Filed 4/29/14 P. v. Camacho CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038705
(San Benito County
Plaintiff and Respondent, Super. Ct. Nos. CR-10-02356,
CR-11-01069, CR-11-01661, and
v. CR-11-01662)
PABLO CAMACHO,
Defendant and Appellant.
Pablo Martin Camacho was sentenced at the same time in four separate cases: CR-
11-01661 (Case A); CR-11-01069 (Case B), CR 10-02356 (Case C), and CR-11-01662
(Case D). He appeals from the judgments of conviction.1
Defendant raises multiple claims of error and asks this court to correct
unauthorized sentences. We make several sentencing modifications and, as modified,
affirm.
I
Procedural History
In Cases A and B, which were consolidated for trial, a jury found defendant guilty
of assaulting a peace officer (Pen. Code, § 245, subd. (c))2 (Case A, count one), driving
1
Defendant also filed a petition for writ of habeas corpus, which we considered
with the appeal and resolve by separate order.
1
with disregard for safety while evading a pursuing officer (Veh. Code, § 2800.2, subd.
(a)) (Case A, count two), possession of a controlled substance (methamphetamine) for
sale (Health & Saf. Code, § 11378) (Case B, count one), and possession of a device for
injecting or smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a))
(Case B, count two). A jury found the following true: three prior prison term
enhancement allegations (§ 667.5, subd. (b) (Case A), three prior prison term
enhancement allegations (§ 667.5, subd. (b) (Case B), and five prior drug-related felony
conviction allegations (Health & Saf. Code, § 11370.2, subd. (c)) (Case B).
In Case C, defendant pleaded no contest to felony possession of a controlled
substance, namely methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count
one) and possession of a device for smoking a controlled substance (Health & Saf. Code,
§ 11364, subd. (a)) (count two)) and was placed on formal probation in 2011.
Subsequently, defendant was found to have violated probation and sentenced.
In Case D, following a court trial, defendant was found guilty of dissuading a
witness by force or threat (§ 136.1, subd. (c)(1)) (count two), making terrorist threats
(§ 422) (count three), carrying a dirk or dagger (§ 12020, subd. (a)(4)) (count four),
assault by means of force likely to produce great bodily injury (former § 245(a)(1))
(count five), and battery inflicting serious bodily injury (§ 243, subd. (d)) (count six).
The court found the great bodily injury enhancement allegation applicable to count five
(§ 12002.7, subd. (a)) to be true. It also found all the prior prison term enhancement
allegations (§ 667.5, subd. (b)) to be true.
2
All further references are to the Penal Code unless otherwise specified.
2
II
Alleged Trial Errors
A. Consolidation for Trial
On appeal, defendant asserts that the trial court exceeded its authority under
section 954 by consolidating Cases A and B for trial because the charged offenses in the
two cases were not of the same class and there were "no common elements of substantial
importance."
1. Procedural Background
On his pretrial motion for consolidation, the prosecutor told the court that he
anticipated overlapping factual issues. He stated that Case B "involve[d] the
apprehension after the initial crime detailed and charged in [Case A]." He indicated that
the same officer was involved in both cases. Defense counsel objected, stating, "I don't
believe that the defense in [Case B] is going to require that we bring up the facts from
[Case A], and I think the link between the cases is attenuated at best, and we'd ask that
they not be consolidated." The court nevertheless consolidated the cases for jury trial.
2. Governing Law
Section 954 provides in part: "An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses,
under separate counts, and if two or more accusatory pleadings are filed in such cases in
the same court, the court may order them to be consolidated." (Italics added.) "Offenses
committed at different times and places against different victims are, nevertheless,
'connected together in their commission' when there is a 'common element of substantial
importance' among them. [Citations.]" (People v. Matson (1974) 13 Cal.3d 35, 39; see
Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218.)
"The purpose underlying this statute is clear: joint trial 'ordinarily avoids the
increased expenditure of funds and judicial resources which may result if the charges
3
were to be tried in two or more separate trials.' [Citation.] 'A unitary trial requires a
single courtroom, judge, and court attach[és]. Only one group of jurors need serve, and
the expenditure of time for jury voir dire and trial is greatly reduced over that required
were the cases separately tried. In addition, the public is served by the reduced delay on
disposition of criminal charges both in trial and through the appellate process.'
[Citations.] . . . For these and related reasons, consolidation or joinder of charged
offenses 'is the course of action preferred by the law.' [Citation.]" (People v. Soper
(2009) 45 Cal.4th 759, 772.)
"We must evaluate motions for severance and objections to consolidation in light
of the showings then made and the facts then known. [Citations.] The burden of
demonstrating that consolidation or denial of severance was a prejudicial abuse of
discretion is upon him who asserts it; prejudice must be proved, and '[a] bald assertion of
prejudice is not enough.' [Citation.]" (People v. Balderas (1985) 41 Cal.3d 144, 171.)
3. No Prejudicial Abuse of Discretion
It is undisputed that the two informations consolidated for trial did not charge
offenses that were merely different statements of the same offense or were of the same
class. Defendant contends the two sets of crimes were also not "connected together in
their commission" and had "no common elements of substantial importance," therefore,
the trial court had no discretion to consolidate the cases for trial.
The People now argue that evidence of the offenses charged in Case A was
partially admissible on the possession for sale offense charged in Case B. Officer Pena
testified at trial that, at the time defendant was apprehended in a motel room at the
Hollister Inn, the officer believed that defendant might be going for a weapon based on
"his prior history" and deployed a police canine. The defense objected on the ground of
lack of foundation but the objection was overruled because evidence of earlier offenses,
those charged in Case A, had been presented in the consolidated trial. This overruling of
4
an evidentiary objection at trial does not demonstrate that the trial court properly
exercised its discretion when it ruled on the prosecutor's pretrial motion.
In People v. Balderas, supra, 41 Cal.3d 144, the California Supreme Court
determined that "there were substantial judicial benefits to be gained from a consolidated
trial." (Id. at p. 174.) In upholding the trial court's order, the court stated: "The two
criminal episodes had occurred within hours of each other, and the Wanner robbery and
homicide, if prosecution evidence is believed, were essentially an aftermath to events of
the previous evening. The court was informed that there would be common witnesses,
and that proved true. Two of the principal prosecution witnesses . . . related defendant's
admissions to them about both incidents. [One of those witnesses] was also a percipient
witness to Wanner's abduction and helped defendant dispose of evidence of the Wanner
crimes." (Ibid.) The court further noted that the "police conducted a common
investigation of the two incidents, and it was reasonable to assume that there would be
common police witnesses." (Ibid.) It determined: "Under the circumstances, the court
could properly conclude that the beneficial effects of a joint trial outweighed its potential
prejudice." (Ibid.)
In People v. Mendoza (2000) 24 Cal.4th 130, the Supreme Court found the trial
court properly found that the statutory requirements for consolidation were met: "Here,
the close time frame within which the consolidated offenses were committed shows a
continuing course of criminal conduct. The Jung Wang robbery occurred at 4:00 p.m. on
February 5, 1986; the Saiz robberies and kidnappings were committed the next day, at
2:20 a.m.; the commercial burglaries were perpetrated either during the evening after the
Saiz crimes on February 6, or early the next morning; the Litovich robbery, rape, and
murder occurred on the afternoon of February 7, between 2:00 and 3:00 p.m. The Jung
Wang robbery, the commercial burglaries, and the Litovich robbery all involved the
intent to illegally obtain property. In this case, . . . the ' "element of intent to feloniously
5
obtain property runs like a single thread through the various offenses. . . ." [Citations.]' "
(Id. at p. 160.)
At the time of the consolidation motion in this case, the prosecutor made no
showing that the two sets of offenses charged in separate informations, alleged to have
taken place about five days apart, were related to the same transaction or event. It was
not shown that the drug-related charges were the "aftermath" of the earlier crimes of
assaulting a peace officer (§ 245, subd. (c)) and driving with disregard for safety while
evading a pursuing officer (Veh. Code, § 2800.2, subd. (a)), which were charged in Case
A. Although the prosecutor said that the same officer was involved in both cases, he did
not establish that both sets of crimes involved a "common element of substantial
importance." The officer's reason for releasing the police canine dog at the time of
defendant's arrest in the motel room does not satisfy that test. Moreover, this information
was not before the trial court when it ruled on the motion.
Any abuse of discretion in consolidating the informations for trial on the showing
made by the prosecutor did not, however, constitute a miscarriage of justice under the
Watson standard of review. (See People v. Watson (1956) 46 Cal.2d 818, 836; Cal.
Const., art. VI, § 13; see also People v. Saldana (1965) 233 Cal.App.2d 24, 30-31;
People v. Renier (1957) 148 Cal.App.2d 516, 520.) "[A] 'miscarriage of justice' should
be declared only when the court, 'after an examination of the entire cause, including the
evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error." (People v.
Watson, supra, 46 Cal.2d at p. 836.) The test is "based upon reasonable probabilities
rather than upon mere possibilities." (Id. at p. 837.)
At trial, the crimes charged in Case A, assault upon a peace officer (§ 245, subd.
(c)) and driving with disregard for safety while evading a pursuing officer (Veh. Code, §
2800.2, subd. (a)), were shown to have occurred after Officer Hutchinson attempted to
effect a traffic stop of defendant, whom the officer recognized and knew had a felony
6
warrant. Defendant sped away and a police pursuit ensued. The pursuit was called off
for safety reasons after defendant's vehicle struck Officer Pena's vehicle and Sergeant
Richard Uribe tried unsuccessfully to disable defendant's vehicle by ramming it.
Some days later, the police received information that defendant was staying in a
particular motel room and went there to arrest him. When the officers entered the motel
room; defendant was sitting on the bed and Sonya Perez was in its little bathroom area.3
Crystal methamphetamine was scattered across a nightstand, within arm's reach of
defendant. Defendant was arrested for possession of a controlled substance for sale.
Both defendant and Sonya were charged.
Rachel Fraze, a Department of Justice criminologist, testified that she received a
white crystalline solid substance related to defendant from the San Benito County
Sherriff's Office and tested it. The substance itself weighed ".44 grams net" and was
determined to be methamphetamine.
Officer Pena, the prosecution's narcotics investigation expert, testified that .10
gram is a usable amount of methamphetamine and produces effects lasting six to eight
hours. Although Officer Pena gave inconsistent testimony regarding the weight of "a
teener" of methamphetamine and methamphetamine's street value, the officer's
uncontroverted opinion was that defendant possessed the methamphetamine for sale
based upon the amount possessed, the fact that a tenth of a gram is a usable amount, and
his possession of empty baggies and a digital scale. Defendant did not present opposing
expert opinion.
In closing argument, defense counsel maintained that defendant accidently struck
Officer Pena's vehicle and defendant possessed methamphetamine for only his personal
use.
3
It is unclear whether she spells her name Sonya or Sonia but for the sake of clarity
we will consistently refer to her as Sonya.
7
Defendant maintains that "joinder was prejudicial since inflammatory evidence
from the strong assault case likely affected the jury's decision in the weak possession for
sale case." Contrary to defendant's assertions, the evidence in Case A was not likely to
inflame the jury's passions or prejudices against defendant with respect to the drug-
related charges in Case B. The crimes charged in Case A were not especially brutal,
shocking, or gruesome and the evidence was not the type likely to evoke emotional bias
or an irrational response from the jury. No evidence was presented that defendant's
hazardous driving while trying to flee from police resulted in any personal injury. There
was evidence that defendant laughed at Officer Pena and then struck the officer's vehicle
and forced it off the road into the center median's dirt but the officer testified that he was
able to maintain control of his vehicle and slow down. He did not testify that he
sustained any injury.
Further, the evidence underlying both sets of offenses was relatively
straightforward and distinct. (Cf. People v. Soper, supra, 45 Cal.4th at p. 784.) Since
"the consolidated offenses were factually separable," "there was a minimal risk of
confusing the jury or of having the jury consider the commission of one of the joined
crimes as evidence of defendant's commission of another of the joined crimes." (People
v. Mendoza, supra, 24 Cal.4th at p. 163 [rejecting claim that trial court should have
instructed sua sponte that evidence of one crime may not be used as evidence of another
offense].)
Neither is reversal warranted due to the comparative strength of the cases.
Although defendant describes the evidence in Case A as particularly strong and the
evidence in Case B as weak, we do not agree with his characterization. The evidence was
not so imbalanced between the two cases that their consolidation for trial created a danger
of a prejudicial "spillover effect."
Further, the court told the jury: "Do not let bias, sympathy, prejudice or public
opinion influence your opinion." It also instructed: "The fact that a criminal charge has
8
been filed against the Defendant is not evidence that the charge is true. You must not be
biased against the Defendant just because he has been arrested, charged with a crime or
brought to trial." The court explained the presumption of innocence.
Defendant has failed to persuade us that it is reasonably probable that the outcome
of trial would have been more favorable to him had the cases been tried separately and
not consolidated for trial.
4. Consolidation Did Not Deprive Defendant of Due Process
Regardless whether "a trial court's severance or joinder ruling [was] correct at the
time it was made, a reviewing court must reverse the judgment if the 'defendant shows
that joinder actually resulted in "gross unfairness" amounting to a denial of due process.'
(People v. Arias [(1996) 13 Cal.4th 92,] 127 . . . .)" (People v. Mendoza, supra, 24
Cal.4th at p. 162.) Defendant argues that evidence of his "dangerous driving and
intentional assault on Officer Pena likely prejudiced jurors' perceptions of [him]" and the
"weak evidence he intended to sell the methamphetamine was unfairly bolstered by the
strong and prejudicial evidence" in the other case.
As indicated, we disagree with defendant's assessment of the nature of the
evidence in the two cases. The record does not disclose circumstances under which a
jury could not be expected to fairly try both cases. Consolidation did not result in a
"gross unfairness" amounting to a denial of due process.
B. Admission of Allegedly "False Testimony"
Defendant asserts that his conviction of possession of a controlled substance for
sale (Health & Saf. Code, § 11378) must be reversed because there is a reasonable
probability that the conviction was based on "false evidence" that his "stash" of
methamphetamine "was worth $350 when in fact it was worth about $10." He points to
Officer Pena's testimony concerning the value of the methamphetamine seized.
Officer Johnny Pena first explained that methamphetamine is usually sold a half or
a quarter of a gram at a time. When asked the substance's street value, however, Officer
9
Pena indicated that methamphetamine is sold in a smaller weight of "a sixteenth," which
on the street is called a "teener." The prosecutor then asked the officer to estimate the
price of a "[s]ixteenth of a gram." Officer Pena estimated that the price was "[b]etween
$50 and $60." The officer also explained that the term "dime bag" could mean 10 dollars
of a certain drug or it could refer to a coin-sized baggie. He had no guess as to how much
10 dollars worth of crystal methamphetamine would weigh.
On cross-examination, defense counsel asked, "But it's a sixteenth of an ounce, not
a tenth of a gram that's sold?" Officer Pena replied, "Yes." Defense counsel then
inquired, "And you said that's sold for $50 an ounce?" The officer replied, "Depends
where you're buying it. That's an average price." On redirect examination, the
prosecutor asked, "Now, I want to get back to something that you had stated earlier. It
was called a teener. And you said this was one-sixteenth of a gram; is that correct?"
Officer Pena, answered, "Yes." He confirmed that one-sixteenth of a gram was less than
.1 grams and that the "going rate" for a "teener" was "$50 to $60."
Defendant now asserts on appeal that Officer Pena's testimony was false because a
"teener is 1/16 of an ounce, not 1/16 of a gram."4 In support of this assertion, he cites to
various Internet sources. Citing section 1473, subdivision (b)(1), defendant argues that
his conviction must be reversed because it was impacted by the admission of material
false evidence. He also contends that "[t]he prosecutor exploited Pena's false testimony
in closing argument." The prosecutor relied on Officer Pena's testimony to argue that .44
grams of methamphetamine provided "almost four-and-a-half hits" or six or seven
4
The metric equivalent of one ounce (avoirdupois) is 28.349 grams and the
approximate U.S. equivalent of one gram is 0.035 ounce. (Wesbster's Third New
International Dict. (1993 ed.) Measures and Weights table, p. 1399, & Metric System
Table, p. 1424; see Evid. Code, §§ 452, subd. (h), 459.) Thus, a sixteenth of an ounce
(avoirdupois) equals approximately 1.77 grams.
10
"teeners," each with a street value of roughly $50, and suggested that defendant had "a
considerable amount of methamphetamine"
On appeal, the People concede that "[d]uring questioning, the prosecutor exhibited
a misunderstanding about the difference between a sixteenth of an ounce and a sixteenth
of a gram which Officer Pena did not immediately correct, and thus, at two points he
mistakenly testified that a sixteenth of a gram costs approximately $50 to $60."
We must emphasize at the outset that the weight of a "teener" is not a judicially
noticeable fact. (See Evid. Code, §§ 451, subd. (f) ["Facts and propositions of
generalized knowledge that are so universally known that they cannot reasonably be the
subject of dispute "], 452, subds. (g) ["Facts and propositions that are of such common
knowledge within the territorial jurisdiction of the court that they cannot reasonably be
the subject of dispute"] & (h) ["Facts and propositions that are not reasonably subject to
dispute and are capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy"].) Further, the alleged falsity of testimony that a
"teener" is a sixteenth of a gram is not apparent without resorting to inferences or
deductions.
"Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. (People v. Huston (1943) 21 Cal.2d 690, 693.)" (People v.
Maury (2003) 30 Cal.4th 342, 403.) Testimony believed by a trier of fact cannot be
rejected by an appellate court unless it is physically impossible or its falsity is apparent
without resorting to inferences or deductions. (See People v. Maciel (2013) 57 Cal.4th
482, 519; People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another ground
in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
Of course, a criminal defendant can attempt to discredit a prosecution's expert. "A
party may impeach an expert witness by contradiction, i.e., by showing the falsity of any
11
matter upon which the expert based his opinion. This can be done either by cross-
examination of the expert or by calling other witnesses to offer evidence showing the
nonexistence or error in the data upon which the first expert based his opinion. (See
Evid. Code, §§ 721, subd. (a), 780, subd. (i), 801, subd. (b); [citations].)" (Kennemur v.
State of California (1982) 133 Cal.App.3d 907, 922-923.) Defendant's counsel did seek
to discredit Officer Pena by cross-examination.
We are certainly aware that "[u]nder well-established principles of due process,
the prosecution cannot present evidence it knows is false and must correct any falsity of
which it is aware in the evidence it presents, even if the false evidence was not
intentionally submitted. (Giles v. Maryland (1967) 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d
737; [citations].)" (People v. Seaton (2001) 26 Cal.4th 598, 647; see People v. Morrison
(2004) 34 Cal.4th 698, 716-717.) Defendant does not argue and the record before us does
not reflect, however, that the prosecutor knew at the time of trial that a "teener" means a
sixteenth of an ounce.
Defendant forfeited appellate review of any claim that the trial court erroneously
admitted Officer Pena's testimony that "a teener" weighs a sixteenth of a gram by failing
to specifically and timely object at trial. (See Evid. Code, § 353; see also People v.
Valdez (2012) 55 Cal.4th 82, 130 [evidentiary objection not properly asserted below is
not cognizable on appeal].) Section 1473, subdivision (b)(1), and the case authorities
concerning that section, do not aid defendant because the section applies to a petition for
writ of habeas corpus, not to an appeal from a judgment.5 We find no basis for reversal
on appeal based on the allegedly false evidence.
5
Section 1473, subdivision (b)(1), allows a petitioner to seek habeas relief on the
ground that "[f]alse evidence that is substantially material or probative on the issue of
guilt or punishment was introduced against [him] at any hearing or trial relating to his
incarceration." (§ 1473, subd. (b)(1).) "[U]nder the present version of section 1473 it
does not matter why evidence is false or whether any party to the proceeding knew it was
false. So long as some piece of evidence at trial was actually false, and so long as it is
12
C. Alleged Ineffective Assistance of Counsel
Defendant argues that his trial counsel provided ineffective assistance in a couple
of respects.6
1. Governing Law
In Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052] (Strickland),
the United States Supreme Court established a two-part test for evaluating a claim of
ineffective assistance of counsel. "First, the defendant must show that counsel's
performance was deficient." (Id. at p. 687.) "Second, the defendant must show that the
deficient performance prejudiced the defense." (Ibid.)
As to the performance prong, "the defendant must show that counsel's
representation fell below an objective standard of reasonableness." (Id. at p. 688.) "The
proper measure of attorney performance remains simply reasonableness under prevailing
professional norms." (Ibid.)
"Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair
assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time." (Id. at p.
689.) Courts "indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance . . . ." (Ibid.)
reasonably probable that without that evidence the verdict would have been different,
habeas corpus relief is appropriate." (In re Richards (2012) 55 Cal.4th 948, 961.) The
habeas corpus petitioner bears the burden of pleading and proof. (In re Sassounian
(1995) 9 Cal.4th 535, 546-547; see People v. Duvall (1995) 9 Cal.4th 464, 474.)
6
In his reply brief, defendant properly withdraws a third ineffective assistance
claim that was not developed. " '[E]very brief should contain a legal argument with
citation of authorities on the points made. If none is furnished on a particular point, the
court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]"
(People v. Stanley (1995) 10 Cal.4th 764, 793.)
13
As to the prejudice prong, "[i]t is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding." (Id. at p. 693.)
"The defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." (Id. at p. 694.)
"In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel's performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel acted differently. [Citations.]
Instead, Strickland asks whether it is 'reasonably likely' the result would have been
different. [Citation.] This does not require a showing that counsel's actions 'more likely
than not altered the outcome,' but the difference between Strickland's prejudice standard
and a more-probable-than-not standard is slight and matters 'only in the rarest case.'
[Citation.] The likelihood of a different result must be substantial, not just conceivable.
[Citation.]" (Harrington v. Richter (2011) 131 S.Ct. 770, 791-792.)
The U.S. Supreme Court has advised that "[t]he object of an ineffectiveness claim
is not to grade counsel's performance" and "[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should
be followed." (Strickland, supra, 466 U.S. at p. 697.) It is unnecessary to "address both
components of the inquiry if the defendant makes an insufficient showing on one."
(Ibid.)
2. Weight of "Teener"
Defendant urges this court to reverse on the ground that his counsel provided
ineffective assistance of counsel by not objecting to the "false evidence" that a "teener"
weighs a sixteenth of a gram. He maintains that "the record affirmatively discloses
counsel had no rational tactical purpose" for failing to object and "it is reasonably
probable counsel's failure to object impacted the jury's decision . . . ."
14
There is no evidentiary objection of "false evidence" although presumably
evidence that is demonstrably false without resort to inferences or deductions would be
irrelevant and hence inadmissible. (See Evid. Code, §§ 210, 350.) Officer Pena's
testimony that "a teener" refers to a sixteenth of a gram of methamphetamine was not,
however, demonstrably "false evidence" without resort to inferences or deductions. (See
People v. Maciel, supra, 57 Cal.4th at p. 519) In addition, the weight of "a teener" is not
a judicially noticeable fact. (See Evid. Code, §§ 451, subd. (f), 452, subds. (g) & (h).)
Normally, credibility of a witness is a matter for the trier of fact. (See Evid. Code,
§ 780.) "Cross-examination is the principal means by which the believability of a witness
and the truth of his testimony are tested." (Davis v. Alaska (1974) 415 U.S. 308, 316 [94
S.Ct. 1105].) "The [federal] Constitution . . . protects a defendant against a conviction
based on evidence of questionable reliability, not by prohibiting introduction of the
evidence, but by affording the defendant means to persuade the jury that the evidence
should be discounted as unworthy of credit. Constitutional safeguards available to
defendants to counter the State's evidence include the Sixth Amendment rights to counsel
[citation]; compulsory process [citation]; and confrontation plus cross-examination of
witnesses [citation]. Apart from these guarantees, we have recognized, state and federal
statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned
the task of determining the reliability of the evidence presented at trial. [Citation.]"
(Perry v. New Hampshire (2012) 132 S.Ct. 716, 723.) "It is precisely the function of a
judicial proceeding to determine where the truth lies." (Imbler v. Pachtman (1976) 424
U.S. 409, 439 [96 S.Ct. 984] (Conc. opn. of White, J.).)
On the record before us, we cannot conclude that defense counsel provided
ineffective assistance by failing to object to allegedly "false evidence." (See Strickland,
supra, 466 U.S. at pp. 687-688.)
15
3. Failure to Elicit Additional Evidence
Defendant argues that his counsel provided ineffective assistance by failing to
elicit additional evidence showing that he possessed methamphetamine for personal use.
Officer Pena testified that he found a digital scale, which dealers usually carry, and
packaging material, a pouch of empty "small coin baggies." On cross-examination at
trial, defense counsel elicited testimony from Officer Pena that he found a used syringe in
the drawer of the same bedside table on top of which the methamphetamine was found
and a used methamphetamine pipe. Officer Pena also acknowledged that neither a
"pay/owe sheet" nor cash was found in the room. Defendant nevertheless criticizes his
counsel for not asking Officer Pena about a cotton ball and crystal residue found with the
syringe and eliciting the officer's opinion that "the cotton ball was 'common of people
who inject methamphetamine.' " Officer Pena's incident report stated that the officer
located a syringe in the night stand with a plastic container, which contained a cotton ball
and crystal residue, and indicated "[t]his is common of people who inject
methamphetamine with a syringe."
" 'As to whether certain witnesses should have been more rigorously cross-
examined, such matters are normally left to counsel's discretion and rarely implicate
inadequacy of representation.' (People v. Cox (1991) 53 Cal.3d 618, 662.)" (People v.
Williams (1997) 16 Cal.4th 153, 217.) Defense counsel may have reasonably decided
that eliciting additional evidence of personal use from Officer Pena would be
unnecessarily cumulative.
Even assuming that defense counsel should have asked Officer Pena about the
presence of a cotton ball and his opinion whether it was evidence of personal use,
defendant fails to show the requisite prejudice. (See Strickland, supra, 466 U.S. at pp.
693-694, 697; Harrington v. Richter, supra, 131 S.Ct. at pp. 791-792.) There was
already ample evidence of personal methamphetamine use before the jury. Officer Pena
confirmed that someone can both use and sell methamphetamine and "sometimes sellers
16
will use a little bit of their own product." He rejected the possibility "that all that [was]
going on in that room [was] use of methamphetamines and not sales . . . ." The officer
testified: "Users commonly sell to gather more methamphetamine for their own habit,
and that's what I believe was going on." Thus, Pena's opinion took into account the
evidence of personal use and made clear that any use of methamphetamine did not rule
out defendant's possession of methamphetamine for sale. It was Officer Pena's opinion,
based on his experience and training, that defendant possessed methamphetamine to sell,
not simply to use. As to the failure to find any pay/owe sheet, Officer Pena explained
that, because law enforcement used pay/owe sheets to prosecute narcotics dealers, dealers
were not using them as often.
Defendant also complains that defense counsel did not ask Officer Hutchinson
about defendant's statement to a nurse that he had just smoked two bowls. Officer
Hutchinson's supplemental incident report indicated that defendant made that statement
in his presence.
We reject defendant's assertion that his out-of-court statement was admissible as
circumstantial evidence of his state of mind, a nonhearsay purpose.7 While a statement
not offered to prove the truth of the matter asserted is not hearsay (see § 1200, subd. (a)),
defendant's out-of-court statement that he had smoked two bowls tended to prove that he
did not intend to sell the methamphetamine only if his statement was true. (See Evid.
7
We also note that defendant has not shown that asking Officer Hutchinson about
defendant's hearsay statement to the nurse at the hospital following his arrest would have
been within the scope of proper cross-examination. (See Evid. Code, §§ 761, 773, subd.
(a); People v. McClellan (1969) 71 Cal.2d 793, 811 ["Cross-examination, which is
limited to '[matters] within the scope of the direct examination' . . . by Evidence Code,
section 773, 'may be directed to the eliciting of any matter which may tend to overcome
or qualify the effect of the testimony given . . . on direct examination.' [Citation.]"].)
Officer Hutchinson testified mainly about the vehicular pursuit. He was questioned very
briefly about the officers' discovery of methamphetamine and a digital scale in the motel
room where defendant was arrested.
17
Code, §§ 210, 350; cf. People v. Showers (1968) 68 Cal.2d 639, 643 ["False statements
regarding incriminating circumstances constitute evidence which may support an
inference of consciousness of guilt"].) Defendant has not identified any applicable
hearsay exception that would have allowed the admission of his statement for its truth.
(See Evid. Code, §§ 1200 [hearsay rule]; 1220 [a party's out-of-court admission is not
made inadmissible by the hearsay rule when offered against the declarant], see People v.
Gonzales (2011) 52 Cal.4th 254, 292.) An out-of-court statement of a past event is not
admissible under the hearsay rule exception for a statement of the declarant's then
existing state of mind. (Evid. Code, § 1250, subd. (b); Assem. Com. on Judiciary com.,
29 B, Pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1250, p. 281.)
Moreover, as already discussed, Officer Pena's expert opinion regarding
defendant's possession of methamphetamine for sale took into account evidence
suggesting that defendant had been using methamphetamine. Defendant has not
established that his trial counsel rendered ineffective assistance by not eliciting additional
evidence that he possessed methamphetamine for his personal use. (Strickland, supra,
466 U.S. at pp. 687-688, 693-694; Harrington v. Richter, supra, 131 S.Ct. at pp.791-
792.)
D. Alleged Cumulative Prejudice
Defendant asserts that his trial on the charge of possession for sale was
fundamentally unfair because of the cumulative prejudice arising from the trial court's
erroneous consolidation of informations for trial, its improper admission of "false
evidence," and defense counsel's ineffective assistance. We recognize that "a series of
trial errors, though independently harmless, may in some circumstances rise by accretion
to the level of reversible and prejudicial error. [Citations.]" (People v. Hill (1998) 17
Cal.4th 800, 844-845.) Here, there is no prejudice to cumulate. "A defendant is entitled
to a fair trial, not a perfect one. (See People v. Miranda (1987) 44 Cal.3d 57, 123 . . . .)"
(People v. Mincey (1992) 2 Cal.4th 408, 454.)
18
III
Sentencing Errors
On appeal, defendant claims that the trial court imposed an unauthorized sentence
in several respects.8 "A claim that a sentence is unauthorized may be raised for the first
time on appeal, and is subject to correction whenever the error comes to the attention of
the reviewing court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 . . . .)" (People
v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn.7.)
A. Felony Assault upon a Peace Officer
At the time of sentencing, the trial court stated that it was imposing "the upper
term of eight years in state prison" on defendant's conviction of assault upon a peace
officer in violation of section 245, subdivision (c) (Case A, count one). Defendant asserts
that the court erred in imposing an eight-year term as the maximum punishment for that
offense. The People properly concede that the upper term for the crime was five years.
(See § 245, subd. (c).) Accordingly, the sentence must be corrected.
B. Enhancement Term for Personal Infliction of Great Bodily Injury
At the time of sentencing, the trial court imposed a consecutive one-year term
(equivalent to one-third the midterm) for committing assault by means of force likely to
produce great bodily injury in violation of former section 245, subdivision (a)(1) (Case
D, count five) plus a three-year enhancement term for personal infliction of great bodily
injury (§ 12022.7, subd. (a)).9 Defendant does not challenge the subordinate term
imposed for that assault but he maintains that the attached enhancement term must be
reduced to one year because it is part of the subordinate sentence.
8
In his reply brief, defendant withdraws a fourth claim of sentencing error.
9
Section 12022.7, subdivision (a), provides: "Any person who personally inflicts
great bodily injury on any person other than an accomplice in the commission of a felony
or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three years."
19
The People concede that defendant is correct and we agree. Under California law,
"[t]he subordinate term for each consecutive offense shall consist of one-third of the
middle term of imprisonment prescribed for each other felony conviction for which a
consecutive term of imprisonment is imposed, and shall include one-third of the term
imposed for any specific enhancements applicable to those subordinate offenses."
(§ 1170.1, subd. (a).) Accordingly, the enhancement term applicable to the subordinate
assault offense must be reduced to one year (one-third of a three-year term).
C. Section 654
The trial court imposed a consecutive term of one year (one-third of the midterm)
for dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (Case D, count two) and
a consecutive term of eight month (one-third of the midterm) for making criminal threats
(§ 422) (Case D, count three). Defendant contends that the trial court violated section
654 by punishing both offenses since the crimes involved the same act, the same victim,
and the same objective. The People agree.
Don Magnuson, a City of Hollister police officer, testified that at approximately
1:00 in the afternoon on January 11, 2011, he responded to call regarding a disturbance
between defendant and Sonya Perez. After defendant was contacted, Officer Magnuson
searched defendant, finding a knife concealed in defendant's left jacket pocket; the officer
then questioned defendant about the reported disturbance. The officer also walked
around the area from which defendant had come to search for the backpack that
reportedly had been taken. Defendant was arrested.
Raymond Celano, a City of Hollister police officer, testified that he received a
dispatch at approximately 8:20 p.m. on January 11, 2011 and spoke with Sonya Perez in
front of a Jack in the Box. Sonya told him that defendant was following her and earlier in
the day defendant had taken her purse from her. Sonya seemed scared for her life; she
was crying and upset and she did not want to be left alone. Officer Celano searched the
area for defendant but he was unable to find him. Sonya left another call for the officer at
20
approximately 11:23 p.m. asking for him to contact her. The officer went to Sonya's
residence and spoke to her in person. Sonya provided Officer Celano with a copy of her
voice mail messages.
Defendant had left a series of audio cell phone messages for Sonya. In his first
message, defendant stated in part, "Don't call the cops; I'll fucking get you." The second
message was inaudible. In his third message, defendant said, "You had your chance." In
the fourth message, defendant said, "You need to answer your phone fucker." In the
audible part of the fifth message, defendant stated, "You took off with the cops from Jack
in the Box."
In closing argument, the prosecutor considered the messages proof of counts two
and three, dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) and making
criminal threats (§ 422). He pointed to the warning, "Don't call the cops; I'll fucking get
you."
Section 654, subdivision (a), provides in pertinent part: "An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision." "Whether a course
of criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor." (Neal v. State
of California (1961) 55 Cal.2d 11, 19; but see People v. Correa (2012) 54 Cal.4th 331,
334 [holding that section 654 does not bar multiple punishment for multiple violations of
the same criminal statute and disapproving contrary dictum in Neal v. State of
California].)
"Our case law has found multiple criminal objectives to be a predicate for multiple
punishment only in circumstances that involve, or arguably involve, multiple acts. The
rule does not apply where . . . the multiple convictions at issue were indisputably based
upon a single act. The rule was not intended to permit multiple punishment in such cases
21
because it would violate the plain language of section 654." (People v. Mesa (2012) 54
Cal.4th 191, 199; see People v. Kramer (2002) 29 Cal.4th 720, 722 [when a single act
constitutes more than one crime, section 654 permits multiple convictions but not
multiple punishment].) "Whether multiple convictions are based upon a single act is
determined by examining the facts of the case." (People v. Mesa, supra, 54 Cal.4th at p.
196.)
In People v. Mesa, supra, 54 Cal.4th 191, the Supreme Court approvingly cited
People v. Mendoza (1997) 59 Cal.App.4th 1333: "The argument that a defendant could
be punished twice for a single act if the defendant harbored multiple criminal objectives
was rejected in People v. Mendoza (1997) 59 Cal.App.4th 1333 . . . . There, the court
held that the defendant could not be punished for making a terrorist threat and for
dissuading a witness based upon a single statement to the victim." (People v. Mesa,
supra, 54 Cal.4th at p. 199.) Here, the prosecution focused on defendant's statement,
directing Sonya not to call police and warning her that he would "fucking get" her, as the
basis for both offenses. The trial court should have stayed the sentence on the conviction
for making terrorist threats pursuant to section 654.
DISPOSITION
We modify the judgment in Case CR-11-01661 to reflect an upper term of five
years on the conviction of assault upon a peace officer (§ 245, subd. (c)) (count one). We
modify the judgment in Case CR-11-01662 to reflect a subordinate enhancement term of
one year (§ 12022.7, subd. (a)) applicable to the conviction of assault by means likely to
produce great bodily injury (former § 245, subd. (a)(1)) (count five) and a stay of the
sentence imposed on the conviction of terrorist threats (§ 422) (count three) pursuant to
Penal Code section 654. With the modifications, the judgments in the four cases are
affirmed.
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________________________________
ELIA, Acting P. J.
WE CONCUR:
______________________________
MIHARA, J.
______________________________
GROVER, J.
23