P. v. Anderson

Filed 8/28/08 P. v. Anderson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

Defendant was convicted by jury of conspiracy to manufacture methamphetamine (Health & Saf. Code, 11379.6/182), possession of substances with the intent to manufacture methamphetamine^[1](Health & Saf. Code, 11383.5, subd. (c)(1)), possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and possession of a hypodermic needle or syringe (Bus. & Prof. Code, 4140). The trial court found true two enhancements under Health and Safety Code section 11370.2, subdivision (b). Defendant was sentenced to 11 years 8 months in prison.

On appeal, he contends it was error to impose the two enhancements because the People failed to prove the Oregon priors had the same elements as qualifying drug felonies and the trial court failed to find defendant was substantially involved in the conspiracy. He further contends he was denied effective assistance of counsel because his counsel failed to contest the validity of the traffic stop at the suppression hearing. We accept the Attorney Generals concession that the People failed to prove the two enhancements. We strike the enhancements and otherwise affirm.

FACTS

The police made a traffic stop of the car defendant was driving. The car had an Oregon license plate and was registered to Molly Bigelow. Terri Lynn Goodling was a passenger. The officer saw two grocery bags containing numerous boxes of pseudoephedrine; he was suspicious because he knew that was the main ingredient in methamphetamine and the law limited the amount one could purchase. He called his supervisor to request a narcotics agent.

Agents from the Shasta Interagency Narcotic Task Force arrived at the scene and searched the car. In addition to the packages of pseudoephedrine, they found two 40-pound bags of rock salt and a new car battery. These items are used to manufacture methamphetamine. There was also a syringe in the car.

The officers obtained defendants consent to search his motel room. There they found a methamphetamine pipe with residue, eight blister packs of pseudoephedrine, a hair spray can with a false bottom that contained many pseudoephedrine pills as well as methamphetamine, a 25-year-old Physicians Desk Manual, and a syringe with liquid methamphetamine.

A duffel bag that Goodling claimed as hers contained a pipe and more packages of pseudoephedrine. In all, the police collected 2,008 tablets. There were multiple receipts for the drug from different stores. The most recent were in Goodlings purse. Two receipts were in defendants pocket.

The commander of the Shasta Interagency Narcotic Task Force opined the items were possessed for manufacturing methamphetamine. He claimed no one popped open that many blister packs of pseudoephedrine for anything other than manufacturing. He explained that the rock salt and battery acid are used to make HCL gas, which removes a molecule from pseudoephedrine to make methamphetamine.

Defendants fingerprint was found on one of the receipts. A defense expert testified the print could not conclusively be established as defendants.

DISCUSSION

I. Use of Oregon Priors as Enhancements

Defendant contends the trial court erred in using two prior felonies in Oregon to enhance his sentence under Health and Safety Code section 11370.2, subdivision (b) (hereafter section 11370.2(b)). He contends evidence presented did not establish the Oregon offenses qualify as enhancements. Under the least adjudicated elements test, the offenses could have been committed by delivering marijuana, delivering only a trace amount of a controlled substance, or attempted delivery. In none of those situations would the offenses qualify as enhancements. He further contends the trial court erred in failing to find that he was substantially involved in the conspiracy. The Attorney General concedes the evidence presented did not establish the Oregon convictions were for offenses listed in 11370.2(b).

Trial on the enhancements was bifurcated and heard before the trial court. The People alleged that defendant was convicted in 1987 and 1989 of violating Oregon Revised Statutes section 475.992, within the meaning of section 11370.2(b). To prove these priors, the People offered a rap sheet from CLETS showing the two convictions and a mugshot and fingerprint card establishing defendants identity. The judgment order for the 1987 case identified the offense as delivery of a controlled substance (methamphetamine) and indicated defendant received probation. The judgment and conviction of sentence in the 1989 case listed the offense as delivery of a controlled substance, without identifying the drug. Defendant was sentenced to prison.

Section 11370.2(b) provides that anyone convicted of a violation of, or conspiracy to violate, certain drug laws, including manufacturing methamphetamine or possession of substances with the intent to manufacture methamphetamine, shall receive a three-year enhancement for each prior felony conviction of certain drug crimes, including transportation of a controlled substance. Out-of-state priors may be used as enhancements. (Health & Saf. Code, 11370.2, subd. (f).) Under Penal Code section 668, an out-of-state prior conviction may be used to enhance the sentence if the offense would have been a felony in California.

A court may look to the entire record of conviction to determine the substance of the prior foreign conviction; but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law. [Citations.] (People v. Jones (1999) 75 Cal.App.4th 616, 632.)

Oregon Revised Statutes section 475.992, which has been renumbered 475.840, makes it unlawful to manufacture or deliver a controlled substance. (Or.Rev.Stat. 475.480, subd. (1).) Controlled substance means a drug or its precursor classified in Schedules I through V of the federal Controlled Substances Act. (Or.Rev.Stat. 475.005, subd. (6).) Schedule I includes marijuana. (21 U.S.C. 812, Schedule I (c)(10); State v. Joyce (Or.App. 1981) 636 P.2d 999, 1001.) Oregon Revised Statutes section 475.992 could be violated by delivering marijuana. (See State v. Graves (Or.App. 1985) 697 P.2d 1384 [conviction for delivery of marijuana, but error not to instruct on lesser included offense of gratuitous transfer of marijuana].)

Transportation of marijuana is a crime in California, a felony or misdemeanor depending on the amount. (Health & Saf. Code, 11360.) This crime is not, however, one of the enumerated qualifying drug offenses under section 11370.2(b). Since the record of defendants 1989 Oregon conviction submitted at trial did not indicate the type of controlled substance, it could have been for delivery of marijuana. If so, it would not be a qualifying conviction for a section 11370.2(b) enhancement.

There are problems with the 1987 conviction as well. Under Oregon law, delivery includes an attempted transfer. (Or.Rev.Stat. 475.005, subd. (8).) An attempted transfer is sufficient for a violation of Oregon Revised Statutes section 475.480. (State v. Alvarez-Garcia (Or.App. 2007) 159 P.3d 357, 358.) Under section 11370.2, an attempt is insufficient for a qualifying enhancement. (People v. Reed (2005) 129 Cal.App.4th 1281, 1285 [construing section 11370.2(a)].) Further, under Oregon law, a trace amount of a controlled substance is sufficient for conviction. (State v. Henry (Or.App. 1992) 840 P.2d 1335.) In California, a usable quantity is required. Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)

Since the People did not establish that the two prior Oregon convictions were for offenses that qualified as enhancements under section 11370.2(b), the enhancements must be stricken.^[2] The People are not precluded from retrying the enhancements. (People v. Barragan (2004) 32 Cal.4th 236.)

II. Ineffective Assistance of Counsel

Defendant contends he was denied effective assistance of counsel because his counsel failed to challenge the validity of the traffic stop at the hearing on the motion to suppress. Because defendant fails to show he was prejudiced by this omission, his contention fails.

At the suppression hearing, the officer explained defendants car was stopped for a large cracked windshield. Neither the prosecutor nor the two defense counsel questioned the officer about the crack. The trial court found no problem with the search of defendant, but suppressed evidence as to Goodling.

Before trial, defendant sought to reopen the motion to suppress. His counsel argued he had overlooked a critical issue, that the cracked windshield did not provide probable cause for the traffic stop. In the renewed motion, defendant argued the officer never indicated that the crack affected or impaired the drivers vision, as required for a violation of Vehicle Code section 26710.^[3] The trial court found no authority for it to hear the renewed motion.

A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 693].)

We need not address both components of a claim of ineffective assistance of counsel. [A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsels performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (Strickland v. Washington, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699.)

Where defense counsels failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excluded evidence in order to demonstrate actual prejudice. (Kimmelman v. Morrison (1986) 477 U.S. 365, 375 [91 L.Ed.2d 305, 319.)

Defendant has not made the required showing of prejudice. There is no evidence in the record about the nature of the cracked windshield, other than that the crack was large. Defendants motion quotes the officer as saying the crack was on the passenger side, but no such testimony is in the record. It is pure speculation that a challenge to the validity of the traffic stop would have been successful. In fact, the failure to address the issue suggests no one thought it was an issue. [T]o be entitled to reversal of a judgment on grounds that counsel did not provide constitutionally adequate assistance, 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 Cal.3d 883, 937.) Defendant has failed to carry that burden.

DISPOSITION

The enhancements under Health and Safety Code section 11370.2(b) are stricken. In all other respects, the judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

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^[1] This crime was previously found in Health and Safety Code section 11383. It was reorganized into new section 11383.5 in 2006. (Stats. 2006, ch. 646, 3.)

^[2] Since we strike the enhancements, we need not address defendants contention that enhancements could not be imposed because the trial court failed to find he was substantially involved in the planning, direction, execution, or financing of the underlying offense. (Health & Saf. Code, 11370.2, subd. (e); see People v. Porter (1998) 65 Cal.App.4th 250.) In the event of a retrial, the appropriate finding should be made.

^[3] Vehicle Code section 26710 provides in part: It is unlawful to operate any motor vehicle upon a highway when the windshield or rear window is in such a defective condition as to impair the drivers vision either to the front or rear.