P. v. Saldivar

Filed 12/23/09 P. v. Saldivar CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Latin, Judge. Affirmed.

Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, E. Carlos Dominguez, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant and appellant Cesar Saldivar guilty of possessing ecstacy for sale. On appeal, he claims he received ineffective assistance of counsel based on his trial counsels failure to object to evidence showing that he possessed a small amount of marijuana when he was arrested and that his cell phone had a picture of marijuana in its memory. According to defendant, the marijuana evidence was irrelevant to the charged crime of possessing ecstacy for sale and its introduction into evidence prejudiced the jury against him.

We hold that the record is insufficient to enable us to determine the ineffective assistance of counsel claim, which claim is ordinarily and more appropriately raised in a petition for writ of mandate. We therefore affirm the judgment of conviction.

FACTUAL BACKGROUND

On May 31, 2008, at sometime between 4:00 and 5:00 p.m., Los Angeles Police Officer Anthony Escobar was patrolling with his partner, Officer William Martin, near the intersection of Barbara Ann Street and Ethel Avenue. The officers were in uniform patrolling in a marked black and white patrol car. Their attention was drawn to a white Ford Expedition parked on the north side of Barbara Ann Street. Officer Escobar observed four or five male Hispanics outside the Expedition. One of the men made eye contact with Officer Escobar and then immediately walked to the front of the Expedition, and appeared to be either retrieving or placing something underneath the front of the vehicle. At that point, the officers patrol car was 20 to 30 yards away from the Expedition.

As the officers approached the Expedition, Officer Escobar saw two people sitting in the second row of seats. One person was seated just to the right of center near the right rear passenger door. The male outside the vehicle who had bent down to place or retrieve something yelled or said something to the occupants of the [Exhibition] . . . . Officer Escobar observed the man seated in the center position look back and make eye contact with him. That man then bent down to where Officer Escobar temporarily lost site of the mans head. After a few seconds, the man returned to the upright position. The other man immediately went to the right then exited the vehicle.

Two to three seconds later the officers exited their vehicle. Officer Escobar focused on the person in the Expedition, while Officer Martin observed the people outside it. Officer Escobar ordered the man who had just exited the Expedition to show his hands. The man sitting in the center position then exited the vehicle. Officer Escobar identified that man as defendant

Officer Escobar smelled burnt marijuana and looked inside the vehicle. Directly under the seat where defendant had been sitting, Officer Escobar found two items. The first item was a clear, unmarked pill container that was closed, packaged very neatly with all the pills inside, the cotton on top, and the child proof seal, sealed. The pills inside the bottle had a stamp of a dolphin on them. The second item recovered by Officer Escobar was clear plastic baggie tied at an end with a piece of cotton and the same type of pills inside.

Officer Escobar searched defendant and found a cell phone, currency, and marijuana. The officer found $194 in defendants left front pocket and $48 in his right front pocket. Defendants left pocket contained one $100 bill, two $20 bills, nine $5 bills, and nine $1 bills. His right front pocket contained one $20 bill, one $10 bill, three $5 bills, and three $1 bills. Officer Escobar inspected defendants cell phone and found pictures of ecstacy pills, $100 bills, and marijuana.

Los Angeles Police Department Criminalist Edgard Eugenio tested the pills that Officer Escboar recovered from under the seat of the Expedition. The pill container contained 100 yellow pills with a dolphin imprinted on them. The plastic baggie contained 33 of the same type of pills. The pills in the baggie and the pill container contained M.D.M.A.^[1](a controlled substance) and methamphatine.

Los Angeles Police Detective Kathleen Burns testified as a narcotics expert, especially as to whether defendant possessed the narcotics for sale. According to Detective Burns, based on the number of pills recovered and the amount and various denominations of the currency recovered from each of defendants front pockets, defendant possessed the narcotics for sale.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney charged defendant in an information with possession of a controlled substance for sale in violation of Health and Safety Code section 11378a felony. Defendant pleaded not guilty. Following trial, the jury convicted defendant as charged. The trial court suspended imposition of sentence, placed defendant on three years formal probation, and ordered defendant to serve 180 days in the county jail.

DISCUSSION

Defendant concedes that his trial counsel failed to object to the evidence that defendant was in possession of marijuana and had a picture of marijuana on his cell phone. But he contends that the marijuana evidence was irrelevant and prejudicial such that his trial counsels failure to object to that evidence constituted ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim, a defendant must show that the conduct of his trial counsel of which he complains fell below the standard of reasonableness and that he was prejudiced by that conduct. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

On appeal, we cannot determine a claim of ineffective assistance of counsel unless the reasons for his trial counsels actions or inactions are reflected in the record. If the record sheds no light on why trial counsel acted or failed to act as challenged, we cannot determine an ineffective assistance claim, unless there is no plausible or satisfactory reason for his failure to act. (People v. Cunningham (2001) 25 Cal.4th 926, 1003; People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)

The record does not reflect why defendants trial counsel failed to object to the marijuana evidence, although there is a suggestion in the record that the failure may have been for legitimate tactical reasons. During argument, defendants counsel argued that it was implausible to contend that defendant had the presence of mind to hide the ecstacy under the seat, but intentionally did not take the same action with respect to the marijuana. Defendants counsel argued as follows: But who gets charged? The guy last in the car gets charged. And he smells the fresh marijuana. [Defendant], yes, hes got the marijuana, he doesnt have the pipe which tells you the guy with the pipe was also in the car, but they had just been smoking it, and the logic that is supposed to be sold to you here is this: that [defendant], because hes some so-called genius, I think, is thinking to himself, well, lets see. I got marijuana here, I got this big bag of ecstasy, but Im going to keep my marijuana; and the D.A. I guess will counter, well, he did that thinking, well, a little bit of marijuanaI wont Ill only get in a little bit of trouble for that because theres a little bit of marijuana. But for the ecstasy, I can get in a lot of trouble. So Im going to get rid of that. Thats a lot of thinking to be going down like that, that youre conscientisouly going to say, okay, lets see. Im going to get rid of the pill bottle, Im going to wipe the prints, Im going to get rid of the bag, but you know what? Im going to make a conscious decision to hold on to my marijuana because maybe Ill just get a little slap on the wrist, and Ill hold onto my money, for whatever reason. And thatsthats a lot of thinking going on in a split second. That if youre going to get rid of drugs, youre going to hold on to your other drugs because its only marijuana. Thats a lot of thinking in a short period of time. And its almost genius thinking. And I suppose thats going to be the D.A.s rebuttal for that. I mean, it just doesnt make sense.

That trial counsel chose to argue at least some of the marijuana evidence suggests that his failure to object to that evidence was tactical and motivated by a legitimate purpose. Absent some further explanation for the reasons behind trial counsels failure to object to the marijuana evidence, we cannot determine the ineffective assistance of counsel claim on appeal. The issue is more appropriately litigated in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)

DISPOSITION

The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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^[1] M.D.M.A. is an acronym for methylenedioxmethamphetamine, commonly known as ecstacy.