Opinion
D075764
03-11-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS PATRICK GLENN, IV, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE381823) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Thomas Patrick Glenn, IV guilty of one count of transportation of a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 11379, subd. (a)), one count of possession of a controlled substance (methamphetamine) for sale (id., § 11378), and one count of possession of paraphernalia used for narcotics (id., § 11364). Glenn admitted three prison priors and three probation denial priors (Pen. Code, §§ 667.5, subd. (b), 668, 1203, subd. (e)(4)). At sentencing, the trial court struck Glenn's prison priors and probation denial priors, and it imposed a split sentence of four years in county custody, divided between one year of incarceration in county jail and a subsequent three years of mandatory supervision.
Glenn contends (1) his conviction for possession of methamphetamine for sale should be vacated because it is a lesser included offense of transportation of methamphetamine for sale under the accusatory pleading test for determining whether a specific crime is a lesser included offense; and (2) his conviction for possession of paraphernalia used for narcotics should be reversed because defense counsel violated his constitutional rights when she conceded guilt on that count during closing argument.
We conclude that Glenn's contentions lack merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of May 28, 2018, a sheriff's deputy stopped Glenn while he was riding his bicycle in Ramona. The deputy searched Glenn's backpack, where he found a bag containing 32.95 grams of methamphetamine. The backpack also contained paraphernalia commonly used to take methamphetamine: (1) a glass pipe with residue on the inside; (2) a syringe; and (3) a spoon covered with a melted white crystalline substance. The deputy also seized Glenn's cell phone, which was later found to contain text messages that indicated he had been involved in buying and selling methamphetamine.
Glenn was charged with one count of transportation of a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 11379, subd. (a)), one count of possession of a controlled substance (methamphetamine) for sale (id., § 11378), and one count of possession of paraphernalia used for narcotics (id., § 11364). It was also alleged that Glenn incurred three prison priors and three probation denial priors. (Pen. Code, §§ 667.5, subd. (b), 668, 1203, subd. (e)(4).)
At trial, a detective who was an expert on methamphetamine use testified that a common dosage of methamphetamine is .05 to .1 grams. Accordingly, if someone used .1 grams of methamphetamine every six hours, the amount of methamphetamine found in Glenn's backpack would last a user for 82 days without any time off for sleeping. In the detective's opinion, based on the amount of methamphetamine that Glenn possessed and the text messages on Glenn's cell phone, Glenn possessed the methamphetamine for sale.
Glenn testified in his own defense. Glenn stated that he was a daily user of methamphetamine and would buy a large quantity of methamphetamine at one time if he could find it. Glenn testified that he obtained the methamphetamine in his backpack from someone who gave it to him to sample and then pay him later. According to Glenn, he went home and tried the methamphetamine, but he found it to be of poor quality. Glenn explained that he had already determined he would return the methamphetamine to the person who gave it to him when he was stopped by the deputy, and he therefore had no intention of selling the methamphetamine. During his testimony, Glenn admitted that the drug paraphernalia in his backpack belonged to him.
The jury convicted Glenn on all three counts, and Glenn later admitted his three prison priors and three probation denial priors.
At sentencing, the trial court struck the prior conviction allegations, and it imposed a split sentence of four years in county custody, divided between one year of incarceration in county jail and a subsequent three years of mandatory supervision.
II.
DISCUSSION
A. Under Settled Authority From Our Supreme Court, Glenn's Conviction For Possession of Methamphetamine for Sale Is Not a Lesser Included Offense of His Conviction for Transportation of Methamphetamine for Sale
Glenn's first contention is that his conviction for possession of methamphetamine for sale should be vacated because it is a lesser included offense of transportation of methamphetamine for sale when the accusatory pleading test, rather than the statutory elements test, is used. As Glenn recognizes, his argument lacks merit, as it is foreclosed by binding authority from our Supreme Court, which establishes that only the statutory elements test is applicable when determining whether one charged offense is a lesser included offense of another charged offense. (People v. Reed (2006) 38 Cal.4th 1224, 1231 (Reed).) Because Glenn has raised his challenge to preserve it for review in the event our Supreme Court decides to reexamine its holding in Reed, we proceed to discuss the issue.
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (Reed, supra, 38 Cal.4th at p. 1226.) "A judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.' . . . '[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' " (Id. at p. 1227.)
As our Supreme Court explained in Reed, courts have "applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at pp. 1227-1228, italics added.) However, Reed ruled that because the accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime, the accusatory pleading test had no application in deciding whether multiple conviction of charged offenses is proper. Instead, "[c]ourts should consider . . . only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Id. at p. 1231.)
The issue presented here is whether Glenn may be convicted of multiple charged crimes, one of which he claims to be a lesser included offense of the other, namely, the charged crime of possession of methamphetamine for sale and the charged crime of transportation of methamphetamine for sale. Based on the rule established in Reed, supra, 38 Cal.4th at page 1231, it is clear that only the statutory elements test is applicable in resolving that issue, not the accusatory pleading test.
Glenn concedes that when the statutory elements test is applied, "[t]he elements of a violation of [Health and Safety Code] section 11379, subdivision (a) (transportation of methamphetamine for sale) do not include all the elements of a violation of [Health and Safety Code] section 11378 (possession of methamphetamine for sale) because a drug may be transported without necessarily possessing it." (Italics added.) In support of this concession, Glenn cites People v. Rogers (1971) 5 Cal.3d 129, 134. Rogers stated, "Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense and one may 'transport' marijuana or other drugs even though they are in the exclusive possession of another. . . . For example, were defendant shown to have aided and abetted his passengers in carrying, conveying or concealing drugs in their possession, his conduct would have sustained a conviction of transportation." (Ibid., fn. omitted.) Further, Rogers disapproved two court of appeal cases "[t]o the extent that [they] suggest that possession is a necessary element to the offense of transportation." (Id. at p. 134, fn. 4.) As Glenn recognizes, these statements in Rogers make clear that the elements of the crime of transporting of a drug for sale do not necessarily include all the elements of possessing a drug for sale.
As Glenn observes, a footnote in Rogers could be read as stating that if the accusatory pleading test were applied, possession for sale could be determined to be a lesser included offense of transportation for sale. Specifically, the footnote in Rogers stated, "In cases where defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges." (Rogers, supra, 5 Cal.3d at p. 134, fn. 3.)
Despite Glenn's concession that the statutory elements test applies and that Rogers controls how the test must be applied in this context, Glenn nevertheless argues that our Supreme Court may want to reexamine Reed and may want to hold that the accusatory pleading test applies in determining whether a charge of possession for sale is a lesser included offense of transportation for sale. For this argument, Glenn points to Justice Moreno's concurring and dissenting opinion in Reed. (Reed, supra, 38 Cal.4th at pp. 1231-1236.) As Glenn contends, "Justice Moreno's concurring and dissenting opinion cogently explained why the accusatory pleading test should apply to multiple charged offenses." Glenn advocates that based on the views set forth in Justice Moreno's concurring and dissenting opinion, the accusatory pleading test should be applied here rather than the elements test, despite the adoption of a contrary rule by the majority in Reed.
Further, Glenn contends that the footnote in Rogers shows that if the accusatory pleading test is applied, his conviction for possession for sale was a lesser included offense of transportation for sale. (Rogers, supra, 5 Cal.3d at p. 134, fn. 3.)
We reject Glenn's argument that his conviction for possession for sale was a lesser included offense of transportation for sale, as we are bound to follow our Supreme Court's opinion in Reed. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Under the rule set forth by our Supreme Court in Reed, only the statutory elements test may be applied in deciding whether a defendant may be convicted of multiple charged crimes. B. Defense Counsel Did Not Violate Glenn's Constitutional Rights By Conceding Guilt During Closing Argument on the Count Alleging Possession of Paraphernalia Used for Narcotics
Glenn's second contention is that his constitutional rights were violated when, during closing argument, defense counsel conceded Glenn's guilt for possession of narcotics paraphernalia.
During closing argument, defense counsel pursued the same theory that Glenn advanced during his trial testimony. Specifically, counsel argued that Glenn is a habitual drug user who commonly possesses and uses methamphetamine, but that after Glenn tried the specific methamphetamine at issue here, he found it to be of low quality and was going to give it back to the person he obtained it from rather than sell it. Consistent with this approach, defense counsel argued to the jury, "So is he guilty of the lesser-included offense of possession? Yes. Is he guilty of Count 3, the possession of paraphernalia? Yes. But he's not guilty of transporting or possession for sale because he didn't have that intent."
Glenn contends that defense counsel's concession during closing argument was tantamount to a guilty plea made without his permission. Accordingly, Glenn contends that the concession of guilt deprived him of effective assistance of counsel, and it violated his right against self-incrimination, his right to a jury trial and his right to confront witnesses.
1. Glenn Did Not Receive Ineffective Assistance Based on Defense Counsel's Concession That Glenn Was Guilty of Possessing Narcotics Paraphernalia
For his contention that he received ineffective assistance of counsel, Glenn relies on McCoy v. Louisiana (2018) ___ U.S. ___, 138 S.Ct. 1500 (McCoy). In McCoy, a defendant in a capital murder trial "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. . . . Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant 'committed three murders. . . . [H]e's guilty." (Id. at p. 1505.) The Supreme Court held "a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right 'to have the Assistance of Counsel for his defence,' the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant's prerogative, not counsel's, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt." (Ibid.) Therefore, "[w]hen a client expressly asserts that the objective of 'his defence' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt." (Id. at p. 1509, italics added.) "Presented with express statements of the client's will to maintain innocence . . . , counsel may not steer the ship the other way." (Ibid., italics added.) The Supreme Court in McCoy distinguished its holding in Florida v. Nixon (2004) 543 U.S. 175 (Nixon), that " 'when [the] defendant, informed by counsel, neither consents nor objects' " to a concession of a capital defendant's guilt at trial, " '[no] blanket rule demand[s] the defendant's explicit consent' to implementation of that strategy." (McCoy, at p. 1505, italics added.) There was no Sixth Amendment violation in Nixon because "Nixon's attorney did not negate Nixon's autonomy by overriding Nixon's desired defense objective, for Nixon never asserted any such objective." (McCoy, at p. 1509.)
Glenn cites McCoy for the broad proposition that "[a] defendant is deprived of effective assistance of counsel when his counsel concedes his guilt over the defendant's objection," and he contends that he was improperly subjected to such a concession of guilt when defense counsel stated "Is he guilty of Count 3, the possession of paraphernalia? Yes."
As we will explain, Glenn's reliance on McCoy lacks merit. As the text of McCoy itself makes clear, and as California authority applying McCoy has subsequently explained, defense counsel's concession of a defendant's guilt during the course of argument to the jury violates the defendant's constitutional rights only if the record demonstrates that the defendant expressly stated his desire to assert his innocence.
In People v. Lopez (2019) 31 Cal.App.5th 55, 63, where the defendant was charged with one count of felony hit and run and one count of second degree murder, defense counsel conceded during opening and closing argument that defendant was guilty of felony hit and run, but argued that he was not guilty of murder. (Id. at p. 62.) The record was silent as to whether defendant agreed with the concession. (Ibid.) On appeal, defendant argued that the court should "apply McCoy's analysis of a defendant's constitutional right to control the objectives of his or her own defense to cases, such as this one, where the defendant has not expressly raised an objection." (Id. at p. 66.) In rejecting that argument, Lopez stated, "We conclude such an extension is not supported by the controlling authority. In fact, the court in McCoy explicitly distinguished Florida v. Nixon, supra, 543 U.S. at p. 186, in which defense counsel several times explained to the defendant a proposed concession strategy, but the defendant was unresponsive." (Lopez, at p. 66.) Lopez explained, "we have found no authority, nor has appellant cited any, allowing extension of McCoy's holding to a situation where the defendant does not expressly disagree with a decision relating to his right to control the objective of his defense." (Ibid.)
Similarly, in People v. Franks (2019) 35 Cal.App.5th 883, the defendant argued that, in violation of McCoy, defense counsel improperly conceded that he was the person who killed the victim while arguing that defendant should be found guilty of involuntary manslaughter instead of a more serious type of homicide. (Id. at pp. 888-889.) Franks rejected the argument because "nothing in the record indicates that [defendant] ever made it clear to his counsel (or the court) that the objective of his defense was to maintain innocence, or that he voiced . . . any opposition—to his lawyer's defense strategy." (Id. at p. 891.) Franks explained, "McCoy makes clear . . . that for a Sixth Amendment violation to lie, a defendant must make his intention to maintain innocence clear to his counsel, and counsel must override that objective by conceding guilt." (Ibid.)
The instant case is not like McCoy because Glenn did not "vociferously insist[ ] that he did not engage in the charged acts" and did not "adamantly object[] to any admission of guilt." (McCoy, supra, 138 S.Ct. at p. 1505.) To the contrary, Glenn admitted during his testimony that the narcotics paraphernalia found in his backpack belonged to him. Indeed, Glenn's admission was consistent with his entire defense as expressed during his testimony, namely that he was a habitual drug user who commonly bought large quantities of methamphetamine, but that he did not intend to sell the drugs. Because the record contains no indication that Glenn made any objection to defense counsel's strategy of conceding guilt on the count charging him with possessing narcotics paraphernalia, McCoy is inapplicable, and Glenn did not suffer a violation of his right to effective assistance of counsel.
2. There Was No Violation of Glenn's Right Against Self-incrimination, Right to a Jury Trial, or Right to Confront Witnesses Based on Defense Counsel's Concession That Glenn Was Guilty of Possessing Narcotics Paraphernalia
In support of his contention that his right against self-incrimination, his right to a jury trial, and his right to confront witnesses were violated when defense counsel conceded his guilt during closing argument, Glenn relies on People v. Farwell (2018) 5 Cal.5th 295. In Farwell, our Supreme Court concluded that a stipulation encompassing all elements of a charged offense was tantamount to a guilty plea because it conclusively established all elements of the charged offense, thereby rendering a guilty verdict a foregone conclusion because it gave the jury no option but to find the defendant guilty. (Id. at p. 308.) As Farwell explained, the "stipulation conclusively established the stipulated facts as true and completely relieved the prosecution of its burden of proof on count 2. While the jury was still required to return a verdict on that count, its limited function did not amount to a jury trial in the constitutional sense." (Id. at p. 300.) Therefore, a waiver (commonly known as a Boykin-Tahl waiver) showing defendant voluntarily and intelligently waived his constitutional trial rights was required. (Ibid.)
" 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.' (Boykin v. Alabama (1969) 395 U.S. 238, 243). These include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation. (Ibid.)" (Farwell, supra, 5 Cal.5th at p. 299.)
In contrast to Farwell, where the jury was presented with a stipulation encompassing all the elements of the offense, a different rule applies when defense counsel does nothing more than concede defendant's guilt to the jury during argument. Our Supreme Court has consistently held that "trial counsel's decision not to contest, and even expressly to concede, guilt on one or more charges at the guilt phase of a capital trial is not tantamount to a guilty plea requiring a Boykin-Tahl waiver." (People v. Cain (1995) 10 Cal.4th 1, 30 (Cain), italics added; see also People v. Lucas (1995) 12 Cal.4th 415, 446 (Lucas) ["It is . . . settled that counsel's concession of guilt on one or more charges at the guilt phase of a capital trial is not the equivalent of a guilty plea, requiring defendant's express waiver."].)
Farwell does not apply here because the jury was not presented with a stipulation of guilt admitting the elements of the crime of possessing of narcotics paraphernalia. Instead, defense counsel did nothing more than concede guilt on that count during closing argument. Unlike in Farwell, the prosecution was still required to present competent evidence to establish the essential elements of the crime of possessing narcotics paraphernalia beyond a reasonable doubt, something it would not have had to do had Glenn pleaded guilty. As Lopez explained in rejecting a similar argument, "Appellant cites no authority extending the rationale of Farwell to a case such as this one, concerning a concession made during closing argument. Indeed, courts have repeatedly distinguished between such circumstances and a guilty plea or its equivalent." (Lopez, supra, 31 Cal.App.5th at pp. 64-65; see also People v. Marsh (2019) 37 Cal.App.5th 474, 491 [rejecting defendant's claim that defense counsel's closing argument that defendant was guilty of this vandalism charge was tantamount to a guilty plea on that count and distinguishing Farwell].) Instead, the rule set forth in Cain and Lucas applies, under which a concession by defense counsel during argument to the jury is not equivalent to a guilty plea, and does not require a Boykin-Tahl waiver. (Cain, supra, 10 Cal.4th at p. 30; Lucas, supra, 12 Cal.4th at p. 446.)
We accordingly reject Glenn's contention that he suffered a violation of his right against self-incrimination, his right to a jury trial, and his right to confront witnesses when defense counsel conceded during closing argument that Glenn was guilty of possessing narcotics paraphernalia.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: O'ROURKE, Acting P. J. GUERRERO, J.