Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA052172, Charles L. Peven, Judge.
Marks & Brooklier, Anthony P. Brooklier; Mgdesyan & Taheripour, George Mgdesyan; and Robert Dennis Rentzer for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Efren Silva Martinez appeals from the judgment entered following his conviction by jury of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The court sentenced appellant to prison for four years. Appellant claims trial errors occurred. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that shortly after midnight on May 19, 2005, uniformed Los Angeles Police Officers Juan Soriano and Chad Reuser, and Los Angeles Police Officer Sawada, were on foot patrol near Bryant and Wystone to observe narcotics transactions and gang activity. The area was known for narcotics transactions.
Soriano and Reuser saw appellant and Mike Melendez standing on the corner of the intersection, near the gate of an apartment complex located at the intersection. The area was well lit. Appellant was looking around. Soriano testified that Melendez was “watching out for [appellant].” A car, occupied only by its driver, stopped near the gate. Appellant exited the gate and approached the car. Soriano testified that appellant leaned into the driver’s side of the car and put his right hand inside the car. Appellant then withdrew from the car. Appellant put his right hand in his pocket and put something inside his pocket. Appellant then returned to the corner. The car drove away.
Soriano testified it appeared that a hand-to-hand exchange had occurred, although he did not actually see objects transferred. Soriano had seen other transactions at the location. He believed he had seen a drug transaction because he had made numerous traffic narcotics arrests, he had assisted in narcotics buy-bust operations, and he had made narcotics arrests in the area. According to Soriano, the present incident was consistent with a drug dealer handing a rock or other narcotics to a vehicle’s occupant in return for money. The buyer usually did not exit the vehicle.
Reuser testified as follows. Appellant approached the car and “leaned in towards” (RT/79) the driver’s door. It appeared that appellant and the car’s occupant conversed, and that appellant reached into the car and received something. Appellant came back out of the car, put something in his pocket, and walked through the gate. Another person had acted as a lookout. The lookout was much shorter than appellant.
Reuser also testified that, based on his gang expertise, his working in the gang unit, and his working in a high narcotics area, he believed a narcotics transaction had taken place. His belief was also based on the following facts. Persons in cars who pulled up in that area typically were not residents of the area. The intersection was a known narcotics sales location. Narcotics purchasers would typically pull up, whistle or wave at someone, and males would approach the vehicle and converse.
The officers asked assisting officers to detain appellant. As an assisting patrol car approached, a pickup truck approached the corner and appellant approached the truck. Appellant and Melendez then saw the assisting patrol car driving towards them, and the two fled. Melendez was running behind appellant, who was running southbound towards Soriano.
Soriano and Reuser pursued appellant on foot. Appellant ran to a wall, saw he could not escape, and tossed over the wall a clear plastic baggie containing 8.62 grams of cocaine base. Soriano testified he was about 10 feet from appellant at the time, and appellant was about four car lengths past the gate. Reuser testified he was perhaps 15 feet from appellant at the time. The cocaine base consisted of one large rock and several smaller pieces. Reuser testified that after appellant tossed the item, Sawada recognized appellant and called him by his moniker. Appellant stopped and officers detained him.
When Soriano initially saw appellant and Melendez on the corner, Soriano could distinguish them because of their height difference. Soriano also remembered having seen appellant before, and recognized appellant because he had protruding ears. Reuser was able to distinguish between appellant and the lookout when the lookout started running. Reuser testified the reason he was able to distinguish the two was appellant was taller than the lookout and the officers never lost sight of appellant “coming through the [pedestrian] gate and the sidewalk.” Reuser also testified he never lost sight of appellant from the time he was at the truck to the time police detained him.
Seconds after appellant tossed the baggie, Soriano went around the wall and into a residential carport, and retrieved the baggie and contents. Soriano found no similar objects near the baggie. Police recovered from appellant a cellular phone, a pager, and about $55, but recovered no narcotics paraphernalia from him.
When Melendez first saw Soriano and his partners approaching appellant, Melendez, who was running southbound and who had arrived at the gate, turned and fled northbound. Melendez, who was about seven inches shorter than appellant, was detained by officers for trespassing. Soriano, who had training and experience in determining whether a person was under the influence of narcotics, testified that neither appellant nor Melendez was under the influence of narcotics.
Los Angeles Police Officer Kenneth Lewis, an expert in the use, possession for sale, and sale of narcotics, testified as follows. The street value of the subject cocaine base was about $800. The cocaine base was in a condition normally used for sale, since it consisted of a larger cookie and smaller pieces. Drug dealers typically would keep a larger cookie and break off pieces for sale. Lewis opined at trial that the cocaine base was possessed for sale. His opinion was based on the officers’ observations, the amount of narcotics, the presence of the cookie, and the location of the transaction. Appellant’s possession of $55 was consistent with his having just sold rock cocaine. The fact that police found no narcotics paraphernalia on appellant was evidence the cocaine base was not possessed for personal use.
2. Defense Evidence.
In defense, appellant presented evidence that his cousin, John Jimenez, lived near Bryant and Wystone. Jiminez testified that about 11:30 p.m. on May 19, “2006,” appellant left Jiminez’s house. Appellant was unable to run because he had asthma and previously had been shot in the chest.
CONTENTIONS
Appellant claims (1) his conviction must be reversed because the jury misunderstood the charges against him, (2) he received ineffective assistance of counsel because his trial counsel failed to object to alleged evidence of appellant’s gang affiliation, and failed to object or request a mistrial when the jury convicted him of a greater offense and a lesser-included offense, (3) the prosecutor committed misconduct by repeatedly eliciting testimony concerning appellant’s gang affiliation, and (4) there was insufficient evidence to support his conviction.
DISCUSSION
1. The Jurors Understood They Were Convicting Appellant of Only Possession for Sale of a Controlled Substance.
a. Pertinent Facts.
During the final charge to the jury, the court gave CALCRIM No. 3517, pertaining to deliberations and completion of verdict forms in the context of lesser offenses. The instruction indicated, inter alia, that the jury could not convict appellant, or complete verdict forms indicating appellant was guilty, of both possession for sale of a controlled substance and the lesser offense of possession of a controlled substance.
That instruction stated, in relevant part: “Count One charges that the defendant committed possession for sale of a controlled substance. [¶] The offense of possession of a controlled substance is a lesser offense of possession for sale of a controlled substance. [¶] . . . [¶] If you all agree that the People have proved that the defendant is guilty of possession for sale of a controlled substance, complete the verdict form stating that the defendant is guilty of that offense. Do not complete the other verdict form for the lesser offense. You cannot find the defendant guilty of both possession for sale of a controlled substance and the lesser offense of possession of a controlled substance. [¶] If you all agree that the defendant is not guilty of possession for sale of a controlled substance, but you agree the People have proved that the defendant is guilty of possession of a controlled substance, you must do two things. First, complete the verdict form stating that the defendant is not guilty of possession for sale of a controlled substance. Then, complete the verdict form stating that the defendant is guilty of possession of a controlled substance. Do not complete the verdict form stating that the defendant is guilty of possession of a controlled substance unless you all agree that the defendant is not guilty of possession for sale of a controlled substance.”
On September 28, 2006, the court indicated its understanding that the jury had reached a verdict and the court identified the foreperson. The court asked if the jury had reached “a” verdict in the matter, and the foreperson replied, “We have.” (RT/188) The court asked the foreperson if he would hand the verdict to the bailiff, and forms were given to the court.
The following subsequently occurred: “The Court: You’ve done what we told you not to do. I have two guilty verdicts here. [¶] The Foreperson: Oh. [¶] The Court: All right. One for the charge, itself, and one for the lesser charge. So what was the jury’s intent here? [¶] The Foreperson: May I speak, your Honor? [¶] The Court: Yes. [¶] The Foreperson: Yes. We have reached a verdict on the possession for sale as guilty. [¶] The Court: All right. [¶] The Foreperson: I apologize. [¶] The Court: All right. I think you want to reconvene or is everybody decided we’ll take – you’ve indicated now that the verdict of this jury is guilty of the crime of possession for sale of cocaine base in violation of section 11351.5, a felony, as charged in count 1. Is that what the jury has reached? [¶] The Foreperson: We have reached that verdict. [¶] The Court: Reached that verdict? [¶] The Foreperson: Apologize again. [¶] The Court: Why don’t you poll the jurors and see if that in fact – [¶] The Clerk: Ladies and gentlemen of the jury, if that is your verdict when I call your juror number, . . . please answer yes; if it is not, please answer no.”
The clerk then called each juror’s number, and each juror replied yes. The court stated that “All of the jurors have indicated that the verdicts of guilty of . . . violation of section 11351.5, has [sic] been reached by the jury . . . the clerk will be ordered to record the verdict.”
The minute order printed October 24, 2006, and pertaining to September 28, 2006 proceedings, reflects, “. . .With all parties present as heretofore, the jury reenters the courtroom. The court, after reviewing the verdicts, indicates that the jury foreman has signed two verdict forms. The court questions the jury foreman, who indicates that the following verdict is the intended verdict of the jury: [¶] We the jury in the above-entitled action, find the defendant, Efren Martinez, guilty of the crime of possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5, a felony, as charged in count 1 of the information. . . . [¶] The jury is polled and all answer in the affirmative. The verdict is ordered recorded; reading as recorded is waived.”
At sentencing, appellant’s counsel argued for “an appropriate punishment for the offense being the first felony conviction” that appellant had suffered. The court sentenced appellant on his conviction for possession for sale of a controlled substance, and appellant did not suggest at sentencing that the jury convicted him of, or that he could be sentenced for, possession of a controlled substance.
b. Analysis.
Penal Code section 1149 states, “When the jury appear they must be asked by the
Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.” The section contemplates a possible scenario in which the court asks the jury whether they have agreed upon their verdict, the foreman, on behalf of the jury, answers in the affirmative, the court then requires the jury to declare their verdict, and the jury declares it. Moreover, “The oral declaration of the jurors endorsing the result is the true return of the verdict. There is no requirement that the verdict be in written form. (Pen. Code, § 1149; People v. Mestas (1967) 253 Cal.App.2d 780.)” (People v. Lankford (1976) 55 Cal.App.3d 203, 211; see Stone v. Superior Court (1982) 31 Cal.3d 503, 511.) “‘There are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed. [Citations.]’ [Citations.]” (People v. Bratis (1977) 73 Cal.App.3d 751, 763.)
In the present case, the record, fairly read, reflects as follows. The foreperson, on behalf of the jury as expressly permitted by Penal Code section 1149, answered the court that the jury had agreed upon their verdict when the foreperson answered, “We have.” (RT/188) The court then asked “what was the jury’s intent here?” (RT/189) and the foreperson, in the jury’s presence, replied “We have reached a verdict on the possession for sale as guilty.” (Italics added.) The foreperson’s answer referred to a single verdict, not multiple verdicts, none of the other jurors then disputed the foreperson’s answer, and neither the foreperson nor any other juror mentioned any other verdict or, in particular, a verdict convicting appellant of possession of a controlled substance.
The court later required the jury to declare their verdict when the court asked “you’ve indicated now that the verdict of this jury is guilty of the crime of possession for sale of cocaine base in violation of section 11351.5, a felony, as charged in count 1. Is that what the jury has reached?” (Italics added.) The record reflects that the foreperson, in the jury’s presence, replied, “We have reached that verdict.” (Italics added.) The verdict referred to was the verdict convicting appellant of possession for sale of a controlled substance. Again, the foreperson did not refer to multiple verdicts, none of the jurors then disputed the foreperson’s answer, and neither the foreperson nor any other juror mentioned any other verdict.
We conclude that, just as the foreperson acted on behalf of the jury when the foreperson indicated that the jury had agreed upon their verdict, the foreperson acted on behalf of the jury when the foreperson declared that verdict by saying “We have reached that verdict.” The oral declaration of the jury, through the foreperson, endorsing the result was the true return of the verdict. The foreperson’s declaration unmistakably expressed the jury’s intention to convict appellant of possession for sale of a controlled substance. The foreperson’s comments and repeated apologies indicate the jury had not intended to convict appellant of merely possession of a controlled substance.
Moreover, the fact that the jury intended that the foreperson act on their behalf to declare their verdict, and that the jury intended to convict appellant only on the charge of possession for sale of a controlled substance, is demonstrated by the fact that, after the foreperson’s apologies, each juror, when polled, did nothing other than unequivocally acknowledge that “that is your verdict.” (Italics added.) These facts are also supported by appellant’s understanding at the sentencing hearing that appellant had been convicted of a single charge – possession for sale of a controlled substance. Accordingly, we conclude the jury understood the underlying charges against appellant, convicted him of the single offense of possession for sale of a controlled substance, and did not convict him of the offense of possession of a controlled substance. This is not a case involving multiple or inconsistent verdicts.
There is no dispute that possession of a controlled substance is a lesser included offense of possession for sale of a controlled substance. A defendant cannot lawfully be convicted of both a greater offense and a lesser included offense, and if a jury convicts a defendant of both, the lesser included offense must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 354-355.) We have concluded that the jury convicted appellant of only possession for sale of a controlled substance. However, even if appellant had been convicted of that offense and possession of a controlled substance, we would have been required to reverse only the latter conviction.
2. Appellant Was Not Denied Effective Assistance of Counsel.
a. Counsel’s Failure to Object to Alleged Evidence of Appellant’s Gang Affiliation Was Not Ineffective Assistance of Counsel.
(1) Pertinent Facts.
We have set forth below the testimony appellant now challenges, and we have italicized it where it is part of additional testimony.
During the People’s direct examination of Soriano, he testified that he and his partners parked their patrol car on a side street near Bryant and Wystone. The People asked Soriano why he did that and, without objection, he replied, “ . . . We could do foot beats in the area or it’s a lot easier to observe the narcotics transactions and gang activity.”
Later during direct examination, Soriano testified he was approximately 10 feet from appellant when Soriano saw him toss an object. The following then occurred: “Q And after the defendant made that tossing object [sic], you said that he went down on the ground. Did anyone give him any instructions to do that? [¶] A Yes. [¶] Q Who did? [¶] Officer Sawada . . . actually yelled out ‘Risky’. . . at that time Officer Reuser yelled out ‘police’. And just to make sure I yelled out ‘get down, get down’. And then that’s the point when he went down. [¶] Q Okay. And can you tell us who was Risky? [¶] A Risky is the defendant. [¶] Q Okay. [¶] A He’s known as Risky.” (Italics added.)
During the People’s direct examination of Reuser, he testified that, just after midnight on May 19, 2005, he was in the area of Bryant and Wystone. Reuser also testified he was working with Sawada and Soriano on that evening. Reuser then testified: “We were in the area conducting a foot beat. We generally get complaints about the area of Bryant Street apartment complexes or Park Parthenia in regards to narcotics sales and gang activity. [¶] We were in the area of Napa and Wystone, which is just south of Bryant Street, conducting a foot beat in that area, when we observed two individuals, I believe, in . . . 19004 Bryant Street, sort of loitering in that area.” (Italics added.)
Later during direct examination, Reuser testified he saw appellant toss something like a sandwich bag, and it contained something which Reuser could not identify. The following then occurred: “Q After that toss was made, what did the guy do? [¶] A My partner, John Sawada, recognized him and called him by his, his name. [¶] Q Moniker? [¶] A Yeah, his moniker. He said, ‘Hey, Risky, stop.’” (Italics added.) (RT/86) During cross-examination, Reuser testified that “. . . Sawada, actually said, ‘Hey, Risky.’ And Risky started coming down into a prone position.”
During the People’s direct examination of Lewis, the following occurred: “Q Based on your review of the police report, and looking at the photographs, and listening to Officer Sawada’s testimony at the preliminary hearing, did you form an opinion as to whether or not [the subject substance] . . . was possessed for sale? [¶] A I did. [¶] Q What is your opinion? [¶] A I believed it was possessed for sales. [¶] Q What’s the basis of your opinion? [¶] A Totality of the circumstances: the officer observations; the amount; . . . the amount of narcotics recovered; the way it’s the cookie in there, the pieces; the location suspect was at, chronic narcotic locations we have in the valley, Bryant Street, gang members control that; the narrative explained by the officers that this person was involved with Bryant Street gang; and the recovery of the narcotics.” (Sic; italics added.)
(2) Analysis.
Appellant claims his trial counsel provided ineffective assistance of counsel by failing to object to alleged evidence of appellant’s gang affiliation. Appellant argues his counsel “failed to object at any point when the People referred to the appellant’s gang affiliation in front of the jury.” (Italics added.) We reject his claim.
“‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components.’ [Citations.] ‘First, the defendant must show that counsel’s performance was deficient.’ [Citations.] Specifically, he must establish that ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) “In addition to showing that counsel’s performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.” (Id. at p. 217.) Moreover, on appeal, if the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, an ineffective assistance contention must be rejected. (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)
In the present case, none of the challenged testimony except that of Lewis referred to any gang affiliation of appellant, and appellant’s counsel reasonably could have refrained from objecting to Lewis’s testimony on the issue as a tactical decision to avoid calling attention to the testimony. Mere reference to appellant’s nickname did not refer to gang affiliation. Appellant, not the People, elicited Reuser’s testimony that “. . . Sawada, actually said, ‘Hey, Risky.’ And Risky started coming down into a prone position.”
The record sheds no light on why counsel failed to act in the manner challenged, counsel was not asked for an explanation, and we cannot say on this record that there simply could be no satisfactory explanation; therefore, we reject appellant’s claim. We also reject appellant’s claim for the reason that, in light of the ample evidence of appellant’s guilt, the alleged constitutionally deficient representation was not prejudicial.
b. Counsel’s Failure to Object or Request a Mistrial When the Jury Allegedly Convicted Appellant of a Greater Offense and a Lesser-Included Offense Was Not Ineffective Assistance of Counsel.
Appellant claims his trial counsel provided ineffective assistance of counsel by failing to object or request a mistrial when the jury allegedly convicted appellant of both possession for sale of a controlled substance and, as a lesser included offense, possession of a controlled substance. We disagree. As indicated in our analysis in part 1 of our Discussion concerning the jury’s verdict, the jury convicted appellant of only possession for sale of a controlled substance, and did not convict him of possession of a controlled substance. Appellant’s counsel had no occasion to complain about multiple convictions.
3. No Prejudicial Prosecutorial Misconduct Occurred.
Appellant claims the prosecutor committed misconduct by repeatedly eliciting testimony concerning appellant’s gang affiliation. He essentially recasts his ineffective assistance of counsel claim concerning gang affiliation evidence as a prosecutorial misconduct claim. However, appellant failed to object to the challenged testimony on the ground that the prosecutor committed misconduct. Nor did appellant request a jury admonition, which would have cured any harm. Appellant waived any issue of prosecutorial misconduct. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Clark (1993) 5 Cal.4th 950, 1016.)
On the merits, in People v. Hill (1998) 17 Cal.4th 800, our Supreme Court stated, “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” (Id. at p. 819.) We incorporate here our analysis of appellant’s ineffective assistance claim regarding gang affiliation evidence and, for reasons similar to those discussed there, we reject appellant’s claim that prejudicial prosecutorial misconduct occurred.
4. Sufficient Evidence Supported Appellant’s Conviction.
Appellant claims there was insufficient evidence to support his conviction. He appears to concede that police saw someone throw a baggie containing cocaine base, and concedes police recovered the subject baggie of cocaine base. There is no dispute that any possession of the cocaine base was for sale. Appellant argues there was insufficient evidence of a narcotics sale and that appellant was the seller. We reject appellant’s claim.
Appellant argues he was accompanied by another person and “it is feasible that the other person, not the appellant threw a bag containing cocaine base.” We note a heading in appellant’s opening brief is “appellant could not be the person that the officers witnessed toss a bag while running . . . .” (Italics added.)
We have recited the pertinent facts and will not repeat them here. There was substantial evidence that officers saw appellant engage in what, based on their expertise, the officers clearly believed was merely a garden-variety hand-to-hand narcotics sale. There was also substantial evidence that after appellant saw police, he fled, and discarded the subject cocaine base, both acts evidencing consciousness of guilt. Soriano and Sawada recognized appellant, and Reuser never lost sight of him from the time appellant was at the truck to the time police detained him. A narcotics expert testified appellant possessed for sale the cocaine base.
Appellant was charged, not with selling a controlled substance to the driver of the car, but with possession for sale of a controlled substance. Based on all the evidence, there was sufficient evidence that appellant possessed for sale a controlled substance, namely, the 8.62 grams of cocaine base. (Cf. People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Parra (1999) 70 Cal.App.4th 222, 227.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P .J., ALDRICH, J.