Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 06CM7387. Louis F. Bissig, Judge.
Julia J. Spikes, 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 Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Julie M. Hyder was convicted after jury trial of conspiracy to possess a controlled substance in prison (count 1), transportation of heroin (count 3), possession of a controlled substance (count 4), transportation of methamphetamine (count 5), and possession of heroin and methamphetamine (count 6); the court found true two prior prison term enhancement allegations and a prior drug conviction enhancement allegation. (Pen. Code, §§ 182, subd. (a)(1), 4573.6 and 667.5, subd. (b); Health & Saf. Code, §§ 11352, subd. (a), 11350, subd. (a), 11379, subd. (a) and 11377, subd. (a).) She was sentenced to an aggregate term of 11 years’ imprisonment.
Henceforth, unless otherwise specified all statutory references are to the Penal Code.
Appellant raises three issues on appeal: (1) the punishment imposed on count 5 must be stayed pursuant to section 654; (2) the laboratory fee and associated penalty assessments that were imposed on counts 4 and 6 must be stayed because imposition of punishment on these counts was stayed pursuant to section 654; and (3) defense counsel was ineffective because he did not file a motion to change venue for counts 3 through 6. We agree with appellant that the punishment imposed for count 5 must be stayed pursuant to section 654. The Attorney General concedes that the laboratory fee and associated penalty assessments imposed on counts 4 and 6 must be stayed and we accept this concession as properly made. Appellant’s ineffective assistance claim fails on direct appeal. Accordingly, we will modify the judgment to stay imposition of the term imposed on count 5 and to stay the laboratory fee and associated penalty assessments imposed on counts 4, 5 and 6. As modified, we will affirm.
FACTS
Rachel Hernandez is appellant’s adult daughter. Arturo Guerro is Hernandez’s boyfriend. Guerro is an inmate at Corcoran State Prison (Corcoran). Correctional Sergeant Tony Gonzalez, who is an expert on “code talk,” listened to a series of nine telephone calls Guerro made to Hernandez during the period of May 17, 2006, to June 9, 2006. Several of these calls were “three-way” conversations in which appellant was the third participant. Gonzalez testified that during these conversations appellant, Hernandez and Guerro discussed a plan to smuggle drugs into Corcoran. Appellant was going to provide Hernandez with the drugs. Hernandez would smuggle them into Corcoran and pass them to Guerro.
Unless otherwise specified all dates refer to 2006.
A warrant was issued for Hernandez and she was searched shortly after arriving at Corcoran on June 11. Hernandez removed a balloon from her vaginal area that was later determined to contain heroin and methamphetamine. Hernandez told officers that appellant gave her the balloon shortly before entering Corcoran while they were at a McDonald’s restaurant.
On June 20, a search warrant was executed on appellant’s residence in Wilmington, which is located in Los Angeles County. Appellant arrived home during the execution of the warrant. She was escorted from her car to the bathroom, where she was searched. Appellant removed her skirt. Immediately thereafter, police officer Elise Meyer noticed that appellant’s hand was clenched in a fist. Appellant was holding five bindles that were individually wrapped in cellophane. Appellant told Meyer that the bindles contained heroin and methamphetamine. Toxicology reports subsequently confirmed that the bindles contained heroin and methamphetamine. There was a usable quantity of narcotics in each bindle.
DISCUSSION
I. The punishment imposed on count 5 must be stayed.
Appellant was convicted in count 3 of transporting heroin and in count 5 of transporting methamphetamine. Both of these offenses arose from the bindles of methamphetamine and cocaine appellant was clutching in one of her fists when she was searched on June 20. The unlawful transportation occurred when appellant drove home during the search of her residence and transported the drugs that were concealed on her person into the residence. Appellant was sentenced on count 3 to the midterm of four years’ imprisonment plus an additional five years’ imprisonment for enhancements that were attached to this count. Appellant was sentenced on count 5 to a consecutive term of one year imprisonment, which is one-third of the midterm for this offense.
Appellant asserts that defense counsel below argued that punishment imposed on count 5 should be stayed pursuant to section 654, “but the court denied the motion without explanation.” This is not accurate. Defense counsel did argue that section 654 applied to count 5. However, when the court responded, “That request is denied,” it was referring to defense counsel’s request for a continuance. The record does not contain an express ruling on defense counsel’s section 654 argument. Yet, this does not result in forfeiture of the issue because the waiver doctrine ordinarily does not apply to questions involving applicability of section 654. (People v. Hester (2000) 22 Cal.4th 290, 295.) In such cases, we review the record for substantial evidence to support implied findings sufficient to uphold the sentence under section 654. (See People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Section 654 prohibits imposition of multiple punishment where a defendant engages in conduct that violates more than one statute but which comprises an indivisible transaction. The court must determine whether the defendant acted pursuant to a single intent and objective. (People v. Perez (1979) 23 Cal.3d 545, 551-552.)
Relying on In re Adams (1975) 14 Cal.3d 629 (Adams), appellant argues that the punishment imposed on count 5 must be stayed pursuant to section 654 because counts 3 and 5 are based on an indivisible course of criminal conduct and appellant harbored a single criminal intent and objective. In Adams, defendant drove in a parking lot and transferred an attaché case and numerous plastic bags that were later determined to contain five different drugs into a codefendant’s car. He was convicted of selling Benzedrine and five counts of transporting controlled substances, one for each of the five different drugs he transferred to the codefendant’s car. Our Supreme Court concluded that section 654 precluded separate sentencing for each of the five transporting counts. It held “that where, as in the instant case, different kinds of drugs are simultaneously transported in one, indivisible transaction, with the single intent and objective of delivering them to another person, only one act of illegal transportation occurs.” (Id. at p. 632.) We agree with appellant that Adams is controlling. The record in this case does not support an implied finding of any intent beyond transporting the heroin and methamphetamine from appellant’s car into her home. Therefore, section 654 applies to counts 3 and 5.
The Attorney General argues that the record supports a finding that appellant intended to sell the drugs in multiple sales to different people. This contention is not persuasive. Appellant was not convicted of possessing the drugs for the purpose of sale. No indicia of drug sales such as pay and owe sheets or scales were found in her home. Also, she was holding all five bindles in one hand; the drugs were not hidden in different places in her car and she did not hide them in different places throughout her home. No trial testimony connected the individual packaging of the bindles with resale to multiple buyers. Correctional Officer Tony Gonzales merely testified that the bindles each contained a usable quantity of methamphetamine or heroin; he did not testify that the manner of packaging was consistent with sales to multiple buyers. There is no evidence linking the drugs found in appellant’s hand on June 20 to the earlier conspiracy to bring drugs into Corcoran. Thus, the trial evidence does not support a reasonable inference that appellant intended to sell the drugs to multiple buyers.
The Attorney General’s reliance on People v. Blake (1998) 68 Cal.App.4th 509 is misplaced because Blake is factually distinguishable. There, defendant was convicted of transporting marijuana and methamphetamine. The appellate court distinguished Adams, supra, 14 Cal.3d 629, and upheld imposition of separate punishment for the two transportation offenses because the record supported an implicit finding that defendant possessed separate objectives. The court explained that defendant’s car contained substantial evidence demonstrating that he was involved in the sale of illicit drugs to multiple buyers. For example, the drugs were found in different hidden compartments in his vehicle and they were packaged in a manner and an amount that is consistent with multiple individual sales. (Id. at pp. 511-512.) As previously explained, the record in this case does not contain evidence indicating that appellant transported the drugs found in her hand because she was a dealer who sold different drugs to multiple buyers.
Following and applying our Supreme Court’s holding in Adams, supra, 14 Cal.3d at page 632, we conclude that appellant’s transportation of the drugs into her home was one indivisible transaction with a single intent and objective. Therefore, the punishment imposed on count 5 must be stayed pursuant to section 654.
II. The laboratory fees and associated penalty assessments imposed on counts 4, 5 and 6 must be stayed pursuant to section 654.
The court ordered appellant to pay a laboratory fee of $50 on each count for counts 3 through 6. It also imposed a series of penalty assessments on each laboratory fee (associated penalty assessments). The court imposed a two-year term on count 4 and on count 6. Then it stayed imposition of these terms pursuant to section 654. However, it did not stay the laboratory fee and associated penalty assessments that were imposed on counts 4 and 6. Appellant argues that section 654 required the court to stay the laboratory fee and penalty assessments as well as the term of imprisonment on these counts. The Attorney General concedes the point and we accept the concession as properly made.
Section 654 has been interpreted broadly “to apply to any form of punishment under any provision of law.” (Ralph’s Grocery Co. v. Department of Food & Agriculture (2003) 110 Cal.App.4th 694, 701.) The laboratory fee and associated penalty assessments at issue are punishment. (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332 [laboratory fee imposed under Health & Saf. Code, § 11372.5 is a fine]; People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 [assessments pursuant to § 1464 and Gov. Code, § 76000 are described as penalties].) Therefore, when imposition of punishment on a count is stayed pursuant to section 654, the laboratory fee and associated penalty assessments that are attached to the count also must be stayed. Consequently, in this case the laboratory fee and associated penalty assessments imposed on count 4 and count 6 must be stayed. Additionally, because we concluded that section 654 requires the punishment imposed on count 5 to be stayed, the laboratory fee and associated penalty assessments imposed on count 5 also must be stayed.
III. Appellant’s claim that defense counsel was ineffective because he did not file a motion to change venue fails on direct appeal.
Appellant argues that the proper venue for counts 3 through 6 is Los Angeles County and that defense counsel was prejudicially ineffective because he did not file a motion to change venue prior to commencement of trial. (People v. Simon (2001) 25 Cal.4th 1082, 1106-1107 (Simon) [failure to assert a timely objection to venue prior to the commencement of trial results in forfeiture of the right to object to venue]; People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 171 [failure to challenge vicinage in trial court results in waiver of the issue on appeal].) As we will explain, appellant’s ineffective assistance claim fails on direct appeal and is properly considered in a habeas corpus proceeding. (People v. Pope (1979) 23 Cal.3d 412, 426-428 (Pope).)
Appellant bears the burden of establishing inadequate assistance of counsel. (Pope, supra, 23 Cal.3d at p. 425.) She is not entitled to trial without error. (People v. Perez (1978) 83 Cal.App.3d 718, 734.) Rather, to prevail she must show both deficient performance and a reasonable probability of a more favorable outcome. (People v. Duncan (1991) 53 Cal.3d 955, 966 (Duncan).)
The appellate court also examines the record to determine if it contains any explanation for the challenged area of representation, such as an informed tactical choice. (Pope, supra, 23 Cal.3d at p. 425.) To resolve an ineffective assistance claim on direct appeal, the appellate record must clearly demonstrate that the alleged error was a “mistake beyond the range of reasonable competence.” (People v. Montiel (1993) 5 Cal.4th 877, 911.) In People v. Mendoza Tello (1997) 15 Cal.4th 264, our Supreme Court stated: “We have repeatedly stressed ‘that “[if] the record on appeal 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,” the claim on appeal must be rejected.’ [Citations.]” (Id. at p. 266.)
The “review of counsel’s performance is to be highly deferential…. ‘ … Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citation.] …’ [Citation.]” (Duncan, supra, 53 Cal.3d at p. 966.)
When the record does not illuminate the basis for a challenged act or omission and it is not necessarily an incompetent mistake, an ineffective assistance claim is more appropriately made in a petition for habeas corpus. Reviewing courts are not to become engaged “‘in the perilous process of second-guessing.’” (Pope, supra, 23 Cal.3d at p. 426.) They will not run the risk of unnecessarily ordering reversal in a case “where there were, in fact, good reasons for the aspect of counsel’s representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.” (Ibid.)
After carefully reviewing the record in this case, we conclude that it is insufficient to allow us to determine whether defense counsel’s failure to file a motion to change venue prior to commencement of trial was a deliberate tactical choice. “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Duncan, supra, 53 Cal.3d at p. 966.) Deciding whether to challenge venue is a tactical decision. In Simon, supra, 25 Cal.4th 1082, our Supreme Court explained: “[E]ven when a defendant is of the view that the criminal proceeding has not been filed in an authorized venue, he or she nonetheless may prefer for strategic purposes to be tried in the location where the proceeding has been filed rather than in a statutorily designated venue.” (Id. at p. 1106.) We are persuaded by the Attorney General’s argument that defense counsel reasonably might have decided not to file a motion to change venue prior to the start of trial based on information available to him at that time. Defense counsel could have possessed information not included in the record linking the charges stemming from the search of appellant on June 20 to the charges arising from the conspiracy to smuggle drugs into Corcoran. Alternatively, defense counsel could have determined that joint trial of all the charges in one venue benefitted appellant. The record lacks evidence indicating whether defense counsel discussed venue with appellant prior to commencement of the trial. We are not persuaded by appellant’s claim that defense counsel’s request for a jury instruction related to jurisdiction demonstrates that he did not understand the concept of venue.
Under the facts presented in this case it is inappropriate to assume that defense counsel’s failure to move for a change of venue resulted from ignorance or mistake. Thus, appellant’s ineffective assistance claim fails on direct appeal. “Any assertion that counsel was inadequate in this regard must be raised on habeas corpus.” (People v. Diaz (1992) 3 Cal.4th 495, 566; People v. Cummings (1993) 4 Cal.4th 1233, 1342.)
We decline to assess the probability of success if such a motion had been filed. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 268.)
DISPOSITION
The judgment is modified to stay the term of imprisonment imposed on count 5 and to stay the laboratory fee and associated penalty assessments imposed on counts 4, 5 and 6. The clerk of the Kings County Superior Court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections. As modified, the judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Dawson, J.