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People v. Gonzales

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 13, 2018
No. H044489 (Cal. Ct. App. Feb. 13, 2018)

Opinion

H044489

02-13-2018

THE PEOPLE, Plaintiff and Respondent, v. JOSE RAUL GONZALES, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161296A)

A jury convicted defendant Jose Raul Gonzales of knowingly possessing a controlled substance in a jail in violation of Penal Code section 4573.6, subdivision (a). Defendant admitted he had served a prior prison term (§ 667.5, subd. (b)) and had suffered three prior strike convictions (§ 1170.12, subd. (c)(1)). The trial court sentenced him to seven years in state prison.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant raises two claims of ineffective assistance of counsel. Neither has merit. We will affirm.

I. BACKGROUND

The Monterey County District Attorney charged defendant by amended information with bringing a controlled substance, heroin, into Monterey County Jail (§ 4573, subd. (a)) and with knowingly possessing a controlled substance, heroin, in Monterey County Jail (§ 4573.6, subd. (a)). The amended information further alleged a prior prison term enhancement (§ 667.5, subd. (b)) and that defendant had three prior strike convictions (§ 1170.12, subd. (c)(1)).

The case proceeded to a jury trial. Monterey County Sheriff's Deputy Dustin Hedberg testified that on June 1, 2016 he conducted a traffic stop of a vehicle suspected to have been involved in a burglary a week earlier. Defendant was in the front passenger seat of the vehicle. During a search of the vehicle, a syringe and the bottom portion of an aluminum can were found between the passenger seat and the center console. The can had a burnt brownish residue and a small piece of cotton swab in it. Hedberg testified that heroin can be injected using a syringe. To do so, the user heats the drug on something metallic, like a can, to the point of liquification and draws it into a syringe through cotton, which acts as a filter. He opined that the can and cotton swab found in the vehicle were consistent with heroin use by injection. The cotton swab weighed 0.2 grams, which Hedberg testified is a useable quantity of heroin.

Defendant was arrested for an outstanding warrant, violating his parole, and possession of a controlled substance. During a search incident to arrest, Hedberg found band-aids and cotton swabs in defendant's pocket.

Defendant was transported to Monterey County Jail. Deputy Cynthia Dorgan conducted a pat-down search as part of the intake process. She testified that defendant hunched over and turned away from her during the search. Because she considered his behavior suspicious, she lifted his shirt. She saw a black plastic baggie in his navel. The baggie contained 0.093 grams of heroin, a usable amount.

Defendant testified that he thought the heroin in his navel fell out when he raised his hands and exited the vehicle prior to the vehicle search. Because that was the only heroin he had, he assumed officers found it during the vehicle search and that was the reason for his arrest. He testified that he did not intend to bring heroin into the jail. On cross-examination, defendant admitted that he put the heroin in his navel when the vehicle was stopped by police because he "was on parole" and "didn't want to get caught" with drugs.

The jury found defendant not guilty of bringing heroin into the jail (§ 4573, subd. (a)), but guilty of possessing heroin in the jail (§ 4573.6, subd. (a)). Defendant admitted the prior prison term and prior strike allegations.

The court sentenced defendant to the middle term of three years for the section 4573.6, subdivision (a) violation, doubled by the strikes (§ 1170.12(c)(1)), plus a year for the section 667.5 prior prison term, for a total prison term of seven years. Defendant timely appealed.

II. DISCUSSION

A. Ineffective Assistance of Counsel for Failure to Move to Strike Inadmissible Evidence

Defendant argues the prosecutor committed prosecutorial misconduct by asking defendant about the facts of a prior conviction, which was introduced solely as impeachment evidence, in contravention of a court ruling. Because trial counsel did not object, defendant acknowledges that any prosecutorial misconduct claim has been forfeited. Rather than asserting such a claim, he contends trial counsel was ineffective because she failed to move to strike the prosecution's question and his response, which he says contained evidence ruled inadmissible by the trial court.

1. Factual Background

Before trial, the prosecutor moved to admit evidence of seven of defendant's prior convictions for purposes of impeachment if defendant testified. The court excluded evidence of three convictions, pursuant to Evidence Code section 352, and permitted the prosecution to impeach defendant with four other prior convictions, including one for attempting to conceal or destroy evidence. The court denied the prosecutor's request to ask defendant about the conduct underlying those convictions.

Defendant admitted to the four prior convictions on direct examination. On cross-examination, the prosecutor asked defendant about his prior convictions. As to the conviction for attempting to conceal or destroy evidence, the following exchange took place:

"[Prosecutor]: And, finally, in 2015, you committed—you tried to conceal or destroy evidence, right?

"[Defendant]: Uh, yes.

"[Prosecutor]: You tried to hide that evidence from law enforcement?

"[Defendant]: No.

"[Prosecutor]: You tried to conceal the evidence, correct?

"[Defendant]: No. I had it in my mouth, and I spit it out.

"[Defense Counsel]: I object, Your Honor, as to the details of the crime.

"[The Court]: All right. The answer remains. Next question.

"[Prosecutor]: But you did commit the offense of attempting to conceal or destroy evidence in 2015, right?

"[Defendant]: Oh, yes."

2. Legal Principles

"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "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, . . . that course should be followed." (Id. at p. 697.)

3. Analysis

The trial court effectively excluded evidence of the facts underlying defendant's prior convictions by denying the prosecutor's request to question defendant about the conduct giving rise to those convictions. We are not persuaded that the prosecutor's questions violated the court's order. However, defendant did volunteer evidence the trial court had ruled inadmissible, namely that he had evidence in his mouth, which he spit out. While defense counsel objected "as to the details of the crime," she did not cite to the court's earlier ruling or request that defendant's answer be stricken. Defendant contends those failures constituted ineffective assistance. Even assuming they did, defendant's claim fails because he cannot establish prejudice.

Defendant contends the exchange was prejudicial because "the jury heard [him] testify that he had concealed drugs in his mouth in order to evade detection by the police. The jurors could then infer that appellant had a propensity for concealing contraband from law enforcement." That theory suffers from multiple flaws. First, there was no testimony or other evidence that defendant's conviction for attempting to conceal or destroy evidence involved drugs. Second, jurors could have inferred that defendant was willing to hide evidence from police merely based on his admission to having been convicted of attempting to conceal or destroy evidence. Third, defendant admitted to concealing the heroin from law enforcement in this case, testifying that he put the heroin in his navel when the traffic stop occurred to avoid getting caught violating his parole. In view of that admission, defendant's fleeting reference to previously concealing evidence in his mouth likely had little impact on jurors. Finally, the jury was instructed with CALCRIM No. 316 as to the limited admissibility of the prior convictions. That instruction stated, in relevant part: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony." We presume the jury followed the instruction and did not rely on the prior convictions as propensity evidence. (People v. Little (2012) 206 Cal.App.4th 1364, 1381.) For the foregoing reasons, defendant fails to show a reasonable probability that the result of the proceeding would have been different had trial counsel successfully moved to strike the exchange regarding defendant's conviction for attempting to conceal or destroy evidence.

B. Ineffective Assistance of Counsel for Failure to Request Limiting Instruction Regarding the Use of Impeachment Priors

In his opening brief, defendant contends trial counsel was ineffective in failing to request an instruction limiting the jury to using evidence of his prior convictions for impeachment only. He contends that, absent such a limiting instruction, jurors may have improperly used the prior conviction evidence as propensity evidence. However, defendant concedes on reply that this claim has no merit given that the court instructed the jury with CALCRIM No. 316. As noted above, that instruction informed jurors to consider the fact of a witness's prior felony conviction "only in evaluating the credibility of the witness's testimony." Defendant's concession is well taken, as CALCRIM No. 316 properly limited the jury's use of the prior conviction evidence.

III. DISPOSITION

The judgment is affirmed.

/s/_________

ELIA, Acting P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.


Summaries of

People v. Gonzales

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 13, 2018
No. H044489 (Cal. Ct. App. Feb. 13, 2018)
Case details for

People v. Gonzales

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE RAUL GONZALES, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Feb 13, 2018

Citations

No. H044489 (Cal. Ct. App. Feb. 13, 2018)