Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07729
NICHOLSON, J.
A jury convicted defendant Abelino Gonzalez Nunez of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possessing methamphetamine for sale (Health & Saf. Code, § 11378). After finding defendant had previously been convicted of possessing a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), the trial court sentenced defendant to seven years in state prison, calculated as follows: the upper term of four years on the transportation count, plus three consecutive years for the prior conviction. The court stayed the midterm of two years on the possession for sale count pursuant to Penal Code section 654.
Defendant appeals, claiming the trial court committed prejudicial error by: (1) not instructing the jury on his mistake of fact defense; (2) not conducting a sufficient inquiry on his two Marsden motions; and (3) imposing pursuant to Senate Bill No. 40 the upper term sentence based on factors that were not tried to a jury. We affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
The abstract of judgment incorrectly notes the sentence on the transportation count as the upper term of seven years, omitting any reference to the three-year enhancement. We will order the abstract be corrected in our disposition.
FACTS
Officer Dan Farnsworth of the Sacramento Police Department stopped defendant on August 30, 2006, for speeding. At Farnsworth’s request for identification, defendant gave him what appeared to be a Mexican identification card from Baja California imprinted with the name Alejandro Villagomez and a picture of defendant. Defendant also gave Farnsworth a Social Security card imprinted with the same name.
Farnsworth removed defendant and his passenger, Maximiliano Madrid-Mena, from the car and searched it. He found a heat-sealed plastic bag underneath the passenger seat. Inside that bag was another plastic bag later determined to contain 381 grams, or slightly less than one pound, of methamphetamine.
At trial, Farnsworth qualified as an expert on the “transportation and possession for sale of methamphetamine.” He explained that placing drugs in heat-sealed bags was a common method of transporting larger quantities of drugs in order to mask the drugs’ odor. In this case, the methamphetamine did not have a strong odor when it was inside the bag. However, when he removed the drug from the heat-sealed bag, “[i]t stunk.”
Farnsworth suspected the material was methamphetamine due to its large volume, consistency, heat-sealed packaging and its concealment. He performed a Valtox, or presumptive, test on the material, and it tested positive for methamphetamine. He stated that at that time, a pound of methamphetamine sold for between $8,000 and $10,000.
Farnsworth explained that dealers increase their profits by mixing “cut” into the drug, thereby increasing the quantity available for sale. A common cutting agent is a joint medication called MSM. The material can be used on horses or humans, and is available for sale without a prescription. Farnsworth stated he has never seen MSM or other cutting agents heat-sealed in a plastic bag by themselves.
Based on the amount of methamphetamine defendant possessed and the lack of evidence of any personal use, Farnsworth stated it was his opinion the methamphetamine was possessed for sale. A regular user could not afford that much methamphetamine at one time.
Officer James Harrington interviewed defendant through an interpreter at the police station. Defendant admitted he had lied about where he lived because he knew “what was going on.” Defendant said he did not know the material in the car was “crank.” He also said his friend, Madrid-Mena, did not know what was going on. Harrington asked defendant to provide him with an accurate name. Defendant lied and said it was Antonio Cruz.
Criminalist Jill Ibarreta testified her tests on the material indicated the presence of methamphetamine. Her tests were to determine only if the drug was present. They did not “quantitate,” i.e., determine how much of the drug was present in the tested material.
Defendant had been arrested at least one time before for possessing methamphetamine. Sacramento County Deputy Sheriff Daniel Brown testified that in 1998, he stopped defendant for speeding. Defendant orally indentified himself as Abelino Nunez. He refused to open his cupped hand on Brown’s request. When Brown drew his weapon, defendant threw the object in his hand over his shoulder. Brown recovered the object, which later was determined to be 14 grams of methamphetamine.
Defense case
Defendant testified on his own behalf through the use of an interpreter. He stated his name was Abelino Gonzalez Nunez. He claimed the package found in the car was his, and it contained “MCM,” a medication for horses. He said he had it to play a joke on someone.
Presumably, defendant meant to say MSM.
Defendant said the person who had originally given him the MSM continued to pester him for a pound of methamphetamine. He mixed the MSM with some liquid used in camping lamps and some ground-up unknown pills. He borrowed a heat sealer from one of his roommates and sealed the concoction in a plastic bag to make it look like methamphetamine.
He was certain there was no methamphetamine in the mix. He had tested it by attempting to smoke it but had been unsuccessful. He was familiar with methamphetamine because he had used it “a lot.” He admitted he had previously been convicted of selling methamphetamine.
At the time of his arrest, he originally had the mix in his pants under his waistband. As the police were pursuing him, he took it out and told his passenger to put it under his seat. He did this because he knew a bench warrant had been issued for him for failing to appear at a work project.
Defendant admitted using many false names over the years, including Alejandro Villagomez and Antonio Cruz. He had obtained the false identification cards in Mexico so he could obtain work in the United States. He said his true name is Abelino Gonzalez Nunez.
DISCUSSION
I
Not Instructing on Mistake of Fact Defense
Defendant asserts the trial court committed prejudicial error by not instructing the jury sua sponte on his mistake of fact defense. Alternatively, he claims he was denied effective assistance of counsel when his attorney failed to request that instruction in his defense. We conclude the trial court’s omission of the instruction did not prejudice defendant.
“It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation] -- evidence sufficient for a reasonable jury to find in favor of the defendant [citation] -- unless the defense is inconsistent with the defendant’s theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.) This obligation of the trial court applies to the defense of mistake of fact. (See People v. Mayberry (1975) 15 Cal.3d 143, 157; People v. Russell (2006) 144 Cal.App.4th 1415, 1430.)
Here, defendant’s testimony that he did not know he was possessing and transporting methamphetamine was evidence that, if believed by the jury, would have required the jury to acquit. “Knowledge of the narcotic nature of the object possessed constitutes an essential element of the crime of possession of narcotics, and the prosecution must establish that a defendant entertained such knowledge.” (People v. Horn (1960) 187 Cal.App.2d 68, 74.) Defendant testified at trial that he did not know the material was methamphetamine, and he was certain it was not. He said the same to Officer Harrington. His testimony is substantial evidence that should have triggered the mistake of fact instruction by the court.
Defendant contends the error was of federal constitutional dimension, requiring prejudice to be assessed under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]. Under this standard, we must decide “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 189], italics omitted.) Assuming, without deciding, that defendant is correct in this regard, we conclude the Chapman standard is satisfied.
Cf. People v. Russell (2006) 144 Cal.App.4th 1415, 1431: “Error in failing to instruct on the mistake-of-fact defense is subject to the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836.”
There is no doubt that had the instruction been given, defendant still would have been convicted. First, the element of knowledge was necessarily decided under other instructions. The court instructed the jury that the prosecution had to prove guilt beyond a reasonable doubt, that defendant “knew of the substance’s nature or character as a controlled substance,” and that defendant committed the crimes “with a specific intent or mental state.” Under these instructions, the jury could not find defendant guilty unless it was convinced beyond a reasonable doubt that defendant knew he possessed a controlled substance, i.e., he was not mistaken about what he possessed –- the very point the omitted instruction would have addressed.
Second, the evidence overwhelmingly demonstrates defendant knew he possessed a controlled substance. He testified that he hid the package in his pants while he was driving, and he hid the package under the passenger seat when the officer was pursuing him. The package stunk like methamphetamine when it was opened, a fact defendant, who claimed he knew what methamphetamine was from experience, would have known as he was heat-sealing the bag. There was no reason for defendant to have taken these actions unless he knew he illegally possessed a controlled substance.
Even defense counsel, in the hearings on the Marsden motions discussed below, acknowledged there were no facts corroborating defendant’s assertion of mistake of fact.
Moreover, defendant had virtually no credibility with this jury. He admitted lying to police officers twice about his name and once about his address. He presented the officers with a fake identification card which contained his photograph and a fake Social Security card which he bought in Mexico. He admitted to “a lot” of prior use of methamphetamine. He also admitted to a prior felony conviction for selling methamphetamine. Under these circumstances, there was no possibility the jury would have determined defendant mistakenly believed he was not carrying a controlled substance at the time of his arrest. His claim of acquiring and packaging apparent methamphetamine to deceive someone who was pestering him for a pound of methamphetamine strains credulity.
For the same reason, defendant did not receive ineffective assistance of counsel when his attorney did not request the mistake in fact instruction. The evidence just discussed shows defendant was in no way prejudiced by his attorney’s action, a requirement for establishing a claim of ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692 [80 L.Ed.2d 674, 693-696].)
The trial court’s omission of the mistake in fact instruction was not prejudicial error.
II
Sufficiency of Inquiry on Marsden Motions
Defendant claims the trial court failed to conduct a sufficient inquiry into his two Marsden motions. He argues the evidence shows a complete breakdown in the attorney-client relationship, and that the trial court recognized the breakdown but nonetheless denied the motions and wrongly faulted defendant for the strain in the relationship. Defendant did not trust his counsel because, among other reasons, counsel told him to plead guilty several times and take the offer, suggested he testify the substance belonged to his passenger, asked him to “turn in names,” requested a hearing pursuant to Penal Code section 1368 to determine his competency, and failed to explain away a discrepancy in the lab reports regarding the weight of the methamphetamine. He accuses the two trial judges who heard his motions of not inquiring sufficiently into these assertions, resulting in a silent and inadequate record on appeal.
Our review of the record discloses the trial judges adequately inquired into defendant’s claims and did not abuse their discretion in denying his Marsden motions.
A. Additional background information
Nearly four months after defendant was arraigned, his appointed attorney, Daniel Clymo, declared a doubt about defendant’s competence to stand trial (Pen. Code, § 1368) and proceedings were suspended. Three months later, after defendant had been examined, the court determined he was competent and it reinstated proceedings.
That same day, defendant made an oral Marsden motion before the Honorable Timothy M. Frawley. Defendant began the hearing by questioning a discrepancy in two lab reports regarding the weight of the methamphetamine. A lab that retested the methamphetamine at defendant’s request said the substance weighed 253 grams, while the lab report provided by the prosecution said the substance weighed 381 grams.
Clymo addressed the discrepancy. He explained that defendant claimed the substance recovered from the car was not methamphetamine. Clymo arranged to have the substance retested by an independent lab. The retest indicated the substance tested positive for methamphetamine. When Clymo explained that to defendant, “that is when we started having problems.” Clymo believed the discrepancy in the weight resulted because only 20 milligrams of the substance was delivered to the independent lab.
The prosecutor later gave a more plausible explanation for the discrepancy. The original 381 grams were submitted for testing in two smaller bags. The substance in one of the bags weighed 253 grams. Both bags were tested, and both tested positive for methamphetamine.
Defendant asked another question: Why had Clymo asked him “for the names of people to turn in?” At this, the court stated it was not clear whether defendant was actually asking the court to appoint another lawyer or was just raising certain questions. Defendant said he had a lot of questions. When the court remarked that he apparently did not trust his lawyer’s answers to those questions, defendant said, “I have never and he knows it.”
The court asked defendant why he felt Clymo had not properly represented him. Defendant listed a number of reasons. Clymo had failed to raise certain issues in defense: the falsity of the accusation, an alleged illegal search of a van defendant owned, and the police officer’s lack of probable cause to stop him because the officer was not following him (but a helicopter allegedly was). He accused Clymo of asking questions about other people who may have been involved in the case, telling him to take the prosecution’s offer of five years, instructing him to testify that the substance belonged to the passenger, and categorizing him as “a crazy person,” presumably referring to the competency motion.
At the court’s request, Clymo responded to defendant’s assertions. Defendant had expressed his anger over the search of his van at his apartment, but this case concerned contraband found in another vehicle, not the van. He had asked defendant what substances from the van he was hoping to exclude because the police report did not indicate any. According to Clymo, defendant indicated “that I was there and I knew what happened so he wasn’t going to tell me, which gave me my 1368 concerns.”
At the preliminary hearing, the arresting officer testified that he was behind the car defendant was driving, and he paced defendant at 70 miles per hour in violation of the speed limit. Also, Clymo listened to the dispatch tape to see if there were any discrepancies that would be the basis for a motion to suppress and apparently found none.
As to the Penal Code section 1368 hearing, Clymo explained that the two doctors appointed to review defendant both indicated he was competent to stand trial. One found no psychological disturbances. The other indicated defendant met the criteria for alcohol dependence and methamphetamine dependence but still found him competent.
The court asked defendant to respond to Clymo’s explanations. Defendant said simply, “I just want the truth. That’s all.”
The court continued its inquiry by asking Clymo to explain “why there appears to be a breakdown in the attorney/client relationship or a lack of confidence in your client’s part?” Clymo replied that defendant was quite confident the retest on the substance would exonerate him. He became upset when Clymo told him the results. At that point, Clymo discussed with him the prosecution’s offer of five years. However, Clymo never told defendant he had to take it.
Clymo attempted to discuss possible defenses with defendant, such as defendant was not aware the substance was methamphetamine, or that the substance belonged to the passenger. Defendant did not want to discuss any of these defenses with him.
Another possible defense concerned defendant’s earlier statement to Clymo that the substance was horse medication. Clymo asked defendant if he had names of witnesses he wanted Clymo to speak with who could corroborate defendant’s claim. Clymo told him those discussions would be confidential, and he would not divulge them under any circumstances.
The court asked Clymo if he felt there had been a breakdown such that it was impossible for him to competently and effectively represent defendant. Clymo thought not. “I would be more than willing to meet and discuss the case and prepare a defense for [defendant] on my behalf,” Clymo stated, but “I don’t know if [defendant] is willing to speak to me.”
The court asked defendant again to explain, “in just a few words,” why he did not feel Clymo could appropriately represent him. Defendant replied in full: “Well, I think it’s because I just think all he has done is told me lies, pure lies.”
The court then denied the motion. It determined there had not been a breakdown in the relationship such that effective representation was impossible. It also found that to the extent there had been a deterioration in the relationship, it was “because of the anxiety that [defendant] feels about his case, the fact that he hasn’t been given answers that he would prefer to hear.”
Approximately six weeks later, and about three weeks before the case was assigned to trial, defendant filed a second Marsden motion, this one in writing. He stated a conflict precluded adequate representation. He specifically alleged Clymo had failed to communicate with him, to perform critical investigations, and to present an affirmative defense at his preliminary hearing. This motion was heard before the Honorable Russell L. Hom.
At the hearing on this second motion, the court asked defendant if he wanted the court to replace Clymo with another attorney. Defendant replied: “On the first time I saw him, that’s what I told him. I am not a fool, and I know when a person is trying [to] help me. The way [he] had spoken, I think he is hurting me.”
The court interpreted that comment as a request for a substitute attorney, and it asked defendant to explain why he felt another attorney was required. Defendant said, “[B]ecause when I say white, he says black.” The court asked defendant to be more specific. Defendant said Clymo has “only heard just a few words” about “my problem.” Clymo is “just taking me to court dates, but he’s not defending me, he’s not looking at things the way I want him [to] look at things.”
The court again asked defendant to be more specific. “I am telling him the whole truth,” defendant said, “and I feel that he is looking at me and judging me.” Defendant then repeated many of the same complaints he raised with the first Marsden motion. Clymo had not checked “the video from the [illegal] stop,” he had not checked “the recording from the helicopter that was [illegally] following me,” and he had not challenged the search of his van.
The court asked Clymo to explain what he had done regarding the propriety of the search of defendant’s van and the traffic stop. Clymo had learned the police had searched defendant’s van and apartment, but they took nothing of evidentiary value that would form the basis of a motion to suppress. Clymo also reviewed the police report with defendant that noted the officer was behind defendant, noticed his car speeding, and pulled him over for a speeding violation.
Defendant told Clymo the officer was lying and he would provide witnesses that would support his claim. Clymo asked for the witnesses’ names, as he had on other occasions, but defendant refused to give them to him. He said he would contact Clymo’s office with that information. Clymo arranged to have a Spanish-speaking investigator available for him should defendant refer any witnesses to him. Defendant never contacted Clymo’s office with witness information.
Nonetheless, Clymo was prepared to file a motion to suppress on the ground that defendant was not speeding. (The motion was ultimately denied.) He was hoping to have some corroborating witnesses who could bolster defendant’s chances of succeeding on the motion, but defendant gave him none.
In response to Clymo’s statements, defendant asked Clymo how many times he had accepted defendant’s calls. To his knowledge, Clymo had not received any calls. Defendant then asked Clymo if he had received a “witness letter, because I have noticed that whether I speak, you won’t hear me, so I put it in writing so that you would pay attention to it.” Clymo had not received such a letter.
The court asked defendant if there was anything else. Defendant said Clymo “was not a good attorney when he asked me for the names of [the] people . . . who had given me that substance.” The court again asked if there was anything else. Defendant said Clymo made him “think that he wanted me to blame my friend. Like I say, I am a person, I am not a fool, I know what is good. I know what is bad.”
The court gave Clymo a chance to respond. Clymo repeated that defendant had told him the substance was some kind of horse medication. Clymo saw this as an opportunity to make either a mistake of fact defense or to have corroboration that the material was indeed horse medication. The court summed up that Clymo was trying to find corroborative witnesses by asking defendant for names.
The court then denied the motion. It determined Clymo had properly represented defendant and would continue to do so. It blamed defendant for any problems in the relationship: “I find if there has been any breakdown in the relationship between Mr. Clymo and [defendant], it’s based upon what appears to be [defendant’s] unreasonable expectations in terms of what he believes Mr. Clymo should be doing in terms of the 1538 [suppression motion], [and] Mr. Clymo apparently is pursuing that.
“In terms of the questions that Mr. Clymo has posed him, although the defendant may feel that he shouldn’t ask those questions, they would appear to be an area of investigation based upon the information that was available to Mr. Clymo at the time [and so would be] appropriate and necessary.”
B. Analysis
“A defendant ‘may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.’ [Citation.] The law governing a Marsden motion ‘is well settled. “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” [Citations.]’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 857.)
We review the trial court’s decision on a Marsden motion for a clear abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1190.) A defendant may not force the substitution of counsel by his own conduct. (People v. Smith (1993) 6 Cal.4th 684, 696.) Also, to the extent there was a credibility question between defendant and counsel at the hearing, the trial court was entitled to accept counsel’s explanation. (Ibid.)
Neither trial judge abused his discretion in the manner in which he conducted the Marsden hearings or in denying the motions. The judges fully allowed defendant to state his complaints, and then they inquired into them with counsel. Over the course of the two hearings defense counsel responded to each of defendant’s assertions of wrongdoing, and the trial judges considered the assertions made by both defendant and counsel. The judges gave defendant numerous opportunities to state his complaints and to provide more specifics. Defendant’s failure, or inability, to provide more details does not indicate the judges failed to inquire into his claims fully. There is no ground here to reverse the trial judges’ rulings on either of the two Marsden motions.
III
Imposition of Upper Term Sentence
Defendant asserts the trial court violated his constitutional rights by sentencing him to the upper term pursuant to the procedure set out in Senate Bill No. 40, without a jury finding the truth of mitigating factors, and in reliance on a single, valid factor, his prior felony conviction. Defendant acknowledges we are bound by the rules of People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which reject each of his arguments. Nonetheless, he raises the arguments here “to exhaust state remedies and preserve his right to federal review of his sentence.” We reject his arguments under the now well-known holdings of Black II and Sandoval, and, as defendant also acknowledges, pursuant to the doctrine of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
DISPOSITION
The judgment is affirmed. The clerk of the trial court is ordered to prepare and file an amended abstract of judgment noting the sentence on count one is for the upper term of four years, and noting the enhancement under Health and Safety Code section 11370.2, subdivision (c), was deemed true and that a three-year consecutive term was imposed under that enhancement. The clerk shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P. J., CANTIL-SAKAUYE, J.