Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR034220. Mitchell C. Rigby, Judge.
Allan E. Junker, 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, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, P.J., Levy, J., and Dawson, J.
STATEMENT OF THE CASE
On April 8, 2009, appellant, Jonathan Ornelas, was charged in an information with possession of marijuana for purpose of sale (Health & Saf. Code, § 11359). At the conclusion of a jury trial, appellant was convicted of the allegation on September 21, 2009. On October 19, 2009, the court placed appellant on probation for three years. Appellant contends the trial court erred in failing to instruct the jury on the lesser included offense of simple possession of marijuana. Appellant alternatively argues that defense counsel was ineffective for stipulating to the exclusion of the lesser included instruction. We disagree with both contentions and will affirm the judgment.
FACTS
Prosecution Case
On January 29, 2009, Officer Jacob Tallmon knocked on the door and appellant answered. Tallmon entered appellant’s room where he found appellant and two others had been smoking marijuana. There was a thick haze of marijuana smoke in the room and a lit marijuana pipe. A female tossed a small bag towards the bed. The bag contained a small amount of marijuana. The bag had an emblem in blue ink of a person with horns, like a brand name. Tallmon explained this kind of emblem is common in drug culture and is meant to designate “individuality.”
The amount of marijuana in the bag was a usable amount. Tallmon found some empty plastic bags. Before talking to appellant, Tallmon left the bedroom and opened a window so he would not become intoxicated from all of the smoke. Tallmon read appellant his Miranda rights. Appellant understood his rights and was “okay” with talking to Tallmon. The female in the room said the marijuana she had dropped belonged to appellant. Appellant also said the marijuana belonged to him.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Appellant told Tallmon how long he had been selling marijuana and that he was not very good at it. Appellant said he had been selling marijuana a couple of months. Appellant was not making much money selling marijuana. When Tallmon asked appellant how much marijuana was in the room, appellant replied there was about an eighth, indicating an eighth of an ounce. Appellant pointed to a cigar box that contained money and some marijuana.
The box contained $88 in cash. Tallmon later weighed the marijuana at three and a half grams, equivalent to an eighth of an ounce. The empty plastic bags did not look like they had been used, but appeared to be new.
Tallmon found another two small prepackaged bags of marijuana in the room. These bags and the marijuana in the box were all usable amounts of marijuana. Two of the small bags contained.6 grams of marijuana and the other small bag contained.4 grams of marijuana. Tallmon also found a black digital scale. According to Tallmon, scales are usually owned by dealers not by buyers. Tallmon did not find pay-owe sheets.
Michael Haroldsen, a special agent supervisor with the California Department of Justice, Bureau of Narcotic Enforcement, worked in law enforcement for over 15 years and testified as an expert witness in many trials. After reviewing Tallmon’s report, Haroldsen was of the opinion that appellant possessed marijuana for sale. Haroldsen based his opinion on the number of small plastic baggies as well as the presence of the scale and money.
The absence of pay-owe sheets and the small amount of money found did not change Haroldsen’s opinion. The combination of the small, unused baggies with a design on them, the scale, and the box with marijuana and money in it meant to Haroldsen that appellant possessed marijuana for the purpose of sale.
Defense Case
Odelia Garcia was in appellant’s room when the officers arrived. Garcia explained she was “hanging out” with appellant, smoking marijuana on the corner of his bed. Garcia did not throw marijuana that day. The only thing Garcia had in her hand was her keys. Garcia did not think appellant’s room was that smoky because they had only been smoking for five minutes. Garcia did not buy marijuana from appellant. Garcia did not hear appellant tell Tallmon that he sold marijuana. Appellant never sold marijuana to Garcia.
Appellant testified that when the officers knocked on his door, appellant and his friends were smoking marijuana. The marijuana belonged to appellant who had used it for a long time. Appellant was smoking less than a half a gram of marijuana when the officers arrived. Appellant could not remember if Tallmon read him his Miranda rights before or after Tallmon questioned him.
Appellant explained that when Tallmon asked him how long he had been selling marijuana, appellant replied he does not sell. Appellant denied telling Tallmon he had been selling for a couple of months. Appellant denied selling marijuana and admitted the marijuana in the bedroom was his. Appellant possessed baggies because it was a convenient way for him to go places with his “weed” without taking all of it with him everywhere.
Appellant explained he had the scale because he had been “ripped off” by drug dealers in the past. Appellant had money in the cigar box because he had recently been paid. Appellant received an advance on his paycheck. He paid for his rent and for money for his son’s mother to go to college. The cash was the money left over. Appellant submitted a pay stub from when he got paid prior to the incident.
Jury Instructions and Closing Argument
When going over the jury instructions with counsel, the trial court asked if either party was going to request CALCRIM No. 3517, the instruction on lesser included offenses. Both the prosecutor and defense counsel stipulated they were not requesting this instruction.
In his closing arguments to the jury, defense counsel argued it was understandable that appellant would have a scale to make sure drug dealers were being honest. Defense counsel pointed out that possession of baggies did not prove appellant was selling marijuana. Defense counsel argued appellant was “basically a stoner who got caught in the crossfire” of zealous law enforcement officers. Defense counsel concluded his argument noting that the People failed to prove beyond a reasonable doubt that appellant possessed marijuana for sale.
DISCUSSION
A. Introduction
Appellant contends the trial court erred in failing to give a lesser included instruction on the crime of simple possession of marijuana. Respondent argues this case is governed by the doctrine of invited error because trial counsel stipulated that the court not give the lesser included instruction. We agree.
B. CALCRIM No. 3517
In the discussion of CALRIM No. 3517, the following colloquy took place:
“[The People]: Your Honor, I wouldn’t be requesting it. I mean, in all honesty I’m fine with rolling the dice with Count One or nothing at all. So unless the defense wants it as a lesser included.
“THE COURT: Mr. Curtis?
“[Defense]: Your Honor, I’m not going to request it either here.
“THE COURT: All right. Stipulate that CALCRIM 3517 is out then?
“[Defense]: By defense.
“[The People]: By the People.
“THE COURT: On the stipulation of both counsel, it’s out then.”
C. Standard of Review and Doctrine of Invited Error
Generally, trial courts must instruct the jury on lesser included offenses whenever the evidence warrants the instructions, whether or not the parties want the court to do so. The trial court’s sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on defenses, arises even against the defendant’s wishes and regardless of the trial tactics or theories pursued by the defendant. (People v. Beames (2007) 40 Cal.4th 907, 926 (Beames).)
The existence of any evidence, no matter how weak, does not justify instructions on a lesser included offense. The instructions are required whenever the evidence that the defendant is guilty only of the lesser offense is substantial enough to require consideration by the jury. (People v. Prince (2007) 40 Cal.4th 1179, 1264; People v. Hughes (2002) 27 Cal.4th 287, 366-367 (Hughes).) Where there is evidence of the lesser included offense of simple possession of narcotics, the trial court has a sua sponte duty to give a lesser included instruction even if the defendant’s theory at trial is that he or she had no knowledge of the existence of the narcotics. (See People v. Saldana (1984) 157 Cal.App.3d 443, 456-457.)
A defendant, however, may not invoke the trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when the defendant persuades the trial court not to instruct on a lesser included offense for tactical reasons. When this occurs, the doctrine of invited error bars the defendant from challenging the trial court’s failure to give the instruction as an issue on appeal. (Beames, supra, 40 Cal.4th at p. 927.)
Here, defense counsel stipulated that the trial court need not give the instruction on lesser included offenses; after the prosecutor stated he was not seeking the instruction and was willing to roll the dice on an all or nothing verdict, defense counsel agreed. The strong inference from the colloquy concerning the lesser included instruction is that defense counsel’s agreement to this procedure was for the identical reason the prosecutor did not want the lesser included instruction.
Appellant’s trial counsel was apparently willing to accept the risk of a felony conviction for possession of marijuana for sale as long as there was a possibility that he would obtain an outright acquittal on that offense. Defense counsel affirmatively stated he was not seeking the instruction and stipulated with the prosecutor that the instruction need not be given. Where counsel has affirmatively stated he or she does not want a lesser included instruction and there is a tactical basis to do so, the defendant is subject to the doctrine of invited error. (Beames, supra, 40 Cal.4th at p. 927.)
D. Ineffective Assistance of Trial Counsel
Appellant alternatively argues that defense counsel was ineffective for failing to request a lesser included instruction and/or stipulating that it not be given. Appellant argues there was no rational tactical purpose for defense counsel to fail to request the lesser included instruction. We disagree.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.)
In assessing a claim of ineffective assistance of trial counsel, reviewing courts generally defer to trial counsel’s tactical decisions. The burden rests on the defendant to show that counsel’s conduct falls outside the wide range of competent representation. To prevail on appeal, the record must affirmatively disclose the absence of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349.)
It appears in this case that defense counsel made a tactical decision to deny the jury the opportunity to convict appellant of the lesser included offense of possession of under an ounce of marijuana. (Health & Safe. Code, § 11357, subd. (b).) Given the limited penalty for that lesser crime ― a $100 fine ― that tactical decision may seem suspect in retrospect. But that is the problem; we can examine that decision only retrospectively and only on the basis of a cold record. We cannot know what might have influenced counsel. Perhaps there was some particular reason that appellant chose an all-or-nothing approach. Perhaps counsel acceded to his client’s not unreasonable wishes. On the record before us, we follow the general rule of deferral to defense counsel’s tactical decisions. Appellant has failed to meet his burden to show that his trial attorney’s conduct fell outside the wide range of competent representation. We do not find ineffective assistance of trial counsel.
DISPOSITION
The judgment is affirmed.