Opinion
D072238
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. SHARON EILEEN WRIGHT, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Collette C. Cavalier and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS286007) APPEAL from a judgment of the Superior Court of San Diego County, Thomas D. Glasser, Judge. Affirmed and remanded with directions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Collette C. Cavalier and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Sharon Eileen Wright of importing a controlled substance, to wit, heroin (Health & Saf. Code, § 11352, subd. (a); count 1), possession for sale of heroin (Health & Saf. Code, § 11351; count 2), and importing a nonnarcotic controlled substance, to wit, methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 3). As to count two, it found true that the heroin weighed 14.25 grams.
The court deemed Wright ineligible for probation or a split sentence and sentenced her to six years in county jail. Wright contends (1) the prosecutor committed misconduct by eliciting an expert's testimony regarding her credibility; (2) her trial counsel rendered ineffective assistance by failing to object to the prosecutor's questions on that issue; and (3) the court erred by denying her a split sentence. We affirm the judgment of conviction but remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A United States Customs and Border Protection canine officer testified that on April 8, 2016, at around 9:00 p.m., she was working in the pedestrian area of the San Ysidro Port of Entry when her dog "alerted to" Wright as possibly carrying narcotics on her person. Wright was handcuffed and taken to secondary review, where another Customs and Border Patrol canine officer inspected her. Both officers testified Wright did not appear frightened or say anything about needing help or being threatened. A separate official patted down Wright and found concealed on her body six cylindrical packages wrapped in condoms, and two small packages.
Another officer testified that the contraband tested positive for heroin and methamphetamine. He testified that when arrested, Wright was "very calm," and did not say anything about needing help or being in immediate danger.
This officer testified: "They were exactly four condoms, and each condom contained two more individual, smaller condoms, for a total of ten of those." --------
The parties stipulated that the authorities seized 496.6 grams of heroin and 6.61 grams of methamphetamine from Wright. When detained, she had on her person a total of four cellular phones and 12 subscriber identity module (SIM) cards.
Expert Witness Testimony
A special agent with the Department of Homeland Security testified as an expert that drug cartels typically recruit United States citizens as "body carriers" to smuggle narcotics on their person into the United States and pay them in cash or narcotics. The expert estimated that the contraband Wright carried had a wholesale value in San Diego of $17,000 for the heroin and $250 for the methamphetamine. He testified in reference to a hypothetical based on facts similar to this case that the heroin was being smuggled for sale and the methamphetamine was the payment. The expert further testified that body carriers typically carry more than one cellular phone to confuse law enforcement. The expert met with Wright that night and described her demeanor as "[c]ool, calm, [and] collected." He testified the drug cartels do not usually threaten people to carry drugs into the United States because they do not have problems finding body carriers, most of whom willingly transport drugs in order to get paid. Moreover, the cartels seek to avoid risking their drugs being seized by law enforcement, as body carriers sometimes informed customs officials at the border that they were being forced to carry narcotics.
The expert testified that although surveillance cameras capture pedestrians crossing the border, he did not obtain footage showing Wright's crossing because the recording is erased after two weeks, and he did not seek it earlier.
Wright's Testimony
Wright, a United States citizen, testified that in 2016, she was living in Tijuana and crossing the international border five or six days per week to work in the United States as a caregiver for the elderly and handicapped. On the day of the incident, she left her house at approximately 9:00 a.m. to catch a taxi for the border. She carried four cellular phones in her bag. A taxi driver eventually stopped for her and she got in. After a few minutes, the taxi driver stopped at a house and talked to a man, who entered the taxi and sat next to Wright. The taxi proceeded, and after a few minutes the passenger put a hood over Wright's head and bound her hands. The taxi continued on for approximately fifteen minutes and then stopped. Some men escorted Wright into a garage-like, windowless room. One man removed the hood and started asking her to work for him by crossing the border with packages wrapped in condoms. She assumed they contained drugs, and refused to carry them. He repeatedly pressured her for about five hours off and on. He left the garage for about an hour while two other men remained with Wright.
When the man returned, he showed Wright some photographs of herself, her daughter and her granddaughter, and asked if she liked those family members. He again told Wright to take the drugs across the border, and she again refused. The man then tore up one of the photographs. Wright suddenly had a vision of her granddaughter with a knife to her throat and therefore she agreed to transport the drugs. The men put the hood on Wright's head, retied her hands, and took her back to the taxi. One man told her that when she crossed the border, she should give the drugs to a girl, who would find Wright. Only then would Wright's granddaughter be okay.
When the taxi reached close to the border, Wright was unbound and she removed her hood. A few minutes later, she noticed a woman standing near a tree looking at the taxi. While walking to the border checkpoint, Wright stopped at a bathroom and noticed the same woman behind her. The woman remained close to Wright as they made their way to the head of the line, and signaled to Wright to eventually hand over the drugs to her. Shortly afterwards, Wright was arrested.
Wright admitted that in 2014 she had been convicted of possession of paraphernalia and methamphetamine. She also said she had used methamphetamine regularly since she was eight years old.
On cross-examination, the prosecutor presented Wright with the official record of her border crossings, which were fewer than Wright had stated. Wright admitted she had incorrectly testified about that matter. The prosecutor also challenged Wright's account of the length of time she was kidnapped. Wright stated for the first time that the man had taken "several hours" before presenting her all the photographs. Wright maintained that three men had kidnapped her for approximately 12 hours. Wright admitted she did not tell any border patrol agent that she was in trouble or that she was trying to cross drugs into the United States, claiming she did not trust any of the agents.
DISCUSSION
I.
Prosecutorial Misconduct Claim
Wright contends the prosecutor committed misconduct by questioning the expert on rebuttal about Wright's truthfulness, thus improperly invading the jury's duty to decide that ultimate issue. Wright concedes her trial attorney did not object on prosecutorial misconduct grounds or request an admonition of the jury. A. Background
On rebuttal, the prosecutor asked the expert whether he "[took] any issue with anything that [Gonzalez] said that caused concern?" The court sustained a defense objection to that question made on vagueness grounds. The following colloquy immediately ensued:
"[Prosecutor:] Do you have specific areas of contention that you had with [Wright's] testimony?
"[Expert:] Yes.
"[Prosecutor:] Could you tell us briefly what those are?
"[Expert:] It would surround her duress claim.
"[Prosecutor:] Okay. What specifically regarding her duress claim did you take issue with?
"[Expert:] The manpower that was utilized for that amount of dope or drugs, narcotics.
"[Prosecutor:] What do you mean by that?
"[Expert:] Sitting here listening to her testimony, it sounds like she had upwards of six to seven people trying to scheme to move 1.4 pounds of heroin into the United States. For a drug trafficking organization, there's no need to do that. They can go hire anybody they want. So why pressure someone into doing it when you can get anybody on the street to do it for you who needs money?
"[Prosecutor:] What about the amount of time that was devoted to getting one person?
"[Expert:] That's another thing. They are not going to waste much time. You either do it—the recruitment method is you either do it or you don't do it. They are not going to waste time trying to pressure you. They just move on to the next individual. That's how they work. That's how the organization works."
Defense counsel next questioned the expert regarding his rebuttal testimony:
"[Defense Counsel:] [Y]ou indicated that you don't believe Ms. Wright's testimony; is that fair to say?
"[Expert:] Yes.
"[Defense Counsel:] Okay. And it's also fair to say that you interview people who are suspected of crossing drugs over the border the same way you interviewed Ms. Wright?
"[Expert:] Correct.
"[Defense Counsel:] And you really don't believe anyone when they say that they have been forced to smuggle drugs
"[Expert:] That's not true."
Wright's defense was that she was a victim of the drug traffickers and transported the drugs out of necessity. Defense counsel argued that theory to the jury: "Well, Ms. Wright was scared. Her granddaughter was threatened, and so she wanted to do what she needed to do to prevent that at all costs." Defense counsel added: "What Ms. Wright told you on that stand was that she had to do it. She didn't want to do it. Would she have done it but for the threat to [her granddaughter]? No. So, her necessity defense is absolutely valid. And when the People tell you it's totally unreasonable because [Wright] didn't do certain things, well, that's [the prosecutor's] opinion of it, and [the expert's] opinion, because he doesn't actually believe this happens."
The court instructed the jury regarding necessity with CALCRIM No. 3403, which states in part: "In order to establish this defense, the defendant must prove that [¶] 1. She acted in an emergency to prevent a significant bodily harm or evil to herself or someone else; [¶] 2. She had no adequate legal alternative; [¶] 3. The defendant's acts did not create a greater danger than the one avoided; [¶] 4. When the defendant acted, she actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency. [¶] The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt." B. Applicable Law and Analysis
A prosecutor's misconduct violates the federal Constitution and requires reversal when it infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) Under state law, a prosecutor's conduct that does not render a criminal trial fundamentally unfair is still error if it involves the use of deceptive or reprehensible methods in attempting to persuade the trier of fact. (Id. at pp. 1009-1010.) Generally, a claim of prosecutorial misconduct is preserved for appeal only if the defense makes a timely objection and requests an admonition to cure any harm. (People v. Centeno (2014) 60 Cal.4th 659, 674.) We conclude the claim is forfeited because defense counsel failed to object, and we have no basis to believe that a jury admonition would have been ineffective.
II.
Ineffective Assistance of Counsel
We nonetheless address this claim on the merits because Wright alleges her trial counsel rendered ineffective assistance by failing to object to the expert's rebuttal testimony. A. Applicable Law
All defendants in criminal proceedings have a constitutional right to effective assistance of counsel. (Gideon v. Wainwright (1963) 372 U.S. 335.) To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient such that it "fell below an objective standard of reasonableness" and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) To show prejudice, a defendant must establish by a reasonable probability that if counsel's performance was not deficient, he would have received a more favorable result. (Id. at p. 694.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's 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.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, at p. 697.) "In general, reviewing courts defer to trial counsel's tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel's conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal. 4th 313, 349.) B. Analysis
We conclude Wright cannot show prejudice to make out an ineffective assistance of counsel claim. As set forth in detail above, on direct examination the expert had already testified that drug cartels have no shortage of willing recruits, and they do not threaten body carriers because in doing so they would risk losing their valuable merchandise. The expert on rebuttal testimony added nothing to his direct testimony other than his acknowledgement to defense counsel that he did not believe Wright's testimony. The expert's disagreement with Wright would have already been apparent to the jury based on his direct testimony alone.
On this record, there is no reasonable probability the jury would have returned a more favorable verdict. Specifically, all witnesses agreed Wright was calm during her interactions with them, and her demeanor did not reveal any fear or apprehension. Wright also admitted she did not ask the border agents for help and never expressed concern for her granddaughter. The jury could have reasonably concluded that Wright's demeanor was not consistent with that of someone who had just been kidnapped for 12 hours and whose granddaughter had been threatened with death. The jury also could have reasonably concluded that Wright was untruthful regarding the frequency of her border crossings, and therefore untruthful about other aspects of her testimony. Moreover, based on Wright's testimony that she previously was convicted of methamphetamine possession and was a life-long user of that drug, the jury could have believed the expert's testimony that the methamphetamine she was carrying was her payment for smuggling the heroin. Finally, the jury could have reasonably believed the expert's testimony that the four cellular phones and 12 SIM cards found on Wright's person indicated her involvement in drug trafficking. We additionally point out the court instructed the jury that it alone must judge the credibility of witnesses and on how to interpret expert witness testimony.
III.
Split Sentence Issue
Wright contends the court declined to impose a split sentence because it erroneously concluded she was ineligible; therefore, we should remand the matter for resentencing. The People concede the court erroneously stated Wright was ineligible for mandatory supervision but they argue remand for resentencing is unnecessary as the court would likely not change its ruling: "The trial court's other stated reasons as well as the trial court's other remarks and findings at sentencing demonstrate that the denial of a split sentence was not an abuse of discretion and that even without considering her ineligibility for probation, the trial court would have denied the split sentence based on her poor performance on probation and the fact that she was not amenable to further treatment or programming." A. Background
The Probation Department recommended the court impose a five-year split sentence under Penal Code section 1170, subdivision (h)(5)(B), with Wright serving two years in custody and three years under mandatory supervision.
At the sentencing hearing, defense counsel requested probation or a split sentence. However, citing People v. Borynack (2015) 238 Cal.App.4th 958, the court denied both requests: "[Wright] is not eligible for mandatory supervision because she is ineligible for probation." B. Applicable Law
In 2011, the Legislature enacted the Criminal Justice Realignment Act, under which certain felons no longer serve their sentences in state prison. (People v. Scott (2014) 58 Cal.4th 1415, 1418.) Instead, those felons "serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer." (Id. at pp. 1418-1419.) A sentence to be served partly in county jail and partly under mandatory supervision is known as a "split sentence," and is imposed under Penal Code section 1170, subdivision (h)(5). That provision states, in relevant part: "[T]he court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the court's discretion. [¶] (B) The portion of a defendant's sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later. During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, and may not be earlier terminated except by court order." (Pen. Code, § 1170, subd. (h)(5).) Thus, "mandatory supervision is achieved by suspending execution of the concluding portion of the realigned sentence." (People v. Borynack, supra, 238 Cal.App.4th at p. 963.) C. Analysis
The court's reliance on Borynack for denying a split sentence is misplaced. That case held that if a statute prohibits the suspension of execution of a portion of a sentence, then mandatory supervision is not available to one convicted under that statute. (People v. Borynack, supra, 238 Cal.App.4th at pp. 964-965.) Here, none of the statutes under which Wright was convicted includes that prohibition. Therefore, contrary to the court's statement, Wright was not automatically ineligible for mandatory supervision.
Defendants are entitled to sentencing decisions made in the exercise of the court's "informed discretion." (See United States v. Tucker (1972) 404 U.S. 443, 447; Townsend v. Burke (1948) 334 U.S. 736, 741.) A court that is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record. (See People v. Ruiz (1975) 14 Cal.3d 163, 168.) Because it is unclear to us the extent to which the trial court's sentencing decision was affected by its misunderstanding of its discretion, we remand the matter for the court to revisit the issue of mandatory supervision in light of its discretion and resentence Wright based on proper criteria. (People v. Leon (2016) 243 Cal.App.4th 1003, 1023 [" 'Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.' "].) The trial court shall state the reasons for its decision. (Cal. Rules of Court, rule 4.406(b)(8).) We express no opinion on how the court should exercise its discretion.
In light of our disposition, we need not address Wright's claim her trial counsel rendered ineffective assistance by failing to object to this aspect of the court's sentence.
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to the superior court for resentencing consistent with this opinion.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.