Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F09780
DAVIS, Acting P.J.
A jury convicted defendant Victor Frank Salazar of a single count of possession of methamphetamine and heroin while confined in a penal institution, and two counts of simple possession involving these same drugs. (Pen. Code, § 4573.6; Health & Saf. Code, §§ 11377, subd. (a), 11350, subd. (a).)
Sentenced to an unstayed term of six years, defendant appeals. He contends the trial court erred by failing to sanitize impeachment convictions; by failing to rule on the number and placement of security personnel; by failing to give CALCRIM No. 225 (use of circumstantial evidence); and by imposing a drug program fee. He also claims his two convictions for simple possession are improper multiple convictions. We shall strike these two simple possession convictions and the drug program and lab fees, but otherwise affirm.
Background
On May 18, 2004, a correctional officer at California State Prison, Sacramento, became suspicious after observing defendant, an inmate, near a group of Hispanic inmates. That officer then instructed another to do a pat-down search of defendant.
The search revealed a notebook in the front pocket of defendant’s pants. Defendant told the searching officer the notebook was his. Opening the notebook, the officer found defendant’s identification and, inside a slit in the back cover, five bindle's Three of the bindle's contained methamphetamine, the other two contained heroin; all were in useable amounts.
In an in-prison administrative hearing charging him with drug trafficking, defendant denied the charge but admitted he had possessed the drugs for personal use.
At trial, defendant, along with two other inmates who were in the vicinity of the incident, testified that defendant had simply found the notebook on the ground.
Discussion
1. Sanitizing Prior Convictions for Impeachment
Defendant contends the trial court abused its discretion by failing to sanitize his prior convictions, as well as those of his two defense witness inmates. Defendant claims the prejudicial impact of the nature of the convictions outweighed their probative value for impeachment purposes. We disagree.
Evidence Code section 788 permits the use of prior felony convictions for impeachment purposes. This use is subject to Evidence Code section 352’s restriction that the convictions’ probative value not be substantially outweighed by their prejudicial effect (this outweighing occurs when the convictions have only a slight probative value regarding the issues, but uniquely tend to evoke an emotional bias against a defendant). (People v. Cole (2004) 33 Cal.4th 1158, 1197.) The standard of review on this issue is whether the trial court abused its discretion (i.e., acted outside the bounds of reason). (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Defendant’s convictions comprised a 1988 conviction for possessing PCP for sale, and three convictions in 1990 arising out of one incident: two convictions for attempted murder and one for second degree murder. One of the defense witnesses had a first degree murder conviction from 1993, and three weapon possession convictions (two while in prison). The other defense witness had been convicted in 1999 of two counts of second degree robbery.
Defendant objected to his 1988 PCP conviction as too similar to the present offense, and hinted that his three 1990 murder-based convictions added little and created undue prejudice. After a hearing, and weighing probative value against prejudicial effect, the trial court agreed, in part, with defendant as to the 1990 convictions and whittled those down to just the second degree murder conviction.
We cannot say the trial court abused its discretion in permitting defendant’s impeachment with his 1988 drug conviction and his 1990 second degree murder offense. The drug conviction concerned a different drug and a different activity--possession for sale. In any event, the law does not bar impeachment with the same type of crime. (See People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647.) The trial court, moreover, mitigated the prejudicial impact of defendant’s 1990 orgy of violence against three separate victims.
Defendant’s real gripe is that the convictions were specified by offense (i.e., named). As defendant argues, in this “‘credibility contest,’” “[h]ad the prior convictions been sanitized, the jury would have learned [only] that [defendant] and his witnesses . . . had previously committed numerous felonies involving dishonesty and were presently incarcerated.” We do not see how the trial court abused its discretion in not following such a problematic ambiguous description of his priors and instead allowing the convictions (it had already limited) to be named during impeachment.
Furthermore, as to the two defense witness inmates, defense counsel did not object to the use of their prior convictions for impeachment. Consequently, defendant has forfeited this point. (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.)
Recognizing this, defendant claims on appeal that defense counsel was ineffective in failing to object. An ineffective assistance claim requires defendant to show that counsel performed below standard and that there is a reasonable probability the result would have been different absent the deficient performance (i.e., a probability sufficient to undermine confidence in the outcome). (In re Avena (1996) 12 Cal.4th 694, 721.)
Proceeding straight to the effective-counsel issue of prejudice, we cannot say defendant was prejudiced. Besides what we have said previously regarding the naming of the offenses, the trial court properly instructed the jury on the limited use of these convictions (instructing in 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. The fact of a conviction does not necessarily destroy or impair a witness’s credibility”).
2. Number and Placement of Security Personnel
Defendant contends (1) the trial court abdicated its duty to decide the number of correctional officers necessary for courtroom security, and (2) the placement of two of the officers standing behind defendant at trial was inherently prejudicial. We disagree. (Although defendant did not specifically object at trial on these grounds, we will consider these two issues on their merits in the context of defendant’s ineffective assistance claim on appeal.)
These two issues arose from a pretrial hearing on courtroom security. At that hearing, a correctional captain requested that defendant be fully restrained during trial (leg restraints and waist chain with cuffs). This was because defendant was a maximum security inmate confined in segregated, secure housing as a leader of the prison gang, the Mexican Mafia; he wore restraints even in the prison when not in his cell, he had a poor in-prison disciplinary record, and he was a “high risk transport” off of prison grounds.
The trial court rejected the request for full restraint, but called it a “close case.” The court, instead, ordered only a waist chain (no handcuffs) that the jury could not see.
Given the lower restraint level, the correctional captain then asked for one additional correctional officer in the courtroom (a total of three). The trial court agreed, saying, “I will leave that up to you.”
It is this last comment from the trial court that has drawn defendant’s fire about abdication. Defendant is off-target, however.
A longstanding distinction has been drawn in the law between shackling and security personnel monitoring. Shackling requires a court determination of “manifest need,” but monitoring does not, because monitoring is not deemed as prejudicial. (People v. Marks (2003) 31 Cal.4th 197, 223-224 (Marks); People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).)
The trial court certainly performed its judicial duty regarding shackling. (See People v. Hill (1998) 17 Cal.4th 800, 841-842 [trial court abuses its discretion if it abdicates its duty to decide the issue of shackling to law enforcement personnel].) Unless security personnel are present in unreasonable numbers, though, their presence need not be justified by the court or the prosecutor. (Marks, supra, 31 Cal.4th at p. 223; Duran, supra, 16 Cal.3d at p. 291, fn. 8.) Here, only one officer was added to the normal contingent of two, and this was done so defendant would not appear shackled at all.
Nor may defendant successfully claim that the placement of two correctional officers standing behind him was inherently prejudicial. The rule about the presence of security personnel not having to be justified (unless present in unreasonable numbers) encompasses “not only the standard positioning of officers but also their unusual deployment.” (Marks, supra, 31 Cal.4th at p. 223.)
In Marks, for example, our state high court concluded that the trial court there did not err in placing a deputy sheriff next to the defendant--and facing him--while the defendant testified from the witness chair. (Marks, supra, 31 Cal.4th at pp. 222-223 & fn. 5 [the officer sat four or five feet from defendant’s side, facing his ear].) Quoting from a United States Supreme Court decision, Marks stated: “[T]he ‘conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial [is not] the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest . . . .’ [Citation.] ‘ It is entirely possible that jurors will not infer anything at all from the presence of the guards . . . . Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm.’” (Marks, supra, 31 Cal.4th at p. 224, italics added, quoting Holbrook v. Flynn (1986) 475 U.S. 560, 568-569 [89 L.Ed.2d 525].) Here, the number of correctional officers, as noted, was reasonable; their placement was certainly no more prejudicial than the placement in Marks; and no issue was raised about weaponry.
3. CALCRIM No. 225
Defendant claims the trial court erred in failing to give on its own motion CALCRIM No. 225. We find no prejudicial error.
CALCRIM No. 225 instructs the jury on the use of circumstantial evidence to establish the mental state element of the offense at issue. (Paraphrased, the instruction states that before a juror may rely on circumstantial evidence to establish the mental state element, each fact underlying that conclusion must be established beyond a reasonable doubt and the only reasonable conclusion supported by the circumstantial evidence is that defendant had that mental state; and if there are two or more reasonable conclusions from the circumstantial evidence, one pointing to the mental state and another not, the juror must conclude the mental state was not proved).
CALCRIM No. 224, which the trial court did provide, instructs on the same concept as No. 225, and in substantively the same language, but it applies generally to establishing any element of guilt through circumstantial evidence.
The Bench Notes to CALCRIM Nos. 224 and 225 state that No. 225 is to be given when the mental state element is the only element of the offense that rests substantially or entirely on circumstantial evidence. (Bench Notes to Judicial Council of Cal. Crim. Jury Instns. (2008), CALCRIM Nos. 224 & 225, pp. 52-53, 55-56.) Defendant claims this is the situation here with respect to the mental state element at issue of his knowledge of the presence and nature of the drugs found in his possession.
Contrary to this claim from defendant, we note that, in defendant’s administrative hearing statement, he did acknowledge that he possessed the methamphetamine and heroin for personal use (providing direct evidence of this knowledge element).
Nevertheless, we need not split hairs, or even tear out our own hair, in determining whether the element of defendant’s knowledge rests substantially on circumstantial evidence. As our high court observed in a similar situation in People v. Rodrigues (1994) 8 Cal.4th 1060, “[b]ecause the trial court delivered the more inclusive instruction under CALJIC No. 2.01 [CALCRIM No. 224’s substantively same predecessor], its refusal to additionally instruct with CALJIC No. 2.02 [CALCRIM No. 225’s substantively same predecessor] clearly was not prejudicial error.” (Id. at p. 1142.)
4. Simple Possession Convictions as Improper Multiple Convictions
We agree with defendant, as do the People, that his two convictions, respectively, for simple possession of methamphetamine and of heroin constitute improper multiple convictions because they are necessarily included offenses within his conviction for possession of methamphetamine and heroin in a penal institution. (See People v. Sloan (2007) 42 Cal.4th 110, 116 [multiple convictions for necessarily included offenses are prohibited].) Consequently, these two convictions for simple possession must be stricken.
5. Drug Program Fee
The trial court imposed a $300 drug program fee under Health and Safety Code section 11372.7.
The record indicates the trial court agreed with defendant that he had no ability to pay this fee because he was serving three consecutive life sentences, had a minimum parole eligibility date of 2022 on the first sentence, and was administratively segregated with no paying job or even a possibility of getting one.
But the trial court mistakenly assumed that it was statutorily required to impose the minimum drug program fee. It was not. Section 11372.7, subdivision (b), states that “[i]f the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee.” There is no need for remand. We can simply strike this fee in accord with the trial court’s indicated intention.
Finally, the $100 lab fee, which was based on the now-stricken two simple possession convictions, must itself be stricken. (See Health & Saf. Code, § 11372.5, subd. (a).)
Disposition
Defendant’s convictions for simple possession of methamphetamine (Health & Saf. Code, 11377, subd. (a); count two) and simple possession of heroin (Health & Saf. Code, § 11350, subd. (a); count three) are stricken. The drug program fee of $300 and the lab fee of $100 are stricken. (Health & Saf. Code, §§ 11372.7, subd. (a), § 11372.5, subd. (a).) In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to send a certified copy of this abstract to the Department of Corrections and Rehabilitation.
We concur: MORRISON , J., CANTIL-SAKAUYE , J.