P. v. Sanchez

Filed 6/20/08 P. v. Sanchez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

Defendant Steven M. Sanchez was convicted by a jury of transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)), possession of cocaine base for sale (id.,  11351.5), misdemeanor child endangerment (Pen. Code,  273a, subd. (b)), and possession of a firearm by a felon (id.,  12021, subd. (a)). He was also found to have been armed with a firearm in connection with the possession for sale charge (id.,  12022, subd. (c)) and to have been convicted on two prior occasions of possession of cocaine base for sale (Health & Saf. Code,  11370.2, subd. (a)). He was sentenced to an aggregate, unstayed term in state prison of 14 years eight months.

Defendant appeals, contending: (1) his Sixth Amendment rights were violated when the trial court denied his motion for continuance to obtain new counsel; (2) his pretrial admissions should have been excluded as involuntary; (3) his identity was not adequately established on the prior conviction allegations; (4) the prosecutor committed misconduct in his argument to the jury on the meaning of abiding conviction in the reasonable doubt instruction; (5) the trial court abused its discretion in dismissing one of the jurors during deliberations; and (6) the abstract of judgment must be amended to reflect the correct fines imposed. The People concede the last point and raise their own claim of error in the abstract. We direct that the abstract of judgment be amended as necessary and otherwise affirm the judgment.

Facts and Proceedings

Defendant was the subject of surveillance by the Sacramento County High Intensity Drug Trafficking Area task force. On March 2, 2006, police officers were preparing to serve a search warrant covering defendants person and residence. At approximately 11:00 a.m., defendant came out of the residence with his girlfriend, Jassna Barnes, and two minor children. They got into a car and drove away. The police executed a traffic stop and detained them.

Defendant was on searchable probation at the time. Barnes was not. Defendant was searched and found in possession of $525 in cash and a cell phone. He was placed in the back of a patrol car and driven back to the residence. Barnes and the children were driven back to the residence, taken inside, and seated in the living room while the officers conducted a search of the residence.

A drug-sniffing dog alerted to a dresser drawer in the master bedroom and a drawer in the kitchen. There were no narcotics found in either location. However, in the kitchen drawer, police found two sets of scales, one with what appeared to be rock cocaine residue on it. In the master bedroom, police found a loaded nine millimeter handgun between the mattress and the box springs of a bed.

Detective Kelly Clark, who was in charge of the search, suspected that defendant may have transferred narcotics to Barnes. In her experience, people on searchable probation often hide their drugs on people who are not on searchable probation. Clark told Barnes she was going to search her and asked if Barnes had anything illegal on her. Barnes asked what would happen to her children if she did. Clark told Barnes if she had anything like narcotics, she needed to turn them over. Barnes asked again what would happen to her children. When Clark again told Barnes she needed to turn over anything she had, Barnes reached into her pants and pulled out a plastic bag containing four individual bags of an [o]ff-white, rock-like substance. The bags contained 3.52, 3.46, 3.44, and 1.24 grams respectively of cocaine base. Barnes was arrested.

Defendant, who was still out in the patrol car, was informed the gun and cocaine had been found. He asked to speak with Detective Clark. When Clark came outside and approached defendant, he asked her why his girl was being arrested. Defendant told Clark the dope and the gun were his. Defendant said everything in the house was his and wanted to know why Barnes was being arrested.

Both defendant and Barnes were charged with transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)), possession of cocaine base for sale (id.,  11351.5), and misdemeanor child endangerment (Pen. Code,  273a, subd. (b)). They were also charged with an enhancement for being armed with a firearm in connection with the possession for sale charge (id.,  12022, subd. (c)). Defendant was charged with an additional offense for possession of a firearm by a felon (id.,  12021, subd. (a)) and with two prior convictions for possession of cocaine base for sale (Health & Saf. Code,  11370.2, subd. (a)).

Defendant and Barnes were tried together. On the prior offense charges, evidence was presented that on March 4, 1993, police stopped a vehicle driven by defendant and found 12 individually packaged rocks of cocaine base with a total weight of 2.6 grams under the drivers seat. On July 14, 2002, defendant was searched and found in possession of a bag of rock cocaine. Two additional bags of rock cocaine were found near where defendant stood. Each bag contained two grams of the substance.

Defendant was found guilty on all charges. He was sentenced on the possession for sale charge to the middle term of four years plus four years for the weapon enhancement. On the transportation charge, defendant received the middle term of four years, but that term was stayed pursuant to Penal Code section 654. On the weapon possession charge, defendant received a consecutive one-third middle term of eight months. Finally, defendant received two consecutive terms of three years each on the priors, for a total, unstayed term of 14 years eight months.

Discussion

I

Continuance to Obtain New Counsel

Defendant contends the trial court abused its discretion in denying his request for a continuance at the start of trial to allow him to obtain new counsel. He argues there was no justification for the courts ruling inasmuch as the jury had not yet been selected, all witnesses were local, he had made no prior requests for continuance, and the court had previously granted a request by the People for a continuance.

Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23 Cal.3d 412, 422.) [D]ue process of law, as it is expressed through the right-to-counsel provisions of the state and federal Constitutions, comprehends a right to appear and defend with retained counsel of ones own choice. (People v. Byoune (1966) 65 Cal.2d 345, 346.) Limitations on this right are carefully circumscribed. Thus, the right can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. [Citations.] (People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).)

A necessary corollary of the right to retain counsel is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. [Citations.] [Citations.] In addition, counsel, once retained, [must be] given a reasonable time in which to prepare the defense. [Citation.] (Courts, supra, 37 Cal.3d at p. 790.)

In this matter, trial was originally set for June 8, 2006. It was later reset for July 6. On July 6, the trial date was moved to August 14. On August 14, the matter was trailed to August 16. On August 16, defendant filed a motion to have his appointed counsel relieved, claiming ineffective assistance. The motion was heard and denied. The case was trailed to August 22. On August 22, defendant made another motion to have appointed counsel relieved. The motion was heard and denied. At the time, defendant told the court he was trying to retain counsel but had been unable to meet with him. The court told defendant that trial was scheduled to begin in two days and retained counsel had to be ready to proceed then. The matter was continued to August 24 for consideration of defendants motion to suppress his pretrial statements and for jury selection.

On August 24, the court denied defendants motion to suppress. Defendant and Barnes jointly requested a continuance to review discovery. The matter was continued to August 28 for jury selection.

On August 28, counsel for defendant informed the court that defendant is actively trying to finalize arrangements to retain Jeb Martin to represent him and that Martin would be ready to proceed in about two weeks. Defendant requested a two-week continuance. The court denied the request. Defendant then made another motion to relieve appointed counsel. The motion was heard and denied. Defendant then moved to represent himself, and that motion was deferred to give defendant an opportunity to observe jury selection. Jury selection commenced.

The following day, defendant again requested a continuance of two weeks so he can complete his familys efforts to retain an attorney, Jeb Martin. After reviewing the procedural history of the matter, the court denied the motion.

A trial courts denial of a request for a continuance to seek private counsel is reviewed under an abuse of discretion standard. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367.) A continuance may be denied if the accused is unjustifiably dilatory in obtaining counsel, or if he arbitrarily chooses to substitute counsel at the time of trial. (Courts, supra, 37 Cal.3d at pp. 790-791.) In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, particularly in the reasons presented to the trial judge at the time the request [was] denied. (Id. at p. 791.)

Here, the reason for defendants request for a continuance is clear. He was dissatisfied with his appointed counsel and, when he could not convince the court to appoint new counsel, he sought an opportunity to retain his own attorney. However, defendant provides no explanation for his delay in seeking new counsel. When he first brought the matter to the courts attention on August 22, he said he had been unable to meet with his selected attorney. On the day jury selection was to begin, August 28, defendant told the court he was actively trying to finalize arrangements with new counsel. The next day, defendant again said his family was trying to retain counsel for him.

Thus, it is clear at the time of the courts ruling that defendant had not yet retained new counsel. Nor was there any indication he would be able to do so any time soon. Thus, even if it might have been reasonable to give defendant two weeks to allow new counsel to prepare for trial, there was no indication when the two weeks would begin. It is mere speculation that new counsel would have been ready to begin trial in two weeks.

Although a trial court should normally accommodate a defendants request to obtain private counsel of his choice, it is not required to do so where such accommodation would result in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. (Courts, supra, 37 Cal.3d at p. 790.) Here, defendants request for continuance to obtain new counsel did not come until the day jury selection was to begin. By that time, defendant had not yet completed arrangements with his selected attorney, if he had ever spoken to him at all, and that attorney had not yet appeared in the matter to assure the court he would be ready to proceed within the time requested. Under these circumstances, the trial court was not required to accommodate what might turn out to be an open-ended request for continuance to allow defendant to arrange for private representation. There was no abuse of discretion.

II

Admission of Defendants Incriminating Statements

Defendant contends the trial court erred in admitting his statements to Detective Clark at the time of arrest, in which he admitted the drugs and gun belonged to him. Defendant argues those statements were not voluntary but were instead induced by false promises that, if he acknowledged ownership, Barnes would not be arrested and the children would not be placed with Child Protective Services (CPS). We find no error.

[T]he use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions. . . . In California, before a confession can be used against a defendant, the prosecution has the burden of proving that it was voluntary and not the result of any form of compulsion or promise of reward. [Citation.] . . . [T]he voluntariness of the statements must be proved by a preponderance of the evidence at trial. [Citation.] (People v. Cahill (1994) 22 Cal.App.4th 296, 310.)

A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. (People v. Maury (2003) 30 Cal.4th 342, 404.) The question is whether the defendants will was overborne at the time he confessed. (Ibid., quoting Lynumn v. Illinois (1963) 372 U.S. 528, 534 [9 L.Ed.2d 922, 926].)

At the beginning of trial, defendant moved in limine to exclude his statements to Detective Clark. The trial court conducted an Evidence Code section 402 hearing at which Clark and defendant testified. Clark testified that, after the drugs were found on Barnes, another officer took defendants statement and defendant denied any knowledge of the drugs. However, Clark was later told that defendant wanted to speak with her about the drugs and she went outside to see him. Defendant asked why Barnes was being arrested when the stuff that [they] had found--the dope and the gun--were his . . . . Clark testified that she explained to defendant why Barnes was being arrested and that CPS would have to be called if both parents were arrested. She denied telling defendant that CPS would not have to be called if he admitted the drugs were his.

Defendant testified that, while he was outside in the patrol car, an officer approached him and told him the gun had been found in the mattresses and the drugs had been found on Barnes. The officer further told defendant that Clark had said she would not take Barnes to jail or call CPS if defendant admitted the drugs were his. Defendant said he asked to speak with Clark and, when she arrived, Clark told defendant she had informed Barnes she would not arrest her or call CPS if defendant claimed the drugs. Clark further told defendant that Barnes had told her the drugs belonged to defendant. According to defendant, only then did he admit the drugs were his.

The trial court found Clark to be the more credible witness and denied the motion to suppress.

Later, in connection with another matter, defense counsel informed the court that Clark had revealed that, at the time the drugs were found on Barnes, Barnes asked what was going to happen to her and the children. According to defense counsel, Clark responded that if defendant claimed the drugs, Barnes might not go to jail. Defense counsel requested reconsideration of his motion to suppress in light of this new evidence. Defense counsel argued that the fact Clark made this statement to Barnes supports defendants claim that she also made it to him.

The prosecution objected, arguing that the statement made to Barnes was all part of a bluff to get her to turn over the drugs voluntarily. The prosecutor reiterated that Clark denied making the statement to defendant.

The trial court declined to reopen the Evidence Code section 402 hearing.

Defendant contends the court erred in admitting his statements to Detective Clark, because the evidence supports a finding that his statements were involuntary. Defendant argues it does not matter who told him Barnes would not be arrested if he claimed the drugs. According to defendant, even if Clark denied making the false promise, his testimony that some other officer did so is uncontradicted.

Assuming a statement made to defendant by the police that Barnes would not be arrested if he claimed ownership of the drugs would render his subsequent admissions involuntary, defendants argument presumes the trial court was required to accept his uncontradicted, self-serving testimony that some officer other than Clark made such a statement. Not so. Clark testified that she did not make any such statement to defendant, and defendant testified otherwise. The trial court made a credibility determination in favor of Clark. Having concluded defendant lied about this, the trial court reasonably concluded defendant lied about the rest as well.

Where the evidence before the trial court is conflicting, this court must accept that version of events which is most favorable to the People, to the extent that it is supported by the record. (People v. Hogan (1982) 31 Cal.3d 815, 835, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) The record here supports the trial courts implicit determination that no officer made a false promise to defendant in order to induce him to admit ownership of the drugs.

III

Identity Issue

Defendant contends the trial court erred in taking from the jury the issue of whether, in connection with the prior conviction allegations, he was the person who had committed those crimes. He argues the trial court did so by erroneously instructing the jury that he was the person identified in various exhibits used to prove those convictions.

Defendant acknowledges this issue has already been resolved against him by the State Supreme Court in People v. Epps (2001) 25 Cal.4th 19 (Epps). He raises the issue here simply to preserve it for federal appeal.

Penal Code section 1025 authorizes the procedure used by the trial court. It states that the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury. (Pen. Code,  1025, subd. (c).) In Epps, the court indicated that while other issues regarding a prior conviction may remain for the jury to decide, such as whether there was in fact a prior conviction at all, the question of identity of the perpetrator remains for the court. (Epps, supra, 25 Cal.4th at pp. 23-28.)

We are bound by Epps (Auto Equities Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore reject defendants contention.

IV

Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct in his arguments to the jury by misstating the meaning of abiding conviction in the standard reasonable doubt instruction. He argues the prosecutor erroneously informed the jury it was not necessary for them to have an abiding conviction over time in order to find defendant guilty beyond a reasonable doubt. According to defendant, this was wrong, because abiding means something that will endure over time. We conclude defendant forfeited this issue by failing to object at the time of argument. We further conclude defense counsels failure to object did not amount to ineffective assistance.

Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v.Strickland (1974) 11 Cal.3d 946, 955.) It is not necessary to show bad faith (People v.Bolton (1979) 23 Cal.3d 208, 213-214), but it is necessary to show prejudice (People v.Epps (1981) 122 Cal.App.3d 691, 706).

[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]. (People v. Marshall (1996) 13 Cal.4th 799, 831.) Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.] (People v. Bell (1989) 49 Cal.3d 502, 538.)

The jury was instructed pursuant to CALCRIM No. 220 as follows:

The fact that a criminal charge has been filed against each of the defendants is not evidence that the charge is true.

Do not--you must not be biased against a defendant [sic] just because they have been arrested, charged with a crime or brought to trial.

A defendant in a criminal case is presumed to be innocent.

This presumption requires that the people prove each element of the crime and special allegation beyond a reasonable doubt.

Whenever I tell you the people must prove something I mean they must prove it beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction the charge is true.

The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In deciding whether the people have proved the case beyond a reasonable doubt you must impartially compare and consider all the evidence that was received through the entire trial.

Unless the evidence proves that the defendants are guilty beyond a reasonable doubt they are entitled to an acquittal and you must find them not guilty. (Italics added.)

During opening argument, the prosecutor said the following about the reasonable doubt standard: Based on the entire comparison and consideration of all the evidence it leaves you not [sic] having an abiding conviction of the truth of the charge. What that means is that when youre back there in the jury room you have to come to a decision that you believe is right--okay--today based on the evidence you hear--okay--not two years from now. Okay. A long time here doesnt mean that if someone asked you in about two years you have to feel the same way. No. The evidence is fresh in your mind today. The law will be fresh in your mind today. You do what you think is the right thing today. Thats what beyond a reasonable doubt is.

Counsel for defendant provided the following rejoinder in his argument: Mr. Kane [the prosecutor] accurately--accurately predicted one thing I was going to tell you. That what matters tomorrow is important because of that word an abiding conviction. That leaves you with an abiding conviction. Yes, of course it matters what you think today. But in order for you to have an abiding conviction the law requires you have to have that state of mind that youre not going to find yourself being in the same shoes of some of those people we see months after being on a jury on TV trying to explain we made a mistake and voted the wrong way and we were--they wish they could change their mind. Whether they wrongly felt they voted to convict or acquit, its always troublesome to see people do that--to see people on TV a few minutes later saying heres what--I voted in a way I think was wrong. I--I dont know why I voted that way. I wish I could take it back.

Thats not an abiding conviction. Thats a conviction that happens as a result of sometimes--maybe its a personality thing, its group dynamic, its expediency. Its how someone feels on a certain day. Its all things that we cant let happen in a criminal case because you do have to live with it. Everyone has to live with it. I have to live with the result. Mr. Kane does. You have--you do. And certainly Mr. Sanchez and Miss Barnes have to live with it.

So when you have an abiding conviction, well, what does that mean? Well, lots of people--it means different things to different people. But to me when you have an abiding conviction its something youre comfortable with after the fact. Its along the lines of I left that job for the right reasons and Im not going to look back no matter what happens in the future. I left that--whatever important thing in your life that you left--that you did it for the right reasons, not because of some others. [] . . . []

Because even though today matters the law tells you you need to have the abiding conviction. You do need to consider your state of mind and how its going to be over time.

In his rebuttal argument, the prosecutor got the last word on the reasonable doubt standard: [I]ts not an unattainable standard. Overwhelming evidence also isnt required. Abiding conviction over time isnt required. These are not required anywhere in the legal instructions. Whats required of you is as long as you are deliberating jurors in this case that you apply the facts to the law and make a decision that you think is right today. Thats what is required of jurors. (Italics added.)

Defendant failed to object to any of the prosecutors arguments. As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. [Citations.] (People v. Hill (1998) 17 Cal.4th 800, 820-821.)

Defendant does not claim an objection would have been futile or an admonition would not have cured the harm. Instead, he contends his counsels failure to object amounted to ineffective assistance.

A criminal defendants constitutional right to the assistance of counsel entitles the defendant not to some bare assistance but rather to effective assistance. (People v.Ledesma (1987) 43 Cal.3d 171, 215.) In order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citations.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Jennings (1991) 53 Cal.3d 334, 357.)

Defendant cannot satisfy the first requirement of an ineffective assistance claim, because he cannot show counsels failure to object fell below an objective standard of reasonableness. Blacks Law Dictionary defines abiding conviction as [a] settled conviction; a definite conviction based on a thorough examination of the case. (Blacks Law Dict. (7th ed. 1999) p. 335, col. 2.) In Hopt v. Utah (1887) 120 U.S. 430 [30 L.Ed. 708], the United States Supreme Court gave the following description of the term abiding in the context of a reasonable doubt instruction: The word abiding here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence. (Id. at p. 439 [30 L.Ed. at p. 711]; see also Victor v. Nebraska (1994) 511 U.S. 1, 15 [127 L.Ed.2d 583, 596].) Likewise, the Court of Appeal, in People v. Castro (1945) 68 Cal.App.2d 491, 500, indicated the term abiding conviction is the equivalent of settled conviction and is used in the sense of convince. In People v. Brigham (1979) 25 Cal.3d 283, our Supreme Court discussed the term abiding as [t]he lasting, permanent nature of the conviction. (Id. at p. 290.) However, according to the court, this is not a temporal reference but a reference to how strongly and how deeply [the] conviction must be held. (Id. at pp. 290-291.) Thus, the term abiding conviction in the reasonable doubt instruction is a reference to the degree and certainty of the belief, not how long the belief must be held.

Defendant cites two cases which, he argues, establish that abiding conviction refers to a belief that must be held over time. In People v. Tran (1996) 47 Cal.App.4th 253, the court stated: [W]e believe that in the context of the complete instruction, the use of the phrase abiding conviction, as a conviction which will last over time, adequately encompasses the appropriate depth or intensity of the jurys certainty and satisfies the requirements of due process. (Id. at p. 263.) However, notwithstanding the courts reference to a conviction which will last over time, the issue before the court was whether the elimination of the phrase to a moral certainty from the reasonable doubt instruction improperly lowered the Peoples burden of proof. The court concluded use of the term abiding conviction in the instruction was satisfactory because it required the jury to have an appropriate level of certainty in its decision. One way for this level of certainty to be reached is through a belief that will last over time. However, it is not the only way. A strong belief at a fixed point in time will also suffice.

The other case cited by defendant, People v. Haynes (1998) 61 Cal.App.4th 1282, actually undercuts his argument. In that case, the defendant argued the standard reasonable doubt instruction was inadequate because, among other things, it suggested a standard of duration rather than certainty of conviction. The court said: As for abiding conviction connoting duration but not the degree of conviction, defendant unduly isolates abiding. Abiding may commonly mean lasting or enduring, without specifying degree, but here it modified the word conviction, and jurors were told this meant being convinced beyond a reasonable doubt--meaning something more than a possible or imaginary doubt. (Id. at p. 1299.) In other words, abiding when coupled with conviction refers to a degree of certainty rather than a duration of certainty.

In the present matter, the competing arguments of the prosecution and defense went to the degree of certainty required for the jury to reach a verdict against defendant. In this regard, the defense might reasonably argue that, in order to have the requisite degree of certainty, it is necessary for the jury to believe its conclusion is one that will endure. By the same token, the prosecution was correct to argue that [a]biding conviction over time isnt required. In other words, one measure of a jurys certainty may be a belief that its decision will not change over time. However, a jury can also be sufficiently certain of its conclusion without giving any thought to how it might see things in the future. The prosecutor did not say the jury could not consider how it might see the matter in the future, only that this was not a prerequisite for having an abiding conviction.

Because the prosecutor did not misstate the law regarding abiding conviction, defense counsel was in no position to object to the prosecutors arguments. His failure to do so therefore was not ineffective assistance.

V

Dismissal of a Juror

During deliberations, the jury sent out the following two questions: What can be done if a juror is ignoring evidence and proclaiming themselves [sic] a [sic] expert? and What if its [sic] believed a jury [sic] omitted fact [sic] while being chosen? The court questioned the jury foreman outside the presence of the other jurors. In response to the courts question about what is meant by ignoring the evidence, the foreman explained: Blatantly saying Im going to ignore the evidence, that I used to do drugs or was involved with drugs, and Im an expert on what happens with drugs. The foreman explained juror No. 10 had not revealed her drug background when one of the attorneys had questioned the panel about drug use.

After the foreman was excused, the court proposed to question three jurors other than No. 10 to test the accuracy of the foremans assessment. Defense counsel asked that juror No. 10 be brought in, and the court indicated it might do so after interviewing the other three.

The first juror was brought in and questioned. He explained that juror No. 10 was not ignoring the evidence but was looking at it from a different perspective because of her experience with the drug trade. The juror explained that juror No. 10 was acting as a second expert to rebut the testimony of the expert presented by the People on the issue of whether the drugs were possessed for sale. Juror No. 10 had apparently told the others that, while the prosecutions expert said the quantity turned over to police by Barnes demonstrates the drugs were intended for sale, she had possessed similar amounts for personal use.

The other two jurors were questioned and gave essentially the same report. Juror No. 10 was deliberating but found the prosecutions expert not to be credible because of her own experience in the drug trade.

The trial court found two instances of misconduct with respect to juror No. 10: (1) she concealed her drug background during voir dire; and (2) she was considering evidence other than what had been presented in court. Juror No. 10 was excused and deliberations began anew with one of the alternates.

Defendant contends the trial court erred in discharging juror No. 10 without first examining her. However, except for citing People v. Burgener (1986) 41 Cal.3d 505, defendant provides no legal basis for why the court was required to examine juror No. 10. In Burgener, the court indicated merely that it is the courts duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged. (Id. at p. 520.) Here, the court examined four jurors and got essentially the same story from each. This was sufficient inquiry for the court to assess what was happening in deliberations.

At any rate, the court provided as one alternate basis for discharging the juror the fact that she failed to disclose her drug background during voir dire. Defendant contends this was not misconduct, because juror No. 10 was never asked any question that would have prompted her to reveal it. According to defendant, neither the jury questionnaire, the court, nor the attorneys asked any questions about personal drug use. We are not persuaded.

The jury panel was informed at the beginning of voir dire that the case involved charges of transportation and possession for sale of cocaine base. After asking the potential jurors about their experiences with law enforcement and whether they or anyone they knew had ever been arrested, the court asked if there was anything he should have asked that the attorneys need to know about them that would relate to their ability to be fair. Nobody volunteered anything. Questioning was then turned over to the attorneys.

One juror was questioned about her ability to be fair in light of her experience, described earlier, with drug addicts. She was specifically asked whether she could be fair where the charge was possession for sale. Later, the prosecutor asked: [I]s there anything that anybody thought of or that can--they can think--that might cause anybody involved to think that you might not be able to sit as a fair, impartial juror in this case. There were no responses.

At this point, peremptory challenges began. After several potential jurors were excused, defense counsel asked: Okay. Weve talked a lot about the law as it pertains to drug offenses and--drug offenses in this case--that its going to be--that youre going to be asked to weigh in on. [] I just want to kind of ask you as a group about drugs and in general if--is there any of you who have had close friends or family who have had their lives damaged by drug problems? [] Its rare we dont have a few. A number of jurors responded affirmatively, but not juror No. 10.

The People argue juror No. 10 had a number of opportunities to reveal her prior drug use but failed to do so. They cite the questions about drug use in particular. However, those questions were limited to situations where drug use caused someones life to be damaged. There is nothing in the record to suggest juror No. 10 had any such experience with drugs. Nor was there any direct question to any of the jurors about their personal drug use. Nevertheless, we agree the prosecutors question about whether there was anything in anyones background that might cause any of the parties to think that the potential juror might not be able to sit as a fair, impartial juror should have prompted a response from juror No. 10. Up to that point, there had been discussions with other jurors about experiences with drug users and whether that might influence the jurors ability to judge the case.

It is certainly conceivable that juror No. 10 did not believe her prior experience with the drug trade would affect her ability to be fair. According to her post-trial declaration, this experience had been a long time in the past. However, this was not a call for juror No. 10 to make. The question was whether there was anything in her past that might cause others to question whether she could be fair and impartial. It was incumbent on her to reveal this information and let the parties make the call through their peremptory challenges.

A sitting juror may be removed for good cause. (Pen. Code, 1089; People v. Price (1991) 1 Cal.4th 324, 400.) Failure to reveal material information that may tend to show bias is good cause for removal, as it deprives the parties of a fair opportunity to exercise peremptory challenges. (See Price, at p. 400.) [H]ints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious. (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 554 [78 L.Ed.2d 663, 670] (plur. opn. of Rehnquist, J.).) A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. (In re Hitchings (1993) 6 Cal.4th 97, 111.)

An appellate court reviews a trial courts finding of good cause under the deferential abuse-of-discretion standard. (People v. Price, supra, 1 Cal.4th at p. 400.) We certainly understand the trial courts and counsels disinclination to ask potential jurors directly during voir dire about the potential jurors own experiences with drugs. Defendants argument that the questions that were asked were not sufficiently specific to require juror No. 10 to reveal her own drug history is anything but frivolous. But we cannot find an abuse of discretion in the trial courts conclusion that juror No. 10s failure to reveal her prior drug experience was good cause for her removal from the jury. The information was clearly relevant to the parties exercise of their peremptory challenges, and juror No. 10 should not have left it to herself to make that call. She was, therefore, properly discharged.

VI

Abstract of Judgment

Defendant contends the abstract of judgment should be corrected to reflect the fines, fees, penalties and assessments actually imposed by the court. At sentencing, the court ordered a laboratory fee of $50 under Health and Safety Code section 11372.5, subdivision (a), plus penalties and assessments of $100, and a drug program fee of $150 under Health and Safety Code section 11372.7, plus penalties and assessments of $300. However, the abstract does not reflect the penalties and assessments. The abstract lists a fine of $100 under Penal Code section 1202.5. However, the trial court did not assess such fine.

The People concede the foregoing. They also contend the reporters transcript reflects that the court ordered a booking fee of $288.43, but the booking fee is incorrectly listed on the abstract as $208.43. They request that the abstract be corrected to reflect what the court ordered.

Defendant raises no objection.

However, while the trial courts oral pronouncement is controlling, we believe there is some question here about what the court actually said at sentencing. As a general rule, when . . . the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerks minutes should prevail as against contrary statements in the reporters transcript, must depend upon the circumstances of each particular case. (People v.Smith (1983) 33 Cal.3d 596, 599.)

In this instance, we note the probation report recommended a booking fee of $208.43. In light of this recommendation, which is consistent with the fee identified in the abstract of judgment, it is more likely than not that the trial court actually imposed a booking fee in accordance with the recommendation of the probation department, i.e., $208.43. It is the court reporter who got it wrong.

We shall order the trial court to correct the abstract of judgment to reflect the penalties and assessments imposed and to eliminate the Penal Code section 1202.5 fine. However, we shall order no change with respect to the booking fee. (See People v. Mitchell (2001) 26 Cal.4th 181, 188.)

Disposition

The judgment is affirmed. The trial court is directed to correct the abstract of judgment as indicated above and to forward a copy to the Department of Corrections and Rehabilitation.

HULL, J.

We concur:

BLEASE , Acting P.J.

SIMS , J.

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