Filed 3/30/15 P. v. Brace CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040271
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1242970)
v.
GEORGE ALDEN BRACE,
Defendant and Appellant.
I. INTRODUCTION
Defendant George Alden Brace appeals after a jury convicted him of receiving
stolen property (Pen. Code, § 496, subd. (a))1 and possession for sale of a controlled
substance (Health & Saf. Code, § 11378). The trial court found true allegations that
defendant had served two prior prison terms (§ 667.5, subd. (b)) and had a prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to a prison term of
six years four months.
On appeal, defendant contends his trial counsel was ineffective for failing to retain
an expert in drug possession and sales, claiming that expert testimony would have
supported the defense theory that defendant was only guilty of simple possession, not
1
All further statutory references are to the Penal Code unless otherwise indicated.
possession for sale. We find no merit to this claim, and we will therefore affirm the
judgment.
Appellate counsel has filed a petition for writ of habeas corpus, which this court
ordered considered with the appeal. We have disposed of the habeas petition by separate
order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
II. BACKGROUND
A. Evidence Relating to Receiving Stolen Property Charge
In October of 2012, Rebecca Maxim lived in a mobile home on Lisa Lane in San
Jose. Two roommates paid rent to Maxim: Chris Johnson and Raymundo Hernandez.
For about two months, defendant had also been staying there, “on and off.” At some
point, Maxim had seen one of defendant’s bank statements, which showed that he had
received $78,000 on September 7, 2012. Although defendant did not pay rent to Maxim,
at some point in October of 2012, defendant had given Maxim some money.
Maxim had been collecting Barbie dolls for 26 years. She owned about 60 Barbie
dolls, all in their original packaging and in mint condition. The dolls were valued at $70
to $1,000 each. In October of 2012, Maxim needed money and therefore decided to sell
the dolls. She did an inventory of the dolls in preparation for selling them, and
discovered that some were missing.
On October 13, 2012, Maxim called the police and provided them with a list of the
missing dolls. Police subsequently recovered five of the missing dolls from a storage
locker rented by defendant.
B. Evidence Relating to Possession For Sale Charge
San Jose Police Officer Gary Petrakovitz contacted defendant at Maxim’s
residence on October 13, 2012. Defendant’s speech was rapid, indicating he was either
nervous or under the influence. Officer Petrakovitz observed defendant’s eyelids flutter
when defendant closed his eyes, which suggested defendant was under the influence.
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Officer Petrakovitz searched defendant’s vehicle, which was parked in the carport
of Maxim’s residence with the driver’s window down and the doors unlocked. In a
pocket in the driver’s side door, Officer Petrakovitz found three Ziplock baggies
containing a white crystalline substance. One of the baggies was blue; the second had
“some red and some yellow on it;” and the third was “clear with a little black [Batman]
design on it.” In the back seat of defendant’s vehicle, Officer Petrakovitz found a plastic
container, which contained four more baggies containing the same substance. There were
also 16 clean, unused baggies in the container.
Officer Petrakovitz arrested defendant. He found a little over $500 in cash on
defendant, but he allowed defendant to keep the money because he did not know if it was
“obtained legally or not.” Defendant had provided evidence that he had a bank account
with money in it.
A criminalist tested the baggies containing the white substance and determined the
substance was methamphetamine. The criminalist weighed the methamphetamine from
one of the baggies; it weighed 0.99 grams. The gross weight of the other six baggies was
5.84 grams.
Officer Petrakovitz believed defendant was involved in narcotics sales. In his
experience, most users would have only one or two baggies and a small quantity, such as
one-quarter of a gram. Not many methamphetamine users have “the discipline or desire”
to hold onto large quantities of methamphetamine. It is hard to obtain methamphetamine
and thus users generally smoke what they have. However, Officer Petrakovitz
acknowledged that most sellers are also users.
According to Officer Petrakovitz, the best evidence of possession for sale is an
actual sale. Other indicia of possession for sale include the quantity, the packaging
method, the presence of extra packaging material, possession of a large amount of cash,
and possession of a scale.
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Santa Clara Police Officer Travis Niesen was an expert in “possessing narcotics
for sale.” In determining whether methamphetamine is possessed for sale, he looks at the
totality of the circumstances. Indicia of sales include pay-owe sheets, empty baggies, and
cash. It is not common for users to have empty baggies, but it is very common for
sellers.
Officer Niesen was given a hypothetical scenario: a vehicle with seven baggies of
methamphetamine and a container of 15 unused baggies. He would consider that a
narcotics sales case, because it is not common for a user to have seven individual
baggies, but it would be common for a seller. The presence of $500 cash on hand would
also indicate the methamphetamine was possessed for sale: the person might be on his or
her way to make a large purchase, or the person might have just made some sales.
Officer Niesen had seen dealers who had baggies of methamphetamine in different
areas of a car. A person might put the baggies in different places to make it harder to
find, or simply because the person is disorganized.
Officer Niesen agreed that a methamphetamine user could carry small plastic bags
and that it was possible the methamphetamine was owned by more than one person. He
would not think it was significant if the methamphetamine was packaged in different
amounts. The individual packaging was the more important factor. He agreed it was
possible that methamphetamine packaged in different size and different color baggies
came from different sources.
C. Defense Evidence
Johnson, one of Maxim’s roommates, testified that Maxim had feelings toward
defendant in October of 2012. Defendant did not reciprocate those feelings, and Maxim
had become upset the night before defendant’s arrest, because defendant had brought a
female friend over.
Defendant testified he had received two large lump sum settlements for back pay
within the year before his arrest: he had received $74,000 in July or August of 2012, and
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he had received $34,000 in December of 2011. He also received almost $3,000 per
month from the government.
Defendant testified that he had purchased the Barbie dolls found in his storage unit
from a woman who rented the storage unit next to his. He wanted to help the woman out
financially, and he thought the dolls would make a “cool” present for his niece. It was a
coincidence that the dolls were the same as some of the dolls missing from Maxim’s
collection.
Defendant admitted that he had been under the influence of methamphetamine at
the time his car was searched. He also admitted that the methamphetamine found in his
car belonged to him, but he denied intending to sell it. He had enough money that he did
not have to buy just a little methamphetamine at a time. When he found some
methamphetamine that was “okay,” he would say, “how much you got, give me all of it.”
He kept some of the methamphetamine in a container as a means of rationing it, so it
would last longer and be less dangerous. If he did not do so, he would not have enough
self-control to keep from using it all up.
Defendant explained that he had not purchased all seven baggies of
methamphetamine at the same time. He had purchased three or four baggies from one
person, the blue baggie from another person, the baggie with the Batman design from
another person, and another baggie from yet another person.
Defendant explained that he had $508 in cash on him at the time of his arrest
because he had just withdrawn $500 from an ATM machine. He had withdrawn the
money because he was going to visit his girlfriend in Sacramento. He claimed the ATM
receipt was in his property at the time of his arrest.
D. Charges, Verdicts, and Sentence
Defendant was charged with receiving stolen property (§ 496, subd. (a)) and
possession for sale of a controlled substance (Health & Saf. Code, § 11378). The
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information alleged that defendant had served two prior prison terms (§ 667.5, subd. (b))
and had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
The jury convicted defendant of both charged offenses. Defendant admitted the
prior conviction allegations. The trial court sentenced him to a prison term of six years
four months.
III. DISCUSSION
Defendant contends his trial counsel was ineffective for failing to retain an expert
in drug possession and sales, claiming that expert testimony would have supported the
defense theory that defendant was only guilty of simple possession, not possession for
sale.
A. Standards for Ineffective Assistance of Counsel Claims
“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears
the burden of demonstrating, first, that counsel’s performance was deficient because it
“fell below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.”
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966
(Lopez); see Strickland v. Washington (1984) 466 U.S. 668.)
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“Criminal defense counsel has the duty to investigate carefully all defenses of fact
and of law that may be available to the defendant. [Citation.]” (In re Hill (2011) 198
Cal.App.4th 1008, 1016-1017 (Hill).) A defendant can “ ‘reasonably expect that in the
course of representation his [or her] counsel will undertake only those actions that a
reasonably competent attorney would undertake,’ ” and that “ ‘before counsel undertakes
to act at all he [or she] will make a rational and informed decision on strategy and tactics
founded on adequate investigation and preparation. [Citations.]’ ” (Id. at p. 1016.)
B. Analysis
Defendant notes that failure to consult an expert witness may constitute ineffective
assistance of counsel. He discusses Hill, supra, 198 Cal.App.4th 1008, in which the
appellate court granted habeas relief after determining that the defendant’s trial counsel
had rendered ineffective assistance by failing to retain a medical expert in a child
molestation case. In contrast to Hill, where the defendant presented supporting
declarations in a habeas petition—including a declaration from a possible medical
expert—here, nothing in the appellate record shows that defendant’s trial attorney “could
have presented any favorable expert testimony.” (People v. Datt (2010) 185 Cal.App.4th
942, 952; see also People v. Bolin (1998) 18 Cal.4th 297, 334 [“The record does not
establish defense experts would have provided exculpatory evidence if called, and we
decline to speculate in that regard . . . .”].)
Even assuming that favorable expert testimony was available, defendant has not
shown that the decision not to call an expert at trial was not rational or informed.
Defendant’s trial counsel may have determined that he could effectively cross-examine
the prosecution’s expert and the arresting officer and make an effective argument to the
jury based on the evidence at trial. While “[c]riminal cases will arise where the only
reasonable and available defense strategy requires consultation with experts or
introduction of expert evidence,” there are “ ‘countless ways to provide effective
assistance in any given case. . . .’ [Citation.] Rare are the situations in which the ‘wide
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latitude counsel must have in making tactical decisions’ will be limited to any one
technique or approach. [Citation.]” (Harrington v. Richter (2011) 562 U.S. 86, 106
(Richter).) “In many instances cross-examination will be sufficient to expose defects in
an expert’s presentation. When defense counsel does not have a solid case, the best
strategy can be to say that there is too much doubt about the State’s theory for a jury to
convict.” (Id. at p. 111.)
In the instant case, the appellate record shows that defendant’s trial counsel was
effective in utilizing cross-examination to elicit weaknesses in the prosecution’s case and
create reasonable doubt for the jury. (See Richter, supra, 562 U.S. at p. 111 [“defense
counsel elicited concessions from the State’s experts and was able to draw attention to
weaknesses in their conclusions”].)
First, during his cross-examination of Maxim, defendant’s trial counsel elicited the
fact that a month before defendant’s arrest, in September of 2012, defendant had received
$78,000—a fact that tended to show defendant did not need to sell methamphetamine for
money and that defendant could have afforded to buy seven individual baggies of
methamphetamine for himself. Defendant’s trial counsel also elicited from Maxim the
fact that defendant frequently used methamphetamine, to show that defendant was only a
user, not a seller.
Defendant’s trial counsel also effectively cross-examined Officer Petrakovitz, who
had testified that not many methamphetamine users have “the discipline or desire” to
hold onto large quantities of methamphetamine. Defendant’s trial counsel pointed out
that Officer Petrakovitz had also testified that methamphetamine sellers are also generally
methamphetamine users, and that his testimony was therefore self-contradictory.
Defendant’s trial counsel further elicited from Officer Petrakovitz the fact that the officer
had allowed defendant to keep the over $500 in cash that defendant had in his possession
because defendant had provided proof he had a bank account with money in it. Finally,
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through cross-examination, Officer Petrakovitz acknowledged that no measuring device
was found with defendant and that methamphetamine users often carry Ziplock baggies.
During cross-examination of the prosecution’s expert, Officer Niesen, defendant’s
trial counsel elicited the fact that no pay-owe sheets or measuring devices—both common
indicia of sales—were found. He elicited Officer Niesen’s admission that a user could
carry small baggies to keep his or her methamphetamine in. Officer Niesen also admitted
that different sizes and colors of baggies can indicate that methamphetamine came from
difference sources.
Defendant’s trial counsel also put on affirmative defense evidence. He put
defendant on the stand and elicited defendant’s testimony that he possessed the
methamphetamine for personal use, not for sale. Defendant’s trial counsel further elicited
evidence regarding defendant’s income and defendant’s assets.
Finally, during argument to the jury, defendant’s trial counsel emphasized the
contradictions in Officer Petrakovitz’s testimony, questioned whether a
methamphetamine seller would leave methamphetamine in an unlocked car with the
window down, noted that the prosecution failed to introduce any evidence as to the
weight of the methamphetamine in six of the seven baggies, and argued that the different
colors and sizes of packaging showed that defendant had purchased small amounts of
methamphetamine from various sellers for personal use.
In sum, on this record, defendant has failed to overcome the presumption that
“ ‘ “counsel’s performance fell within the wide range of professional competence and
that counsel’s actions and inactions [were] a matter of sound trial strategy.” ’ ” (Lopez,
supra, 42 Cal.4th at p. 966.) We therefore conclude defendant has not established that
his trial counsel was ineffective.
IV. DISPOSITION
The judgment is affirmed.
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___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MIHARA, J.
__________________________
GROVER, J.