P. v. Schmidt

Filed 9/10/07 P. v. Schmidt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Gloria Connor Trask, Judge. Affirmed with directions.

Brent F. Romney, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

Tonya Jean Schmidt appeals her conviction for possession of methamphetamine for sale. She contends that errors in the admission of evidence, an instance of prosecutorial misconduct and ineffective assistance of counsel cumulatively, if not individually, require reversal of her conviction. We affirm the judgment.

PROCEDURAL HISTORY

Defendant Tonya Jean Schmidt was charged with one count of possession of methamphetamine for sale. (Health & Saf. Code, 11378.) The information alleged that Schmidt had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). A jury found her guilty of the charged offense, and the court found two of the prior prison term allegations true. The court sentenced Schmidt to the middle term of two years, and imposed a one-year consecutive term for each of the prior prison term enhancements, for a total term of four years. Schmidt filed a timely notice of appeal.

FACTS

At 7:50 p.m. on March 16, 2006, Riverside Police Officers Corbett and Ellis were on patrol on Megginson Lane. The last house on the street, 3908 Megginson, was known as a drug house frequented by sellers, users, and parolees at large. Officer Corbett saw a red Nissan 300 ZX parked in the driveway. The engine was running and the lights were on. A man named Roger Gloria was next to the car, walking toward the rear of it. Corbett could see Schmidt just inside the open front door of the house. He recognized her as Tonya Rubio. He had seen her approximately 12 times before, including about two days earlier at the same location. Schmidt was looking outside at the officers and pacing back and forth. She then walked out to the car and spoke to the officers. She said the car wasnt hers but that she borrowed it and drove it frequently. Gloria identified himself to the officers and said he was on parole. He said that he and Schmidt were going to return the car to its owner. He said that the terms of his parole permitted the officers to search the car.

Corbett searched the car and found a backpack which contained, among other things, an envelope and letter addressed to Tonya Rubio, postmarked March 9, 2006. There was also a wallet which contained another letter, which began, My Dearest Tonya. Corbett also found a cigar-type box inside the backpack. Inside the box were 22 baggies, one baggie which contained white crystalline material, a scale dusted with similar white particles, and a small butane torch. All of these items were consistent with methamphetamine possessed for sale, possibly by a user who sold methamphetamine to support his or her habit. A field test showed the presence of methamphetamine, and a subsequent lab test showed that the baggie contained 2.96 grams of methamphetamine. That quantity would supply an average user for about a week and was worth between $100 and $200.

Gloria denied that the backpack was his. Schmidt told Corbett that the backpack belonged to a woman named Stephanie but did not provide a last name or any information which would have permitted the police to locate Stephanie. Schmidt was arrested for possession of methamphetamine for sale based on the officers conclusion that the backpack and its contents belonged to her.

Schmidt had previously been arrested for possession of methamphetamine when methamphetamine and smoking pipes were found in a house trailer in her presence. She denied knowing that the items were there, but some items were in plain view within 10 or 15 feet of where she was, and statements she made after waiving her rights led the officer to believe that she possessed the items.

LEGAL ANALYSIS

ADMISSIBILITY OF EVIDENCE OF DEFENDANTS PRIOR ARREST FOR POSSESSION OF METHAMPHETAMINE

The prosecution sought to introduce evidence of Schmidts prior arrest for possession of methamphetamine to prove that Schmidt had knowledge of methamphetamine and knew that it was a controlled substance on the date of the charged offense. The defense offered to stipulate to her knowledge. The prosecutor declined the offer, and the court refused to compel the stipulation. The court also rejected Schmidts argument that the evidence was propensity evidence made inadmissible by Evidence Code section 1101, subdivision (a).^[1]

Although the caption on Schmidts argument couches the issue in terms of the courts refusal to compel the prosecution to stipulate to her knowledge of methamphetamine, the actual gist of the argument is that the court erred in allowing the evidence of her prior arrest to come in without weighing the prejudice effect of the evidence against its probative value as required under Evidence Code sections 352 and 1101, subdivision (b). She does not engage in any discussion of the law which pertains to a trial courts authority to require the prosecution to stipulate to a fact. Even in her reply brief, in response to the Attorney Generals argument that a trial court cannot compel a stipulation, Schmidt merely acknowledges that a trial court lacks authority to compel the prosecution to enter into a stipulation under some circumstances without attempting to explain why the circumstances of this case did permit the court to compel the stipulation. An appellant is required to cite pertinent authorities and present meaningful analysis of an issue; if he or she fails to do so, the issue may be deemed forfeited. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) We will assume, therefore, that Schmidts intention was to address solely the admissibility of the evidence under Evidence Code section 1101, subdivision (b), and her assertion that the court failed to engage in the required weighing process before ruling it admissible. We find no error.

Evidence Code section 1101, subdivision (b) (hereafter section 1101(b)) provides that evidence that a person committed a crime, civil wrong or other act is admissible when relevant to prove some fact other than the persons disposition to commit such an act. Such evidence may be admitted to prove the persons knowledge of relevant facts, among other things. ( 1101(b).)^[2] To be admissible, the evidence must be relevant to some material fact which is in issue, must have a tendency to prove that fact, and must not contravene other policies limiting admission, such as Evidence Code section 352.^[3] (People v. Thompson (1988) 45 Cal.3d 86, 109.) We review a trial courts ruling under Evidence Code sections 1101(b) and 352 for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

To obtain a conviction for possession of a controlled substance for sale, the prosecution must prove that the defendant had knowledge of both the presence of the contraband and its illegal character. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) Prior incidents of possession of an illegal drug are relevant to prove the knowledge element. (People v. Pijal (1973) 33 Cal.App.3d 682, 691.) As described above, Schmidt was arrested in a house trailer where methamphetamine was present in plain view, under undisclosed circumstances which persuaded the arresting officer that she, as well as the other person present, possessed the drug. Schmidts contention is that the evidence that she was previously arrested for possession of methamphetamine, as opposed to being convicted for possessing it, has little relevance to her knowledge of the drug, particularly under the circumstances described by the arresting officer. She contends that the trial court failed to weigh the limited probative value of this evidence against the prejudicial effect inherent in evidence of the commission of an offense so similar to the charged offense, and argued that if the court had engaged in the weighing process, it would have been compelled to conclude that the prejudice outweighed the probative value of the evidence.

The trial court need not explicitly engage in the weighing process on the record, as long as the record shows that the court was aware of its obligation to engage in the analysis required by Evidence Code section 352 and that it actually did weigh the potential for prejudice against the probative value of the evidence. (People v. Hayes (1990) 52 Cal.3d 577, 617.) Here, although the parties argued to the court that section 352 did or did not preclude the introduction of the evidence, respectively, the courts ruling appears to indicate that the only criterion the court applied was that the incident resulted in a felony, as opposed to a misdemeanor, conviction. There is no indication that the court actually considered the probative value of the proffered evidence, which involved the circumstances surrounding Schmidts prior arrest rather than the mere fact of the prior conviction.

Even if the court did not exercise its discretion as required, however, the error was harmless. As we have noted above, the evidence was relevant to prove Schmidts knowledge of methamphetamine and its illegal nature, and was thus admissible pursuant to section 1101(b). (People v. Pijal, supra, 33 Cal.App.3d at p. 691.) Any prejudicial effect was mitigated by the courts instructions that the jury could consider the evidence only for the limited purpose of deciding whether Schmidt knew of methamphetamines nature or character as a controlled substance, and for no other purpose. The instructions also stated that her prior possession of methamphetamine was not sufficient by itself to prove that she possessed it for sale on this occasion. Because the standard instructions mitigated any possible prejudice, there is no reasonable probability that the trial court would have excluded the evidence if it had engaged in the required weighing process.

Moreover, defendant has not met her burden of showing that any prejudice resulted from the admission of the evidence. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) In the absence of evidence to the contrary, we presume that jurors abide by limiting instructions (People v. Waidla (2000) 22 Cal.4th 690, 725), and there is no reason to believe that the jurors in this case did not follow the courts instructions. Accordingly, there is no basis for Schmidts contention that the jury was allowed to use the prior arrest as evidence of her propensity to abuse methamphetamine.

PROSECUTORIAL MISCONDUCT

Next, Schmidt contends that the prosecutor committed prejudicial misconduct by eliciting testimony from Officer Ellis that Schmidt was subject to search terms, i.e., that she was on parole.

The issue arose as follows. Schmidt moved in limine for an order prohibiting any reference to the fact that she was on parole on the date of the charged offense. The court granted the motion and instructed the prosecutor to talk to her witnesses and direct them to avoid mentioning Schmidts parole status. On direct examination, the prosecutor asked Officer Ellis if he had a reason to search the car. Ellis replied that he did. The prosecutor then asked, And what was that reason? Ellis replied, Due to our previous experience with the house, the trafficking in or outside of the house as well as Mr. Gloria, I believe, was on parole, had search terms, and weve had previous contacts with Miss Rubio, she had search terms as well. The defense did not object or seek any remedy.

A prosecutor engages in misconduct by intentionally eliciting inadmissible testimony. (People v. Valdez (2004) 32 Cal.4th 73, 125.) The record affords no basis for concluding that the prosecutor intentionally violated the trial courts order. Officer Corbett had previously testified that Roger Gloria admitted that he was on parole and subject to a search condition, and the question posed to Officer Ellis did not directly or indirectly call for a response concerning Schmidts parole status or any search condition which applied to her. After receiving Elliss answer, the prosecutor did not inquire further into Schmidts parole status. On this record, we cannot infer that the prosecutor purposely elicited inadmissible testimony. (People v. Pinholster (1992) 1 Cal.4th 865, 964-965; People v. Bonin (1988) 46 Cal.3d 659, 689-690, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Moreover, even if the prosecutor did deliberately elicit evidence in contravention of the courts order, the incident does not rise to the level of misconduct which violates a defendants rights under either the state or federal Constitution. A prosecutors conduct violates the federal Constitution only if it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] (People v. Samayoa (1997) 15 Cal.4th 795, 841.) It violates the state Constitution only if it involves the use of deceptive or reprehensible methods to persuade the court or jury. (Ibid.) The prosecutor did not exploit the improper evidence in her closing argument. Instead, she discussed all of the other evidence which tended to show that Schmidt was in possession of the methamphetamine found in the backpack and that she had knowledge of its illegal character. A single brief reference to search conditions implying that Schmidt was on parole, even if deliberately elicited in violation of the courts order, does not amount to a pattern of egregious misconduct, nor to deceptive or reprehensible methods of persuasion.

INEFFECTIVE ASSISTANCE OF COUNSEL

An attorney provides deficient representation, in violation of the defendants state and federal constitutional right to the effective assistance of trial counsel, if the attorneys performance fell below an objective standard of professional competence. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) To obtain reversal, the defendant must show both that counsels performance was deficient and that the deficiency was prejudicial. In this context, prejudice means that there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, at p. 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694; see also People v. Ledesma, supra, at pp. 217-218.)

Schmidt contends that her attorney provided deficient representation because he failed to object to testimony by both officers that Schmidt was known to frequent houses where drug trafficking occurs, and that the house on Megginson Lane was such a house. She contends that her presence at other drug houses was not relevant to any issue in the case, that it was a specific instance of conduct introduced to prove a trait of her character for associating with drug traffickers, and that it was offered to prove her conduct on a specified occasion, i.e., that she was trafficking in drugs on March 16, 2006. She contends that the evidence was therefore inadmissible pursuant to Evidence Code section 1101, subdivision (a). Schmidt also contends that counsels performance was deficient because he failed to object to testimony about Roger Glorias parole status and the search condition to which he was subject. She contends that Glorias parole status as the basis for justifying the search of the car was not relevant to the issues at trial, i.e., whether Schmidt possessed the methamphetamine for sale.

Schmidt does not engage in any analysis or cite any authority to demonstrate that the evidence of her association with drug traffickers was inadmissible pursuant to Evidence Code section 1101, subdivision (a), and we decline to address that issue. (McComber v. Wells, supra, 72 Cal.App.4th at p. 522.) We agree, however, that it is at least arguable that the evidence that Schmidt was known to frequent drug houses and had done so on other occasions is either not relevant to the issues at trial or inadmissible pursuant to Evidence Code section 352.^[4] Similarly, the circumstances justifying the search of the car are not relevant to the issue at trial, i.e., whether Schmidt possessed the methamphetamine and if so, whether she possessed it for sale. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [reason for patdown search irrelevant at trial on charge of possession of cocaine].) We need not determine whether counsels performance was deficient as a result of his failure to object, however, because Schmidt has not met her burden of demonstrating prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079; Strickland v. Washington, supra, 466 U.S. at p. 697 [court may dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice without determining whether counsels performance was deficient].)

To prevail on a claim of ineffective assistance of counsel, it is not enough for the defendant to show that the errors had some conceivable effect on the trials outcome; rather, the defendant must demonstrate a reasonable probability that absent the errors the result would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694; see People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Here, the evidence that Schmidt was known to frequent drug houses and that she was associating with a person inferentially on parole for drug offenses was peripheral to the prosecutions case. The evidence showed that the backpack containing the methamphetamine also contained two letters which were addressed to Schmidt. The backpack was in a car Schmidt admitted to having borrowed and driven frequently. She appeared to be at least jointly in control of the car that evening with Roger Gloria, who said that he and Schmidt were going to return the car to its owner. She also appeared to be nervous about the police interest in the car she paced back and forth inside the house after seeing the officers talking to Gloria at the car. This is compelling evidence that she possessed the backpack and its contents, and that she knew it contained contraband. There was expert testimony that the amount of methamphetamine was more than a person would normally possess for his or her own use. Possession of that amount, along with a scale and 22 plastic baggies, was consistent with possession for sale. As we have discussed, the evidence that Schmidt had previously been arrested for possession of methamphetamine was properly admitted to prove her knowledge of the drug and its illegal character. Given that evidence, there is no reasonable probability that the jury would have found her not guilty, or guilty of only simple possession, if her attorney had successfully objected to the evidence of Glorias parole status and search condition, and to the evidence that Schmidt had been found at drug houses on other occasions.

IMPROPER HYPOTHETICAL

At trial, Schmidt objected to a hypothetical question the prosecutor posed to her narcotics expert, on grounds that the hypothetical question assumed facts not in evidence or was incomplete. On appeal, she contends that the hypothetical question assumed inadmissible facts, i.e., that she was found in a house known for narcotic possession, sales and use; that she was found at two other homes that are known for narcotic possession, sales and use; and that she was found in possession of methamphetamine in December 2004.

[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (People v. Rogers (1978) 21 Cal.3d 542, 548, italics added; see Evid. Code, 353.) Schmidt did not object to the hypothetical question on the ground she now urges, and she has therefore not preserved the issue for appeal. (People v. Rogers, supra, at p. 548.) In any event, as we have discussed elsewhere, Schmidt has failed to demonstrate that the evidence she objects to as the basis of the hypothetical question was inadmissible. She makes no further showing of its inadmissibility in this context. Accordingly, even if the issue had been preserved, we would find it to be without merit.

CUMULATIVE ERROR

Finally, Schmidt contends that the four errors she alleges were cumulatively prejudicial. She asks this court to assess the combined effect of all the errors. Schmidt herself has made no effort to assess the combined effect of the alleged errors, however, and it is not our function to do so for her. (Paterno v. State of California, supra, 74 Cal.App.4th at pp. 106, 108.) In any event, because we have found only one error the trial courts failure to weigh evidence pursuant to Evidence Code section 352 there is no cumulative effect to assess.

CLERICAL ERROR

There is a discrepancy between the courts oral findings on the prior prison term allegations and its oral pronouncement of sentence, and the court minutes and abstract of judgment. The minutes and the abstract state that the court found all three prison prior allegations true, and that the court imposed sentence on two of the enhancements and stayed the third.^[5] In fact, the court found true only the second and third prison priors alleged in the information. (It appears that defendant served two of the prior prison terms concurrently, and that one therefore did not qualify as an enhancement within the meaning of Penal Code section 667.5, subdivision (b), which permits an enhancement only for each prior separate term served by the defendant.) At sentencing, the court imposed the middle term of two years, and one year for each of the prison priors, for a total of four years. It did not purport to stay a third prison prior enhancement.

Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entering the judgment in the minutes is a clerical function, as is the preparation of the abstract of judgment. Therefore, when the oral pronouncement of judgment is in conflict with the minutes and/or the abstract of judgment, the oral pronouncement controls. (Ibid.) An appellate court has the authority to order correction of clerical errors on request of either party or on its own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.) We will therefore order the clerk of the superior court to correct the minutes and the abstract of judgment to reflect correctly the courts findings on the prison priors and its imposition of sentence. (Id. at p. 188.)

DISPOSITION

The judgment is affirmed. The clerk of the superior court is directed to correct the minutes and abstract of judgment to reflect correctly the courts findings on the prior prison term allegations and the sentence imposed by the court.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1]Evidence Code section 1101, subdivision (a) provides, Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

^[2]In full, section 1101(b) provides, (b) 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 (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.

^[3]Evidence Code section 352 provides, The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

^[4]Schmidt does not contend that Officer Corbetts testimony that he and his partner were targeting the Megginson Lane house on the date of her arrest because it was a known drug house was objectionable.

^[5]The abstract of judgment was not included in the original record on appeal. The abstract of judgment is a mandatory component of the record on appeal. (Cal. Rules of Court, rule 8.320(b)(8).) Accordingly, on our own motion, we order the record corrected to include it. (Cal. Rules of Court, rule 8.155(c)(2).)