked permission to search the room and Gomez replied, "You can do whatever you want. You can touch the room." A female answered the door of Gomezs room and invited the officers inside. Kmbikyan found approximately 15 grams of methamphetamine and a small amount of rock cocaine behind the air conditioner. En route to the police station, Gomez spontaneously stated all the items recovered in the Buick and the motel room belonged to him.
Following conviction by jury, the trial court sentenced Gomez to a term of four years for possession for sale of methamphetamine and imposed a one-year enhancement for the prior prison term.
CONTENTIONS
We appointed counsel to represent Gomez on this appeal. After examination of the record, counsel filed an opening brief in which no issues were raised and which requested this court to conduct an independent review of the record.
On September 12, 2003, after numerous extensions of time, Gomez filed a supplemental brief in which he contends: (1) the California Codes are not laws; (2) Gomez was not held to answer on the indictment of a grand jury in violation of the Fifth Amendment; (3) Penal Code section 6 prevents conviction; (4) Gomezs attorney-client work product was intercepted; (5) Gomezs pro per privileges were unfairly and improperly terminated by the jail authorities; (6) Gomez was not given Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436, 474 ); (7) Gomez was detained under an illegal parole hold which resulted in the denial of bail; (8) defense counsel rendered ineffective assistance and; (9) driving without a license is not an offense.
DISCUSSION
1. Gomez fails to establish ineffective assistance of counsel.
Gomezs contentions numbered 1 through 7 and 9 patently are frivolous. Accordingly, we decline to address these issues and reach the merits only of Gomezs assertion defense counsel rendered ineffective assistance.
Gomez bases this contention on defense counsels failure to subpena witnesses, failure to seek instruction on constructive possession, failure to file a notice of appeal and because counsel was suspended by the State Bar shortly after the trial in this case following counsels arrest for possession of cocaine and reckless driving.
To establish a claim of ineffective assistance of counsel, the accused must show that the attorneys deficient performance "fell below an objective standard of reasonableness" and that the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 ; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, the accused must show a reasonable probability — sufficient to undermine confidence in the outcome — that, but for the allegedly deficient performance, the result of the proceeding would have been different. (Stricklandv. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) A reviewing court may adjudicate a claim of ineffective assistance of counsel based on lack of prejudice without determining whether the attorneys performance was deficient. (Stricklandv. Washington, supra, at p. 697; People v. Ledesma, supra, at pp. 216-217, 233.)
Applying these principles in this case, Gomezs claims clearly are meritless. Gomez does not mention which witnesses defense counsel failed to call or how their testimony might have assisted Gomez. Contrary to Gomezs assertion, the trial court instructed the jury on actual and constructive possession in the words of CALJIC No. 12.00, which defines actual possession as knowing exercise of direct physical control over a thing and constructive possession as knowing exercise of control over or the right to control a thing, either directly or through another person or persons. In any event, Gomez admitted actual possession of the drugs involved in this case. The failure to file a notice of appeal obviously has not prejudiced Gomez in that his case presently is on appeal. Finally, defense counsels suspension following arrest for crimes of moral turpitude do not demonstrate that counsel was ineffective at Gomezs trial. Absent specific examples of conduct that might have caused Gomez prejudice, the claim fails. (People v. Lucas (1995) 12 Cal.4th 415, 436; People v. Wharton (1991) 53 Cal.3d 522, 575.)
2. Review of record by this court.
Review of the entire record reveals the abstract of judgment incorrectly states the term imposed as nine years in state prison. We shall order the abstract corrected to reflect the trial courts oral pronouncement of judgment, namely, four years for possession for sale of methamphetamine plus one year for a prior prison term.
In all other respects, we are satisfied Gomezs counsel has complied fully with counsels responsibilities. (People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is modified to reflect the trial courts oral pronouncement of judgment of five years in state prison consisting of four years for possession for sale of methamphetamine plus one year for a prior prison term. As so modified, the judgment is affirmed. The clerk of the superior court shall prepare and forward to the Department of Corrections an amended abstract of judgment.
We concur: KITCHING, J. and ALDRICH, J.