P. v. Lodge

Filed 6/18/08 P. v. Lodge CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed in part and reversed in part with directions.

Law Offices of Ronald A. Ziff, Ronald A. Ziff and Abby Besser Klein for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Allen Lodge had $2,000 worth of heroin and a substantial amount of cash hidden in his bunk area at the California Rehabilitation Center (CRC). He was convicted both of possession of heroin for purposes of sale and possession of a controlled substance in a prison facility.

Defendant now contends his conviction must be overturned because:

1. Defendants shackling during trial violated his due process rights and requires reversal.

2. The trial court erroneously admitted expert testimony regarding drug trafficking by gangs in prison.

3. The trial court erred by admitting multiple levels of hearsay.

4. The trial court improperly struck testimony on its own motion.

5. Evidence that defendant possessed a cellular telephone in prison should have been excluded as irrelevant, and was inadmissible as Evidence Code section 1101, subdivision (b) evidence.

6. The trial court abused its discretion when it denied defendants Romero^[1]motion.

We find no prejudicial error. Hence, we will affirm defendants conviction. However, because the trial court imposed an unauthorized sentence (see part IX, post), we will reverse as to the sentence only and remand the matter for resentencing in accordance with our directions.

I

PROCEDURAL BACKGROUND

A jury found defendant guilty of possession of a controlled substance for the purpose of sales (Health & Saf. Code,  11351) and possession of a controlled substance in a penal institution (Pen. Code,  4573.6).^[2] The trial court found that defendant had suffered four prior serious or violent felony convictions (Pen. Code,  667, subds. (b) through (i)) and had served a prior prison term (Pen. Code,  667.5, subd. (b)).^[3] Defendant was sentenced to state prison for a total term of 25 years to life.^[4]

II

FACTUAL BACKGROUND

On July 31, 2004, defendant was serving a prison term at CRC in Norco. After he was found with a cellular telephone, adapter, and earpiece (possession of a cellular telephone in CRC is a rules violation), he was sent to the California Institution for Men (CIM) to serve a disciplinary sentence. Prior to his transfer to CIM, his property was inventoried and stored at CRC. At that time, his property included a television antenna and several boxes of soap.

On October 1, 2004, defendant was transferred back to CRC with another inmate, Elcardos Worthen.^[5] Defendant and Worthen went to Receiving and Release so they could be processed and get their inventoried property back. Since defendant had a lot of stored property, and Worthen had none because CRC had lost it, Worthen helped defendant carry his property back to the dormitory. Defendant promised to give Worthen some of his property in exchange for his help. Worthen held a television antenna, a shaver, and some other items for defendant.

While they were being transferred to their dormitories, defendant showed Worthen two to three bindles of what defendant said was heroin inside the television antenna. Defendant also showed Worthen several hundred dollars secreted inside a soap box. Defendant ended up taking all of the property back from Worthen, and they were assigned to different dormitories.

Several days later, Worthen wanted to get transferred out of CRC facility because he was being threatened by other inmates. In an effort to get transferred, he told California Correctional Officer Kevin Anthony about the heroin and cash possessed by defendant and where it was hidden. Officer Anthony then advised Officer Horace Thurman that defendant had money secreted in the soap box and heroin in a television antenna. Officer Thurman passed the information on to Officer Carlos Poveda, who was the officer in charge of defendants 100-inmate dormitory.

On October 4, 2004, Officer Poveda searched defendants locker, which was locked, and his bed area; defendant was not present.^[6] Officer Poveda found three bindles of heroin hidden inside a television antenna he found on top of defendants assigned locker. Officer Poveda found $795 cash hidden inside a soap box located inside defendants locker.^[7]

The three bindles found tested positive for heroin and together weighed approximately two and a half grams. The amount of drugs possessed by defendant had an estimated value of $2,000.

In his defense, defendant presented evidence that he was never given a lock for his locker. It was common for inmates to pass around contraband to avoid it being seized in random searches.

III

SHACKLING

Defendant contends that the trial court abused its discretion by ordering him to wear a leg brace throughout the trial despite the fact that there was no evidence of a manifest need to shackle him.

A. Additional Factual and Procedural Background

During jury selection, defendants counsel brought to the trial courts attention that on the prior day, while the prospective jurors were present, defendant stood up, and she could see that he was wearing a leg brace.^[8]Defense counsel claimed that jurors were looking at it, she had noticed it, and it was making defendant uncomfortable.

The trial court deferred to the courtroom deputy in charge of security. The deputy advised the trial court that the leg brace was not coming off. The trial court acquiesced in the decision of the deputy. Defense counsel informed the trial court that there could not be a blanket policy of restraints; the court had to articulate some reason for defendant to wear the restraints. The trial court again deferred to the deputy, who believed that the leg brace was necessary.

The trial court also noted that it believed that the leg brace could not be seen because defendants legs and feet were under the table. In fact, the trial court did not even know that defendant was wearing a leg brace until so informed by defense counsel. Furthermore, it was obvious that defendant had committed the instant offenses while he was incarcerated, so the trial court did not see how it prejudiced defendant. The prosecutor indicated that she had not noticed the leg brace and could not see it even though defendant was sitting across the counsel table from her.

The deputy indicated that use of the leg brace was not up to him; rather, it was on defendant when he was delivered to the court. Jail personnel had put it on, and the courtroom deputy did not have authority to take it off. The trial court again deferred to the deputy in charge of security.

After further voir dire, the trial court revisited the issue. The deputy was instructed to contact the transportation department to determine why defendant was in restraints. The trial court was inclined to have the leg brace removed unless it was given a reason for the restraints. Defendant had been cooperative and courteous.

Lieutenant Ed Harvey was the supervisor for the courtroom deputies. Lieutenant Harvey indicated that defendant was not an escape risk but was facing a three-strikes sentence. In most three-strikes cases, two deputies were placed in the courtroom for the security of the court staff and the public. However, this would require that a deputy be moved from another courtroom because of staffing problems. The deputy wanted defendant to remain in the leg brace.

The trial court again stated that the leg brace could be hidden under defendants pants so the jurors could not see it. Further, given that it was a three-strikes case, there was some potential flight risk. The trial court concluded that it would defer to the lieutenant and deputy and keep the leg brace on defendant. If defendant testified, it would be removed.

Defense counsel again stated that the entire venire could see the leg brace; it was not totally hidden under his pants. Lieutenant Harvey stated that he could not see the leg brace.

B. Analysis

Section 688 provides, No person with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. According to state decisional law, a defendant may be physically restrained at trial only if there is a manifest need for such restraints. (People v. Duran (1976) 16 Cal.3d 282, 291, fn. omitted.) Such manifest need arises if there is a showing as a matter of record of unruliness, a showing of possibility of escape, or other possible disruption by the defendant to warrant such restraints. (People v. Hill (1998) 17 Cal.4th 800, 841.)

The trial court may not delegate to law enforcement personnel the decision whether to shackle a defendant. [Citation.] (People v. Seaton (2001) 26 Cal.4th 598, 651.)

Here, the trial court completely deferred the decision to shackle defendant to law enforcement personnel. The trial court initially relied on the deputys determination that the leg brace should be left on defendant. It seemed to question its decision after concluding that defendant had been cooperative and courteous in court. However, it ultimately relied on the opinions of Lieutenant Harvey and his courtroom deputy that the leg brace should remain on at trial because he was facing a potential three-strikes sentence.

The fact that defendant was subject to a three-strikes sentence does not justify physical restraints. (See People v. Seaton, supra, 26 Cal.4th at p. 652 [fact defendant charged with violent crime does not establish sufficient threat of violence or disruption].) Moreover, the record does not support that defendant was violent or a flight risk. Accordingly, we find the trial court abused its discretion by acceding to its deputy despite the fact a manifest need for restraints does not appear in the record.

The question remains whether the presence of these restraints constituted prejudicial error. The California Supreme Court has not articulated the standard to be applied in determining whether the erroneous shackling of a defendant requires reversal. (See People v. Tuilaepa (1992) 4 Cal.4th 569, 584 [finding error nonprejudicial, but provides no standard]; People v. Vance (2006) 141 Cal.App.4th 1104, 1114.) Such review has been conducted under either Chapman^[9]or Watson^[10]depending upon the extent that the jury views the restraints. (People v. Ceniceros (1994) 26 Cal.App.4th 266, 278-279.) As recently noted by this appellate court, [W]hen a trial court abuses its discretion in shackling a defendant, evidence establishing that the jury saw the restraints means that the error rises to the level of constitutional error to be tested under the Chapman test. Thus, while a brief glimpse of defendant in shackles would not constitute prejudicial error [citations], the use of physical restraints in the courtroom without a prior showing of the manifest need for such restraints violates [People v.] Duran [(1976) 16 Cal.3d 282]. [Citation.] When such restraints are visible to the jury for a substantial length of time without meeting the Duran requirements, this trial court error may deprive defendant of his due process right to a fair and impartial jury, and may affect the presumption of innocence. [Citation.] Accordingly, when such error occurs, it rises to the level of constitutional error. (People v. Jackson (1993) 14 Cal.App.4th 1818, 1830, fn. omitted.)

In the instant case, it is not entirely clear whether any of the impaneled jurors observed defendant in restraints. Defense counsel stated that she could see the restraints and observed some jurors in the venire looking at the restraints. However, this was during jury selection, so it is impossible to determine from the record whether any of the impaneled jurors viewed the restraints. Furthermore, the trial court did not even know that defendant was in restraints until it was advised by defense counsel. Both the prosecutor and Lieutenant Harvey stated that they could not see the leg brace on defendant when he was seated at counsel table. It therefore appears from the record before this court that even if the jurors did view defendant with the leg brace, it may have been only briefly during jury selection.

Regardless, under either standard of review, we believe that any error was harmless. Initially, the jurors were well aware that defendant was in custody. Although defendant claims that such knowledge was in fact prejudicial because the jurors would surmise that he was a violent inmate, it is equally valid to assume that the jurors understood that all in-custody inmates must be restrained. In fact, when Worthen, who was also in custody, was brought to testify, he was in handcuffs during his entire testimony.

Moreover, there was overwhelming evidence of defendants guilt. When defendant was transferred to CIM for possessing a cellular telephone, all of his property was inventoried and stored. That property included the antenna and soap box. When he returned to CRC, he was given back all of his property and at no time advised the officers that the property did not belong to him. On the way back to the dormitory, he showed the heroin in the antenna to Worthen and counted his money. When defendants bed area was searched, the antenna with the heroin inside was found on top of his locker, and the money was in his locker, just as described by Worthen. There is no doubt these items belonged to defendant. The combination of a cellular telephone, the large amount of narcotics, and the cash was indicative of possession of drugs for sale.

Given the strength of the case against defendant, it is not possible that a glimpse of defendant in a leg brace could have affected the jurys assessment of the evidence. (People v. Tuilaepa, supra, 4 Cal.4th at pp. 584-585.) We find no prejudicial error.

IV

IMPROPER GANG TESTIMONY

Defendant contends that the trial court erroneously allowed testimony regarding gang drug trafficking in prison despite its ruling prior to trial that all references to gangs should be excluded.

A. Additional Factual and Procedural Background

Prior to trial, defendant brought a motion in limine to exclude gang testimony. At the oral hearing on the motion, the trial court confirmed with defendant that he was seeking to exclude all gang testimony. The prosecution sought to introduce evidence that defendant and Worthen were both Crips gang members. The trial court did not see how this was relevant to the charges of possession.

The prosecution also indicated it sought to admit gang evidence to contest defendants theory that the drugs were planted in his locker. The prosecution asserted that defendant had a high position at CRC and was a known gang member; hence, no one would dare plant anything on him.

The trial court believed that any marginal relevance that the fact defendant was a high-level Crip gang member was outweighed by the prejudicial effect of such evidence. There was no gang allegation, and the evidence would only serve to inflame the jury. The trial court concluded, So nothing about gangs.

Riverside County Sheriffs Investigator Marc Bender testified at trial that he specialized in major drug crimes and trafficking. Bender had taken classes regarding drugs and gangs in penal institutions. Defendant objected to this testimony on relevance grounds, but his objection was overruled by the trial court. Bender was asked on redirect about the command structure in jail. He responded, Well, drug distribution in prisons is regulated by gangs. Prison gangs in Southern California, thats the Mexican Mafia. Northern California would be Western Familia. Mexican Mafia or M is in charge of most drug distribution in Southern California penal system, penal institutes, and they direct who gets to deal the drugs and where the profits from those drugs go. The prosecutor asked, And once they decide who gets to deal the drugs, they sort of bless them? Is that the correct terminology? Bender responded they bless them, and protect them. There was no objection.

Defense counsel asked Bender on recross-examination if the Mexican Mafia controlled a majority of the drug distribution in penal institutions in Southern California. Bender responded they determined who sold drugs.

On further redirect, the prosecution asked whether the Mexican Mafia allowed other races to sell drugs in the prisons. Bender indicated that other races were allowed to sell drugs to take the heat off the Mexican Mafia and also to sell drugs to persons of other races who do not deal with Hispanics.

B. Analysis

Relevant evidence includes evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) The test of relevance is whether the evidence tends to logically, naturally, and by reasonable inference prove a material fact. (People v. Daniels (1991) 52 Cal.3d 815, 856.) The trial court retains broad discretion in determining the relevance of evidence. (People v. Garceau (1993) 6 Cal.4th 140, 177.)

However, relevant evidence may be excluded if its probative value is outweighed by the potential prejudice it creates. (Evid. Code,  352.)

Here, the trial court had excluded all references to gang testimony as being not very probativebecause there were no gang allegationsand overly prejudicial. Inexplicably, despite being objected to by defendant, the trial court allowed in evidence of the impact gangs have on drug trafficking in prison. As conceded by the People, the evidence should have been excluded based on the trial courts earlier ruling. We agree that although this evidence was marginally relevant to contest evidence that the drugs were planted on defendant, it should have been excluded as too prejudicial, since there was no gang allegation in this case, there was no evidence that defendant was dealing drugs with the Mexican Mafia, and the trial court had already excluded all references to gangs. (See People v. Hernandez (2004) 33 Cal.4th1040, 1049-1050 [[i]n cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal].)

That being said, the admission of this evidence did not result in prejudice. [T]he erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. [Citations.] (People v. Avitia (2005) 127 Cal.App.4th 185, 194.)

As noted by the People, defendant completely failed to explain in his opening brief how such evidence prejudiced him. Defendant in his reply brief states that he was prejudiced because this evidence gave the impression to the jurors that he was a violent man.

Defendant was never identified as a gang member. There also was no evidence that defendant was dealing drugs for the Mexican Mafia. The evidence as presented was not overly prejudicial. At most, the jurors were advised that the Mexican Mafia was in charge of drug sales in prison. Finally, as set forth above, the evidence of defendants guilt was overwhelming. Worthens testimony that he saw defendant with the heroin and cash was clearly corroborated by the fact such items were found in his bunk area. It is not reasonably probable that, had the gang evidence been excluded, defendant would have received a more favorable verdict.

V

HEARSAY TESTIMONY

Defendant contends that multiple-level hearsay presented through several correction officers was improperly admitted at trial.

A. Additional Factual Background

Prior to trial, the prosecution sought to admit testimony by Officers Anthony and Thurman that they passed Worthens statement regarding defendant possessing heroin and cash on to Officer Poveda. The prosecution sought to admit the statements for a nonhearsay purpose of combating any possible defense attacking the credibility of these officers and to show the reasons that Officer Poveda searched defendants bed area. At the oral hearing on the matter, the trial court disagreed with defendant that the evidence was actually being offered as hearsay and was properly introduced for a nonhearsay purpose.

After Officer Anthony testified that Worthen told him defendant was keeping heroin in a television antenna and money in a soap box, the trial court admonished the jurors, Now, the statements that the officer made about what Mr. Worthen told him, . . . those are hearsay statements. They are not being offered for the truth of those statements, but rather the impact the statements had on the officer. Youre going to hear more about that later; but for the effect or what the officer did with those statements. So not for the truth of the statements, but what effect those statements had on the officer, what he used those statements for. [] Im not going to ask if you understand, but, again, not for the truth of the statements, but rather the effect or what the officer did with that information. And youre going to hear more about that after lunch, but I wanted to admonish you at this time not to consider the truth of Mr. Worthens statements, those out-of-court statements.

After the jury was excused, defense counsel stated for the record that she had asked the trial court to give the admonition, even though she did not believe it cured the harm. Defense counsel also stated her objection that the statements were being admitted solely for a hearsay purpose and should be excluded. The trial court agreed that the statements were hearsay but could be used for the effect on the listener. The trial court also stated, I think some of it is mitigated by the fact that Mr. Worthen testified.

After Officer Thurman testified that Officer Anthony told him about the heroin and money, which he then passed on to Officer Poveda, the trial court overruled defendants hearsay objection and admonished the jurors, Ladies and gentlemen, Im going to admonish you, again, that information is not being given to you for the truth of what has just been said, but for what the officer did with the information, meaning passing that information on. So its being offered for a limited purpose only because its hearsay information. Hearsay evidence. Okay.

Officer Poveda testified regarding the same information being passed on to him, and again defendant made a hearsay objection. The trial court admonished the jurors, after overruling the objection, that [t]he objectionbut, again, Im going to admonish you again thatthat information or evidence is being offered for a limited purpose, not for the truth of the statements, but the effect it had on the officer and what the officer did with the information. So its being offered for a limited purpose, and thats how you are to take the evidence thats being offered.

The jury was instructed with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 303 that [d]uring the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.

B.                 Analysis

Initially, we construe defendants argument to be that the testimony of Officers Anthony, Thurman, and Poveda could not be admitted for a nonhearsay purpose because it was irrelevant. He claims that the evidence was not relevant to show why the officers conducted the search of his bed area because the parties stipulated that the search was valid. The problem with this argument is that this is the first time he has raised this claim in opposition to the testimony. Defendant objected to this evidence solely on hearsay grounds in the lower court.^[11] By failing to object to this evidence on the same grounds in the lower court as that raised on appeal, he has waived the claim. (See People v. Medina(1995) 11 Cal.4th 694, 753; Evid. Code,  353.)

Even if we were to review the claim, we would find it unmeritorious. An out-of-court statement may be admitted for a nonhearsay purpose if that purpose is relevant to an issue in dispute. (People v. Jablonski (2006) 37 Cal.4th 774, 821.)

Worthens statement passed on through Officers Thurman and Anthony, and finally to Officer Poveda, was clearly presented to the jurors for a nonhearsay purpose: the effect the statement had on the officers in deciding to search defendants bed area. The jury was continually admonished that they must view the statements only for the effect that it had on the officers. We must presume the jurors followed the instructions and considered the evidence only for its nonhearsay purpose. (People v. Young (2005) 34 Cal.4th 1149, 1214; People v. Yeoman (2003) 31 Cal.4th 93, 139.)

We disagree with defendant that this evidence was irrelevant because the parties eventually stipulated that the search was validly conducted. The stipulation came at the end of the case. At the time the evidence was admitted by the prosecution, the defense was unknown. The fact that the officers were given information that defendant possessed illegal contraband was relevant to show why they chose to search defendants locker area.

Regardless of whether the evidence was irrelevant or, as argued by defendant, in fact admitted to for a hearsay purpose to prove Worthens statement was true, its admission was clearly harmless. The erroneous admission of hearsay evidence or irrelevant evidence is subject to harmless error analysis. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Valdez (1997) 58 Cal.App.4th 494, 511.)

Initially, as recognized by the trial court, Worthen himself testified about the statement. It was up to the jurors to determine whether they believed Worthens statement or not. The fact that the same statement was repeated over and over to several officers does not affect whether the jurors initially believed Worthens statement. Moreover, the fact that defendant had drugs stashed in a television antenna and cash in a soap box as Worthen claimed certainly diminishes any potential prejudice.

VI

STRIKING OF TESTIMONY

Defendant contends that the trial court erroneously struck testimony by Worthen that he was still in county jail (rather than state prison) custody in order to complete sociology courses he was taking.

A. Additional Factual Background

Prior to trial, defendant sought to admit evidence that Worthen was receiving leniency for his testimony. Finding that no evidence had been presented to support that he received leniency, the trial court excluded any references suggesting he was treated more favorably in exchange for his testimony.

Worthen testified at trial that he was currently in custody awaiting transfer to state prison. During redirect examination by the prosecution, Worthen indicated that he had not yet been sentenced on the current charge, for which he had made a deal. Worthen indicated that it was common for persons who have not been sentenced to remain in county jail awaiting transfer into prison. Worthen denied that he was being kept in county jail as a favor for his testimony.

The prosecutor again asked Worthen if he knew why he was in county jail. Defendant objected on relevance grounds. Worthen responded, I am at this point completing my associates degree in sociology through the SMART program with the La Verne University correspondence course; he was being allowed to remain in county jail for that reason.

At the end of the redirect, the trial court advised the jurors: But there is one thing I wanted to tell you. Mr. Worthen stated he is staying in L.A. County Jail. The reason he gets to stay there, not go to state prison, is because hes completing his associates degree through the SMART program. You are to completely disregard that statement. Does everyone understand that you are to completely disregard that statement, not use that for any purpose?

After the jurors left, the trial court advised the parties, For counsels information, the reason I struck that, there was absolutely no foundation for that statement at all. And thats the reason I wanted to have the jury disregard that. Neither party objected.

B. Analysis

Defendant has waived any claim that the trial court erred by striking the testimony. Defendant originally objected to the question by the prosecutor and, after the trial court struck the testimony, made absolutely no objection to the trial courts admonition to the jurors. Even when defendant was specifically asked if there was any objection, he remained silent. Defendants failure to make a contemporaneous objection waives the claim on appeal. (People v. Carter (2005) 36 Cal.4th 1114, 1204.)^[12]

It is impossible to determine based on the record before this court the reason the trial court determined that the testimony must be struck for a lack of foundation. Nonetheless, we conclude that defendant cannot possibly show prejudice. (People v. Watson, supra, 46 Cal.2d at p. 836.)

Defendant contends striking the testimony was prejudicial because Worthen had testified that he was not receiving any leniency on his sentence. Defendant contends the fact that he was being allowed to remain to finish the sociology course was evidence of leniency. However, it is equally inferable that Worthen was not receiving leniency due to his testimony, but rather was being encouraged to complete his studies. Moreover, as set forth, ante, there was substantial evidence of defendants guilt in light of the $2,000 worth of drugs and large amount of cash found in his locker and locker area. Even if the jury discredited Worthens testimony (which is highly improbable, since it was fully corroborated), strong evidence of defendants guilt remained.

VII

CELLULAR TELEPHONE EVIDENCE

Defendant claims that the admission of evidence that his possession of a cellular telephone violated prison rules and testimony that such phones were commonly used to facilitate drug trafficking in prison was improper.

A. Additional Factual and Procedural Background

Prior to trial, the prosecution sought to admit evidence that defendant previously possessed the cellular telephone for the nonhearsay purpose of showing that Officer Poveda was aware that defendant had previously possessed contraband, which contributed to the search of defendants locker, and to present expert testimony that it was used in drug trafficking. Defendant opposed the evidence on the ground that the prosecution sought to admit the cellular telephone as a rules violation under Evidence Code section 1101, subdivision (b). The prosecution denied it was seeking to admit the evidence under Evidence Code section 1101, subdivision (b), as an expert would testify that the cellular telephone was related to the instant charges.

The trial court believed that an expert could testify that the cellular telephone was consistent with drug sales and that this was relevant testimony.

At trial, testimony was presented that on July 31, 2004, a cellular telephone, an adapter, and an earpiece were found during a random search in defendants bed area.^[13] The phone was not checked to see if it worked or had service. Defendant told one of the correctional officers that the phone belonged to him and that he was responsible for all of the phone numbers on the confiscated phone.

The prosecution presented expert testimony that cellular telephones are not allowed in prison. Cellular telephones are preferred by inmates because they cannot be monitored by prison staff. In the experts opinion, a cellular telephone was not possessed to call friends and family, but rather was used to engage in illegal activity that an inmate would not want monitored. There would be no reason to smuggle into a prison a cellular telephone that did not work.

During discussion of the jury instructions, the trial court rejected that the cellular telephone was being used as Evidence Code section 1101, subdivision (b) evidence. It was being used to prove drug sales. Defense counsel withdrew the request for the section 1101 instruction despite the fact that Officer Poveda testified that defendant went to CIM because of the telephone.

B.                 Analysis

Defendant claims that the evidence of the cellular telephone should have been excluded as irrelevant because there was no evidence that the telephone worked. Furthermore, there was no evidence it was used for these charges.

The cellular telephone was confiscated on July 31, 2004. Defendant was sent to CIM, and his property, which included the antenna containing heroin and cash in the soap box, was stored at the same time. It is a reasonable inference from the expert testimony that defendant was using the cellular telephone to facilitate his drug sales. Expert testimony can be presented to prove drug sales. (See People v. Harris (2000) 83 Cal.App.4th 371, 374-375.) Furthermore, there is little credibility to defendants argument that there was no evidence that the phone was operable. To the contrary, the cellular telephone was found with an adapter and earpiece on the same day the drugs and money were stored. Moreover, pursuant to the expert testimony, it would be inconceivable for an inmate to go to the trouble of smuggling in a phone, which was considered contraband, if it was not working. Defendant himself inputted numbers into the phone, showing his belief it worked. Evidence of the cellular telephone was clearly relevant to whether defendant was conducting drug sales from prison.

Defendant also claims that the evidence was improperly used as Evidence Code section 1101, subdivision (b) evidence. Evidence Code section 1101, subdivision (b) provides, Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act. Initially, he has waived this claim by admitting at the end of the case that he was not seeking an instruction on the grounds that it was section 1101 evidence. Moreover, the prosecution did not admit the evidence to show his criminal disposition or to prove some fact; rather, it was admitted in an effort show that Officer Poveda had knowledge of defendants previous possession of contraband, which contributed to the search.

Even if we were to assume that the trial court erred by admitting evidence of the cellular telephone to show defendant was engaged in drug sales, and that it was Evidence Code section 1101 evidence, any error was harmless because it is not reasonably probable that the jury would have reached a more favorable result to defendant had the challenged evidence been excluded. (People v. Carter, supra, 36 Cal.4th at p. 1152; People v. Malone (1988) 47 Cal.3d 1, 22; People v. Watson, supra, 46 Cal.2d at p. 836.) Without such evidence, defendant was still in possession of $2,000 worth of heroin and $795 in cash. This alone was evidence of sales. Furthermore, even if the jury considered the evidence as a rules violation, it was no more prejudicial than the fact he was already in prison. Defendants claim is rejected.

VIII

IMPROPER DENIAL OF ROMERO MOTION

Defendants final claim is that the trial court erred by refusing to strike his prior convictions.

A. Additional Factual Background

During a bench trial, the trial court found that defendant had suffered four prior serious or violent felony convictions.

Defendant filed a Romero motion claiming the strike priors should be dismissed because in the prior crimes he was merely an aider and abettor, he had committed no further crimes, he had performed well in prison, and he did not present a danger to society. The prosecution filed opposition, noting that defendant had several administrative violations while in prison. The trial court reviewed both motions.

At the oral hearing, defendant presumed the court understood its discretion under Romero. Counsel argued that defendant had only minor infractions while in custody. This current offense was a victimless crime. The prior offenses were based on aiding and abetting, and he was not identified as the perpetrator on the sexual offenses. Defendant had supportive family, who spoke to the trial court.

The trial court agreed that defendant had been very good in prison. It agreed that this was a difficult case. It recognized that it was the courts job to determine whether defendant fell outside the spirit of the three strikes law. Although the priors had been committed 20 years earlier, they were extremely serious. The trial court believed defendant had maintained a good record in prison. It concluded that the possession of heroin for purposes of sale in prison was extremely serious. It noted, A good deal of the chaos and violence erupting in our state prison system stems directly from the ongoing drug trafficking that is endemic in our prisons. The motive is greed; nothing more, nothing less. What is difficult to comprehend in a case like this is a man with as much to lose as [defendant] selling heroin to make a few bucks when he was going to get out of prison in three years, when this offense occurred. It felt that defendant was aware of the dangers of drugs and the havoc it was wreaking on the system but decided to sell drugs to make money.

The trial court concluded, In the eyes of the Court, when a 44-year-old man in prison for over 20 years is still selling heroin, despite all the attendant dangers posed by that drug, and knowing that he was in prison for having been convicted of raping and orally copulating, in concert, by force, a woman, in his youth, the Court cannot say he falls outside the spirit of the three-strikes law passed by both the legislature and the People of the State of California. Defendants motion was denied.

B. Analysis

In Romero, the Supreme Court held that it is within a trial courts discretion to dismiss one or more strike priors in the interest of justice under Penal Code section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The key to this analysis is 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 schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. [Citation.] (People v. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.)

[A] trial courts refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 375.) [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) The circumstances must be extraordinary for a career criminal to be deemed outside the scheme of the three strikes law. (Id. at p. 378.)

Here, defendants circumstances are not extraordinary. Defendants record reflects that on May 4, 1983, he was convicted of seven counts of second degree robbery ( 211), three counts of first degree burglary ( 459), five counts of assault with a deadly weapon ( 245, subd. (a)), two counts of oral copulation ( 288a, subd. (d)), one count of forcible rape ( 261, subd. (2)), and two counts of grand theft ( 487, subd. (3)). These charges apparently arose from a series of home-invasion robberies. He was sentenced to 46 years 8 months in prison. Prior to that, according to the record before this court, he had two misdemeanor convictions. Defendants prior crimes were of the worst kind.

Moreover, the current offenses were serious. Defendant possessed over $2,000 worth of heroin in prison. He also had a large amount of cash, which is considered contraband in prison.

Although defendants prior convictions were remote in time, up until the time that defendant committed the instant offenses, he was in prison custody. The fact that he may have led a blameless life in prison up until the instant charges certainly does not exempt him from the three strikes law sentencing scheme.

We believe both that the trial court was aware of its discretion to strike the prior convictions and that it did not abuse that discretion by finding that defendant did not fall outside the spirit of the sentencing scheme.

IX

STAYING OF A PRIOR PRISON TERM ENHANCEMENT

Although not raised by either party, we note that the trial court found the prior prison term enhancement true pursuant to section 667.5, subdivision (b). However, it stayed sentence on the prior prison term.

A trial court must either impose or strike a prior prison term enhancement pursuant to section 667.5, subdivision (b). (People v. Langston (2004) 33 Cal.4th 1237, 1241 [the trial court may not stay the one-year enhancement, which is mandatory unless stricken]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 [the court must either impose the prior prison enhancements or strike them].) The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.] (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)

Here, since the trial court gave no rationale for imposing the prior prison term consecutive to the 25-years-to-life sentence and then choosing to stay it, we cannot determine on the state of the record whether the trial court would have determined that it should have imposed the strike or struck it had it known it could not stay the prior enhancement. As such, we cannot strike or impose the prior on our own motion; we must remand to the lower court. On remand, the trial court must either strike defendants prior prison term pursuant to section 1385, with stated reasons for doing so, or impose the enhancement consecutively to the others and to the principal count as required by section 667.5, subdivision (b).

IX

DISPOSITION

The sentence is reversed and the matter remanded for the sole purpose of the trial court either imposing or striking the prior prison term enhancement; it shall otherwise resentence defendant in accordance with its original sentence. In all other respects, the judgment is affirmed.

/s/ Richli

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ King

J.

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^[1]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

^[2] This was the third trial for defendant. The jury was unable to reach a verdict in the first trial, and a mistrial was granted in the second trial due to discovery violations.

^[3] All further statutory references are to the Penal Code unless otherwise indicated.

^[4] The trial court also imposed a consecutive one-year sentence for the section 667.5, subdivision (b), prior prison term but stayed the sentence.

^[5] Worthen was granted immunity to testify. Worthen was in custody at the time he testified and was wearing handcuffs. He had numerous prior convictions.

^[6] At the end of the defense case, the parties stipulated that the search of defendants locker and area was proper.

^[7] Inmates were not allowed to have money in prison and it was considered contraband. Cash was used by inmates to buy illegal contraband, including drugs.

^[8] Defense counsel described the leg brace as a big large brown strap around his ankle, which was noticeable when he sat down.

^[9]Chapman v. California(1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].

^[10]People v. Watson (1956) 46 Cal.2d 818, 836.

^[11] Defendant states, without citation to the record, that he objected to this evidence on relevance grounds. We have been unable to find any such objection in the record.

^[12] For the first time in his reply brief, defendant claims that if this court concludes that he has waived this claim on appeal, then he received ineffective assistance of counsel due to counsels failure to object. Since defendant has provided no reason for failing to raise this argument in his opening brief, we do not consider the argument raised for the first time in the reply brief. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) Furthermore, since we cannot find any prejudice as discussed, post, he cannot show ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.CT. 2052, 80 L.Ed.2d 674] [defendant must affirmatively show prejudice to establish ineffective assistance of counsel].)

^[13] Defendant made an objection to admission of the cellular telephone evidence prior to the testimony being offered.