Opinion
F054886.
1-6-2009
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY KEITH HORN, Defendant and Appellant.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
A jury convicted appellant, Anthony Keith Horn, of transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)), possession of cocaine (Health & Saf. Code, § 11350 subd. (a)), misdemeanor evading a police officer (Veh. Code, § 2800.1, subd. (a)), misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364), misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)), and misdemeanor driving without a valid drivers license (Veh. Code, § 12500, subd. (a)). In a separate proceeding, Horn admitted allegations that he had two prior convictions within the meaning of the three strikes law.
On February 21, 2008, the court sentenced Horn to an indeterminate term of 25 years to life.
On appeal, Horn contends the court erred in admitting certain evidence. We will affirm.
FACTS
Hanford Police Officer Cory Mathews testified that on May 3, 2007, at approximately 4:00 p.m., he received a dispatch regarding a "wanted" subject. Mathews saw a Ford Expedition and driver that matched the description of the vehicle and driver described in the dispatch and made a U-turn. Mathews followed the Expedition and activated his overhead lights, alternating headlights, and siren but the Expedition continued traveling for approximately one-half mile before parking in a driveway.
Mathews got out of his patrol car and ordered the driver, Horn, out of the car. Horn got out and was taken to Mathewss patrol car where he was handcuffed and placed in the back seat. Mathews ordered the passenger, Nelson Lewis, out of the Expedition and took him into custody for officer safety reasons.
Mathews spoke with Horn and asked him why he did not stop. Horn replied that he got scared and drove to his fathers house because the Expedition belonged to his girlfriend and he did not want it to be towed. While Mathews spoke with Horn, Officer Dale Williams gave Mathews a plastic baggie containing a .11 grams of cocaine base that Williams found in the passengers cup holder that was molded into the Expeditions center console. Mathews looked in the car and found a crack pipe in the same location. When Mathews asked Horn about the cocaine base and pipe found in the Expedition, he admitted they belonged to him. Horn also stated that he was wanted by the police and did not want to go back to jail. A urine sample provided by Horn tested positive for cocaine.
Officer Stefanie Reese searched Lewis and found a crack pipe on him.
The Defense Case
Lewis testified he was Horns uncle. According to Lewis, after Horn stopped the car in the driveway, the police did not take him or Horn out of the car. Instead, Horn got out and walked up to the front door of his fathers residence. Lewis got out of the car and was immediately told by the officers to put his hands up. However, before getting out, Lewis put the cocaine base and one of two glass pipes he had that day in one of the cup holders in the center console. Lewis wanted to report to the police that the cocaine and pipe found in the console belonged to him, but he never did. Lewis was impeached with four convictions for resisting arrest.
Officer Mathews testified in rebuttal that Horn did not exit the car until Mathews ordered him out at gun point.
DISCUSSION
Horn contends he was denied the effective assistance of counsel by his defense counsels failure to move to exclude the evidence that he was a "wanted man" and had previously served jail time. He further contends this evidence prejudiced him with respect to the transportation of cocaine and possession of paraphernalia counts because it made the jury speculate what offense or offenses he committed that would cause the police to engage him in a vehicle pursuit. We will find that any error in admitting this evidence was harmless.
"`"The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof ... must be a demonstrable reality and not a speculative matter." [Citation.] [Citation.] There is a presumption the challenged action `"might be considered sound trial strategy" under the circumstances. [Citations.] On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsels challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 ... [`Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions."]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058, . . . [`"If the record sheds no light on why counsel acted or failed to act in the manner challenged, `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention [that counsel provided ineffective assistance] must be rejected."].) [¶] ... [¶]
"In considering a claim of ineffective assistance of counsel, it is not necessary to determine `"whether counsels 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." [Citation.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trials outcome; the defendant must demonstrate a `reasonable probability that absent the errors the result would have been different. [Citations.]" (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.)
Here, the defense did not rebut Officer Mathewss testimony that Horn admitted the cocaine and pipe found in the center console belonged to him. Further, Horns statement to Officer Mathews was corroborated by the analysis of his urine sample, which showed he was under the influence of cocaine when he was stopped, and Lewiss possession of a cocaine pipe which made it more likely that the one found in the console belonged to someone else, i.e., Horn.
In contrast, the only evidence presented by the defense to show that the cocaine and pipe found in the console did not belong to Horn was Lewiss testimony that these items belonged to him. However, Lewiss testimony was not persuasive because he did not claim ownership of the cocaine or the pipe found in the console the day Horn was arrested and he did not provide a satisfactory explanation for waiting until Horns trial to claim this contraband was his. Additionally, Lewiss testimony that Horn got out of the car and walked up to his fathers front door before Officer Mathews spoke with them was contradicted by Officer Mathewss testimony that he ordered both of them out of the car. The jury could also reasonably have found that Lewis was attempting to take responsibility for the cocaine and pipe found in the console to protect Horn because Horn was his nephew and that Lewis was biased against the police because he had several prior convictions for resisting arrest. Additionally, Lewis did not explain why he would carry two pipes and the defense did not explain why Horn would admit the cocaine and pipe found in the console belonged to him if they actually belonged to Lewis.
Moreover, "[t]ransporting a controlled substance in violation of Health and Safety Code section 11352, subdivision (a) occurs when a person moves contraband from one place to another. [Citation.]" (People v. Arndt (1999) 76 Cal.App.4th 387, 398.) Transportation does not require actual or constructive possession. (People v. Eastman (1993) 13 Cal.App.4th 668, 677.)
Here, the jury could reasonably have inferred that Horns admission that the cocaine and pipe found in the console were his, at minimum, indicated that Horn was aware of the presence of the cocaine found in his car. Thus, even if the jury believed Lewiss contention that he left the cocaine in the center console, this would not have prevented them from convicting Horn on the transportation of cocaine charge. Accordingly, in view of the strong evidence that Horn was guilty of transportation of cocaine and possession of drug paraphernalia, we conclude it is not reasonably probably Horn would have received a more favorable result even if the court had excluded evidence of his past criminality. We also reject Horns ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Wiseman, Acting P.J., Gomes, J., and Kane, J.