People v. Ramos CA2/6

Filed 3/22/22 P. v. Ramos CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B317222
(Super. Ct. No. CRF59472)
Plaintiff and Respondent, (Tuolumne County)

v.

HECTOR MANUEL RAMOS,

Defendant and Appellant.

Hector Manuel Ramos appeals from the judgment entered
after a jury convicted him of conspiracy to furnish a controlled
substance (methamphetamine) to a person confined in prison.
(Pen. Code, §§ 182, subd. (a)(1), 4573.9, subd. (a).)1 He was
convicted in Tuolumne County Superior Court, and the appeal
was pending in the Fifth Appellate District. By an order filed on
December 20, 2021, the Supreme Court transferred the appeal to
this court.

All statutory references are to the Penal Code unless
1

otherwise stated.
 When he committed the present offense, appellant was
confined in prison on a prior 2018 conviction of possession for sale
of a controlled substance (the prior 2018 conviction). The trial
court found true a 1992 residential burglary strike within the
meaning of California’s “Three Strikes” law. (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d).) It sentenced appellant to the upper
term of six years, doubled to twelve years because of the strike.
It ordered that the sentence be served consecutively to the prison
sentence for the prior 2018 conviction.
Appellant contends: (1) as a matter of law, he could not be
convicted of the present offense; (2) the trial court erred in
reading to the jury the charged offense as stated in the
information; (3) the court committed reversible error by
instructing the jury on the inapplicable theory of aiding and
abetting; (4) the evidence is insufficient to support the conviction;
(5) the court abused its discretion in denying his motion to
dismiss the strike; (6) the court failed to exercise its discretion in
selecting the six-year upper term; (7) if the court exercised
discretion, it abused its discretion in not imposing the lower or
middle term; (8) he was denied his constitutional right to
effective assistance of counsel; and (9) the court failed to exercise
discretion whether to run the 12-year prison sentence for the
present offense consecutively to or concurrently with the prison
sentence for the prior 2018 conviction.
Only the ninth contention has merit. We remand the
matter to the trial court with directions to exercise its discretion
whether to run the 12-year prison sentence for the present
offense concurrently with or consecutively to the prison sentence
for the prior 2018 conviction. In all other respects, we affirm.

2
 Facts
Bryce Klein is a correctional officer at the Sierra
Conservation Center, where appellant was incarcerated on the
prior 2018 conviction. Klein learned that a greeting card mailed
to another inmate, Anthony Camacho, had been intercepted by
prison officials on September 21, 2018. The card tested positive
for methamphetamine. Camacho and appellant resided in dorm
15, which contained 32 beds.
The card’s envelope had a fictitious return address
showing that it had been mailed by Letty Hernandez who lived in
La Puente. Camacho had no connection to La Puente. Four
other persons in dorm 15 had a connection to that area. One of
the persons was appellant. He had a girlfriend, Destiny
Magallon, who lived there. While in prison, appellant had made
phone calls to Magallon in La Puente. He was the only one of the
four persons in dorm 15 who had made telephone calls to the area
“that were relevant to [Officer Klein’s] investigation.”
Camacho’s incoming mail was diverted to Officer Klein. On
November 20, 2018, Klein received a second greeting card
addressed to Camacho. It tested positive for methamphetamine.
The card’s envelope had a fictitious return address showing that
it had been mailed by Rosa Lopez who lived in La Puente. The
return addresses on the envelopes for both cards were about a
mile away from where Magallon lived. Both envelopes bore a
Santa Ana postmark.
Officer Klein testified: Inmates refer to
methamphetamine-soaked cards as “‘happy cards.’” “Patterns is
another [term] that is used” because “when the drug is soaked
onto the paper, it will create a certain pattern.” Such cards are
“normally cut up into approximately half[-]inch squares and then

3
sold to the inmate population.” An inmate consumes the
methamphetamine by sucking or smoking the card, and there “is
a process where it can be boiled out.”
Officer Klein continued: When a “happy card” is going to be
sent to an inmate through the mail, the inmate “will usually talk
to a friend or associate” in prison and “use that individual's name
[as the addressee], so if [the drug is] detected [by prison officials
and] we look into the [associate’s] name, there is no connection
back to the original person. And it is just an open investigation
with nowhere to go.” The person mailing the card will put “[a]
fictitious name and [return] address” on the envelope to
“protect . . . the sender from getting caught.”
The jury listened to recordings of telephone conversations
between Magallon and appellant while he was in prison. On
August 31, 2018, appellant said, “You need to . . . stop putting
that word . . . happy cards in there.” On September 9, 2018, 12
days before prison officials intercepted the first card, appellant
asked if Magallon had received his letter “[a]bout those patterns.”
Magallon replied, “No.” Appellant asked her if she “could send
two patterns.” Magallon answered, “Yeah.” Appellant continued,
“I shot you an address of somebody in my dorm if you could do it
fast.”
On September 24, 2018, three days after the interception of
the first card, Magallon told appellant, “I sent that one card you
told me to send to your Bunkie . . . . But I sent one, I'm gonna
send you another card today but it’s just a regular card from me.”
Officer Klein explained that “regular card” means “[a] standard
greeting card” without drugs on it. “Bunkie” refers to a fellow
inmate “[l]iving within the same dorm, usually.”

4
 On September 27, 2018, appellant complained to Magallon
that he had not received “the patterns you sent.” On October 5,
2018, appellant asked, “Hey, did you send those, those
patterns? . . . The patterns I had asked you[?]” Magallon replied,
“Yeah, I told you I did. . . . I sent them along the first time I sent
you your card.” Appellant responded, “Yeah, nothing ever
happened, like nothing ever came through.” At the end of the
conversation, appellant said, “Send the pattern in homeboy[’]s
name.”
Appellant Could Lawfully Be Convicted of
Conspiracy to Commit a Violation of Section 4573.9
“The necessary elements of a criminal conspiracy are: (1)
an agreement between two or more persons; (2) with the specific
intent to agree to commit a public offense; (3) with the further
specific intent to commit that offense; and (4) an overt act
committed by one or more of the parties for the purpose of
accomplishing the object of the agreement or conspiracy.” (People
v. Liu (1996) 46 Cal.App.4th 1119, 1128 (Liu).) Appellant was
convicted of conspiracy to violate section 4573.9, i.e., conspiracy
to furnish a controlled substance to a prison inmate. (§§ 182,
subd. (a)(1), 4573.9.) Appellant contends that, as a matter of law,
he could not lawfully be convicted of this offense because (1) the
alleged conspiracy involved only himself and Magallon, and (2) he
was the prison inmate to whom the controlled substance was
intended to be furnished.
Section 4573.9, subdivision (a) provides that “any person,
other than a person held in custody,” is guilty of violating this
section if he furnishes a controlled substance “to any person held
in custody in any state prison.” (Italics added.) Because
appellant was in custody, he could not be convicted of violating

5
section 4573.9. But in appropriate circumstances he could be
convicted of conspiracy to violate section 4573.9. “Although the
increased penalty for the substantive offense of in-prison sale,
etc., of controlled substances is restricted to noninmates, nothing
in the legislative history of section 4573.9 or in the overall
statutory scheme suggests the Legislature intended to exempt
from this increased penalty those inmates who actively join with
noninmates in a criminal conspiracy to introduce controlled
substances into prison. To hold otherwise would lead to the
absurd result of an incarcerated drug kingpin, using noninmate
‘mules’ to smuggle into prison contraband that is then sold to
other inmates in a profit-making business enterprise, and yet
[the kingpin would] escap[e] the increased penalties to which the
‘mules,’ who operate at his or her direction, are subject.” (People
v. Lee (2006) 136 Cal.App.4th 522, 537-538 (Lee).)
Appellant maintains that, unlike the drug kingpin in the
above example, he could not be convicted of conspiracy to violate
section 4573.9 because he and Magallon “were not working with
anyone else, and they did not intend to distribute drugs to other
inmates.” “There is no significant distinction, therefore, between
appellant and the person who buys drugs on the street. . . . The
fact that the drugs, in this case, enter a penal institution, is a
distinction without a difference.” “The transaction between
appellant and [Magallon] constituted a buyer-seller relationship
rather than a conspiracy.” “Appellant was unlawfully convicted
of conspiracy to furnish drugs to himself . . . .”
Appellant relies on the following federal court rule: “A
conspiracy is not merely an agreement. It is an agreement with a
particular kind of object—an agreement to commit a crime.
When the sale of some commodity, such as illegal drugs, is the

6
substantive crime, the sale agreement itself cannot be the
conspiracy, for it has no separate criminal object. What is
required for conspiracy in such a case is an agreement to commit
some other crime beyond the crime constituted by the [sale]
agreement itself.” (United States v. Lechuga (7th Cir. 1993) 994
F.2d 346, 349 (Lechuga).) “In Lechuga, the court found that as
long as the defendants were individually on opposite sides of the
sale—one was buying alone and one was selling alone—they
could not have conspired together to distribute cocaine.
Lechuga stands for the proposition that mere evidence of one sale
of narcotics, without more, is inadequate to support a conviction
of the buyer and seller for conspiracy to distribute narcotics.”
(United States v. Herrera (7th Cir. 1995) 54 F.3d 348, 353.)
“Were the rule otherwise, every narcotic sale would constitute
a conspiracy.” (United States v. Lennick (9th Cir. 1994) 18 F.3d
814, 819.)
The Lechuga rule does not shield appellant from liability
for conspiracy to violate section 4573.9. The rule does not apply
where a third party is involved. It is reasonable to infer that
appellant and Magallon agreed to furnish methamphetamine to a
third-party – appellant’s bunkmate, Camacho – with the
understanding that Camacho would turn the drugs over to
appellant. Moreover, insofar as the agreement involved
Camacho, it was in effect “an agreement to commit some other
crime [i.e., furnishing methamphetamine to Camacho through
the mail,] beyond the crime constituted by the agreement itself
[i.e., furnishing methamphetamine to appellant].” (Lechuga,
supra, 994 F.2d at p. 349.)

7
 Court’s Reading of Information to Jury
The criminal complaint against appellant was deemed to be
an information. Immediately prior to voir dire, the trial court
read to the jury the charge as stated in the information. The
court said, “[T]he complaint alleges that . . . [appellant] and a
woman named Destiny Magallon . . . did unlawfully conspire
together with another person and persons whose identity is
unknown to commit the crime of furnishing controlled substances
to a person in custody in prison.” Appellant did not object. He
argues, “The trial court misrepresented the charge alleged
against appellant and inadvertently created the misperception
that appellant and [Magallon] were part of a broader conspiracy
to furnish drugs to a person, or people, in custody in state
prison.”
The trial court did not misrepresent the charge. It merely
read the charge as stated in the information. Moreover,
appellant’s argument is forfeited because he failed to object in the
trial court. (See People v. Wader (1993) 5 Cal.4th 610, 646 [by not
objecting, defendant forfeited claim that the trial court had
erroneously read information to the jury; “[i]n any event, the
reading of the information could not have influenced the jury,
and was therefore harmless under any standard”].)
Aiding and Abetting Instruction
Although appellant was charged with conspiracy, the trial
court instructed the jury on both conspiracy and aiding and
abetting. Appellant claims that the trial court committed
reversible error in instructing on the inapplicable theory of aiding
and abetting. “Giving an instruction that is correct as to the law
but irrelevant or inapplicable is error. [Citation.] Nonetheless,
giving an irrelevant or inapplicable instruction is generally ‘“only

8
a technical error which does not constitute ground for reversal.”’”
(People v. Cross (2008) 45 Cal.4th 58, 67.)
“[W]hen one of the theories presented to a jury is factually
inadequate, such as a theory that, while legally correct, has no
application to the facts of the case, we . . . will affirm ‘unless a
review of the entire record affirmatively demonstrates a
reasonable probability that the jury in fact found the defendant
guilty solely on the unsupported theory.’” (People v. Perez (2005)
35 Cal.4th 1219, 1233.) There is no reasonable probability that,
based solely on an aiding and abetting theory, the jury found
appellant guilty of conspiracy to commit a violation of section
4573.9. We assume that the jury disregarded the instruction on
aiding and abetting. The jury was instructed: “Some of these
instructions may not apply, depending on your findings about the
facts of the case. After you have decided what the facts are,
follow the instructions that do apply to the facts as you find
them.”
Sufficiency of the Evidence
Useable Amount of Methamphetamine
Appellant contends that the evidence is insufficient to
prove an element of the conspiracy conviction – the card mailed
by Magallon contained a usable amount of methamphetamine.
The jury was instructed that, to constitute a violation of section
4573.9, the furnished controlled substance must be a usable
amount. (See ante, at pp. 7-8, fn. 2.) But appellant was not
convicted of violating section 4573.9. He was convicted of
conspiracy to violate the statute. The jury was instructed that,
for appellant to be guilty of conspiracy, it must find that he
“intended to agree and did agree with [Magallon] to commit the
crime of a non-confined person furnishing a controlled substance

9
to a confined person.” In other words, appellant must have
intended to furnish a usable amount of methamphetamine. The
People were not required to prove that Magallon actually
furnished a useable amount. Appellant acknowledges that
“‘[c]ompletion of the crime of conspiracy does not require that the
object of the conspiracy be accomplished, or even that it be
possible to accomplish it.’” (See Liu, supra, 46 Cal.App.4th at pp.
1130-1131.)
We “‘must review the whole record in the light most
favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) “‘[W]e
presume every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence.’” (People v.
Wilson (2008) 44 Cal.4th 758, 806.)
The jury was instructed: “A usable amount is a quantity
that is enough to be used by someone as a controlled substance.
Useless traces or debris are not useable amounts. On the other
hand, a usable amount does not have to be enough, in either
amount or strength, to affect the user.”
Substantial evidence supports the jury’s finding that
appellant intended to agree with Magallon, and did agree, to
furnish a usable amount of methamphetamine. A criminalist
testified that the cards mailed to Camacho contained
methamphetamine. Officer Klein opined without objection that
the two cards contained usable amounts of methamphetamine.
The mailing of the cards would have been pointless had appellant

10
and Magallon not intended to furnish a usable amount of
methamphetamine.
Conspiracy to Furnish Controlled Substance to Inmate
Appellant maintains that “[t]he evidence . . . was
insufficient to find, beyond a reasonable doubt, that [he] entered
into a conspiracy with [Magallon] to furnish drugs to a person in
custody in prison.” Appellant claims that “there was no reliable
evidence that [his] use of the word ‘pattern’ referred to a card
soaked in methamphetamine.” But Officer Klein testified that
the word is used by inmates to refer to such a card because “when
the drug is soaked onto the paper, it will create a certain
pattern.”
Appellant argues that “[he] gave [Magallon] the address ‘of
somebody in [his] dorm,’ but there was no direct evidence that it
was Anthony Camacho’s address that he gave her, or that the
cards addressed to Camacho came from [Magallon].” The lack of
direct evidence does not detract from the sufficiency of the
evidence. “[S]ubstantial evidence includes circumstantial
evidence and the reasonable inferences the evidence allows.”
(People v. Tabb (2009) 170 Cal.App.4th 1142, 1152.)
“Circumstantial evidence may be sufficient to connect a
defendant with the crime and to prove his guilt beyond a
reasonable doubt.” (People v. Pierce (1979) 24 Cal.3d 199, 210.)
Here, ample circumstantial evidence connects appellant with the
crime of conspiracy to furnish a controlled substance to an
inmate. The evidence consists of the methamphetamine-soaked
cards mailed to Camacho, the telephone conversations between
appellant and Magallon, and Officer Klein’s testimony. The
circumstantial evidence is sufficient to prove appellant’s guilt
beyond a reasonable doubt.

11
 Denial of Motion to Dismiss Prior Strike
Appellant asserts that the trial court abused its discretion
in denying his Romero motion to dismiss the prior 1992
residential burglary strike. (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497.) The motion alleged: “[Appellant] is now
53 years old. He was 26 years old when he suffered the strike
conviction . . . .” “[His] record since the 1992 strike[] involves
only drug and driving offenses. No convictions for violence
appear based upon the probation report.” He “appears to be a life
long addict.” The court’s ruling was brief: “All right. Based on . .
. the long criminal history of this defendant, I don’t see any basis
for taking this outside the scope of the normal three-strikes
scheme; so the motion is denied.”
A “court’s [refusal] to dismiss or strike a prior conviction
allegation is subject to review under the deferential abuse of
discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367,
374.) In People v. Williams (1998) 17 Cal.4th 148, 161 (Williams),
our Supreme Court declared that, in exercising its discretion, the
trial court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the . . . spirit [of the Three Strikes scheme], . . . and hence should
be treated as though he had not previously been convicted of one
or more serious and/or violent felonies.” (Accord, People v.
Garcia (1999) 20 Cal.4th 490, 503.) “[A] trial court does not
abuse its discretion unless its decision is so irrational or arbitrary
that no reasonable person could agree with it.” (Carmony,
supra, at pp. 376–377.)

12
 Trial Court’s Refusal to Consider Medical Evidence
Appellant argues that the trial court abused its discretion
in “refus[ing] to consider . . . medical evidence that [he] offered.”
At the hearing on the motion to dismiss the strike, appellant’s
counsel told the court that his client had “brought some medical
documentation.” Appellant explained, “I was diagnosed with Hep
C, cirrhosis of the liver. They found a tumor on my liver so I need
some kind of medical – or something done on me.” The court
asked, “What does that have to do with the Romero motion?”
Counsel responded, “In talking to the doctors, I don’t think they
were too hopeful, but I just add that in for what it’s worth to the
court.” The court inquired, “[I]s that a factor the Court can
consider in a Romero motion?” Counsel replied: “I’m not sure, I
just got this information just seconds ago, so I just wanted to, out
of an abundance of caution, just let the Court know.” The court
said, “I don’t think that’s something the Court can consider with
regard to the Romero motion. Unless somebody can give me some
authority to the contrary, I don’t feel I can, so I’m going to base
any ruling I do on the papers that have been filed.” Appellant did
not object.
The trial court did not abuse its discretion in refusing to
consider evidence of appellant’s medical condition on the ground
that it was irrelevant to the Romero motion. “No evidence is
admissible except relevant evidence.” (Evid. Code, § 350.) “It is
the burden of the proponent of evidence to establish its relevance
. . . . (Evid.Code, § 354.)” (People v. Schmies (1996) 44
Cal.App.4th 38, 51.) Appellant did not carry his burden of
establishing the relevance of his medical condition to the issue in
question, i.e., whether he “may be deemed outside

13
the . . . spirit [of the Three Strikes scheme], . . . and hence should
be treated as though he had not previously been convicted of one
or more serious and/or violent felonies.” (Williams, supra, 17
Cal.4th at p. 161.)
Trial Court’s Alleged Failure to
Consider Relevant Factors
Appellant contends that the trial court abused its
discretion because it failed to adequately consider his “underlying
addiction.” His “convictions are a symptom of his substance use
disorder.” Furthermore, the trial court did not consider that
“[a]ppellant’s . . . strike was 27 years old and pertained to a
burglary that occurred in 1991.” The burglary conviction “was so
de minimis that appellant was sentenced to the low-term of two
years . . . .” In addition, “the nature and circumstances of the
current felony were as inoffensive as a felony could be. . . . [H]e
was convicted of asking his girlfriend for drugs over a recorded
phone line.”
The trial court did not exceed the bounds of reason in
concluding that appellant did not fall “outside the . . . spirit [of
the Three Strikes scheme].” (Williams, supra, 17 Cal.4th at p.
161.) According to the probation report, he has an extensive
criminal record. He was convicted of drug offenses in 1984, 1985,
1986, 1988, 1990, and 1991. He violated probation in 1984. In
1990 he was convicted of taking a vehicle without the owner’s
consent. (Veh. Code, § 10851, subd. (a).) He was placed on
probation on condition that he serve one year in county jail. He
violated probation and was sentenced to two years in prison.
After his release from prison on the 1992 residential burglary
strike, he twice violated parole in 1994. In 1995 he was convicted
of possession for sale of a controlled substance (Health & Saf.

14
Code, § 11378.5) and was sentenced to prison for six years. In
1996 he was convicted of unauthorized possession of drugs in
prison and was sentenced to prison for 16 months. He was
convicted of drug offenses in 2003, 2005, 2014, and 2016. In 2006
he violated parole, and in 2014 he violated probation. In 2018 he
was convicted of possession for sale (Health & Saf. Code, § 11378)
and was sentenced to prison for 32 months. He committed the
present offense while in prison for the prior 2018 conviction.
The prior strike was 27 years old at the time of sentencing
on the present offense. But “[w]here, as here, the defendant has
led a continuous life of crime after the prior, there has been no
‘washing out [of the prior]’ and there is simply nothing mitigating
about . . . [the age of the] prior.” (People v. Humphrey (1997) 58
Cal.App.4th 809, 813.) Furthermore, in view of appellant’s
longstanding and continuous drug abuse, multiple state prison
terms, and violations of probation and parole, his prospects for
rehabilitation are extremely bleak. (See In re Handa (1985) 166
Cal.App.3d 966, 974 [“in the case of an addiction of long standing,
[the sentencing court may find] that the defendant was at fault
for failing to take steps to break the addiction”].)
Finally, the present offense is not, as appellant maintains,
“as inoffensive as a felony could be.” “The obvious purpose of
[section 4573.9 and related statutes] is ‘to deter the presence of
illicit drugs in custodial institutions’; the statutes are ‘deemed
necessary to ensure orderly administration and security within
such institutions. [Citations.]’” (Lee, supra, 136 Cal.App.4th at
p. 536.) “Although the drugs might be intended merely for the
recipient inmate’s personal use, the existence of what amounts to
a smuggling operation makes it much more likely there will be
further distribution within the prison.” (Id. at p. 537.) Where, as

15
here, there is a conspiracy, “‘“[c]oncerted action both increases
the likelihood that the criminal object will be successfully
attained and decreases the probability that the individuals
involved will depart from their path of criminality. . . .
Combination in crime makes more likely the commission of
crimes unrelated to the original purpose for which the group was
formed. In sum, the danger which a conspiracy generates is not
confined to the substantive offense which is the immediate aim of
the enterprise.” . . . [’]” (Id. at p. 529.)
Imposition of Upper Term
Appellant claims that the trial court failed to exercise its
discretion in selecting the six-year upper term for appellant’s
present offense. But the record shows that the trial court
exercised its discretion in specifying the aggravating
circumstances that warranted imposition of the upper term. The
court stated, “The circumstances in aggravation, and for the
record, are: The manner in which the crime was carried out
indicated planning and sophistication; prior convictions are
numerous; served prior numerous prison terms; the defendant
was a sentenced inmate when the crime was committed; the
defendant's prior performance on probation and parole have been
unsatisfactory.” In any event, appellant forfeited his failure-to-
exercise-discretion claim by not raising it below. (People v. Scott
(1994) 9 Cal.4th 331, 353 (Scott) [“the waiver doctrine should
apply to claims involving the trial court’s failure to properly make
or articulate its discretionary sentencing choices”].)
Appellant argues that the trial court abused its discretion
because “[t]he circumstances in aggravation and mitigation . . .
were misconstrued and misrepresented,” the “trial court failed to
consider any circumstances in mitigation,” and some of the

16
aggravating circumstances were elements of the offense. (See
Scott, supra, 9 Cal.4th at p. 350 [court may not “use a fact
constituting an element of the offense either to aggravate or to
enhance a sentence”]; Cal. Rules of Court, rule 4.420(d).) These
arguments are also forfeited because they were not made in the
trial court. The forfeiture doctrine applies to “cases in which the
stated reasons allegedly do not apply to the particular case, and
cases in which the court purportedly erred because it double-
counted a particular sentencing factor, misweighed the various
factors, or failed to state any reasons or give a sufficient number
of valid reasons.” (Scott, supra, at p. 353.) The Scott court
explained: “Although the [trial] court is required to impose
sentence in a lawful manner, counsel is charged with
understanding, advocating, and clarifying permissible sentencing
choices at the hearing. Routine defects in the court's statement
of reasons are easily prevented and corrected if called to the
court's attention.” (Ibid.) “In essence, claims deemed waived on
appeal involve sentences which, though otherwise permitted by
law, were imposed in a procedurally or factually flawed manner.”
(Id. at p. 354.)
“Of course, there must be a meaningful opportunity to
object to the kinds of claims otherwise deemed waived [pursuant
to the Scott] decision. This opportunity can occur only if, during
the course of the sentencing hearing itself and before objections
are made, the parties are clearly apprised of the sentence the
court intends to impose and the reasons that support any
discretionary choices.” (Scott, supra, 9 Cal.4th at p. 356.)
Appellant contends, “There was no meaningful opportunity . . . to
object . . . because the trial court did not state the circumstances
in aggravation until after the [upper] term was imposed.” But

17
the court gave no indication that its imposition of the upper term
was final and unmodifiable. After the trial court had stated the
circumstances in aggravation, it said, “All right, anything else we
need to cover?” The court’s question provided appellant an
opportunity to object to the circumstances in aggravation.
Instead, appellant’s counsel told the court that his client had
refused to sign a “relinquishment form for firearms.” Moreover,
the trial court merely repeated the circumstances in aggravation
listed in the probation report, which was provided to counsel
before sentencing. The trial court did not add any new
circumstances in aggravation. We therefore conclude that
appellant had a meaningful opportunity to object to the
circumstances in aggravation.
Claim of Ineffective Assistance of Counsel
Appellant maintains that his counsel was ineffective for
failing to object to imposition of the six-year upper term. “‘[T]o
demonstrate ineffective assistance of counsel, a defendant must
first show counsel’s performance was “deficient” because his
“representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.”
[Citations.] Second, he must also show prejudice flowing from
counsel’s performance or lack thereof. [Citations.] Prejudice is
shown when 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.” . . .’” (In re Avena (1996) 12 Cal.4th 694, 721.) The
defendant “must carry his burden of proving prejudice as a
‘demonstrable reality,’ not simply speculation as to the effect of
the errors or omissions of counsel.” (People v. Williams (1988) 44

18
Cal.3d 883, 937 (Williams).) In view of appellant’s numerous
prior convictions, prior prison terms, and parole/probation
violations, he has failed to carry his burden of showing that, but
for counsel’s failure to object, it is reasonably probable that the
trial court would have imposed the middle or lower term. The
probation report found no circumstances in mitigation.
Appellant claims that he “received ineffective assistance of
counsel in so far as trial counsel failed to introduce critical
medical records at sentencing. . . . Although the trial court had
erroneously rejected the evidence for consideration in the context
of [the] Romero [motion], it would have been pertinent to renew
the request at the time of deciding the length of the sentence that
would be imposed.” Appellant has failed to show that counsel
was deficient or that his alleged deficiency prejudiced appellant
“as a ‘demonstrable reality.’” (Williams, supra, 44 Cal.3d at p.
937.) The trial court was aware of appellant’s medical problem.
During the hearing on the Romero motion, appellant told the
court that he had hepatitis C, cirrhosis of the liver, and a tumor
on his liver. At the conclusion of the sentencing hearing, the
court said to appellant, “[H]ope the doctors are going to give you
some comfort.” There is no evidence as to the content of the
medical records. Thus, it is speculative whether the introduction
of the records would have resulted in a reduced term of
imprisonment.
Consecutive Sentencing
In 2012 the voters approved Proposition 36, an initiative
measure known as the Three Strikes Reform Act of 2012.
Proposition 36 repealed section 1170.12, subdivision (a)(8), which
provided, “Any sentence imposed pursuant to this section [i.e.,
the Three Strikes law,] will be imposed consecutive to any other

19
sentence which the defendant is already serving, unless
otherwise provided by law.” Proposition 36 did not repeal the
identical provision in section 667, subdivision (c)(8). It appears
that, based on section 667, subdivision (c)(8), the trial court
ordered that the 12-year prison term for the present offense shall
run consecutively to the prison term previously imposed for the
prior 2018 possession for sale conviction. The prosecutor stated,
“[I]t’s a mandatory consecutive sentence.”
The People concede that Proposition 36’s failure to repeal
section 667, subdivision (c)(8) “would appear to be [a drafting]
oversight.” Thus, the People argue that the trial court had
discretion to run the 12-year prison term concurrently with the
prior prison term. The People conclude, “Remand is required for
the trial court to exercise its discretion whether to impose
sentence concurrently [with] the sentence for which appellant
was incarcerated” when he committed the present offense. (Bold
and capitalization omitted.) We agree. (See People v. Buchanan
(2019) 39 Cal.App.5th 385, 395, fn. 2 (dis. opn. of Needham, J.)
[“the failure to delete section 667, subdivision (c)(8) in addition to
section 1170.12, subdivision (a)(8), appears to be an oversight”].)
Disposition
The matter is remanded to the trial court with directions to
exercise its discretion whether to run the 12-year prison term for
the present offense concurrently with or consecutively to the
prison term previously imposed for the prior 2018 possession for
sale conviction. Nothing in this opinion is intended to suggest
how the trial court should rule on this issue. In all other
respects, the judgment is affirmed. If the trial court decides to
impose a concurrent sentence, the court shall prepare an

20
amended abstract of judgment and send a certified copy to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.

21
 Kevin M. Seibert, Judge

Superior Court County of Tuolumne

______________________________

Law Offices of Brad Poore and Brad J. Poore, under
appointment by the Court of Appeal, for Defendant and
Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Louis M. Vasquez, Supervising Deputy
Attorney General, Amanda D. Cary, Lewis A. Martinez, Deputy
Attorneys General, for Plaintiff and Respondent.