P. v. Moody

Filed 12/11/09 P. v. Moody CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.

Alan Keith Mason, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

On December 3, 2006, around midnight, Ceres Police Officer Christopher Perry was on patrol when he spotted a truck driven by appellant, Thomas Ellis Moody. Perry made an enforcement stop because the registration tags on the back license plate of the truck appeared to have been peeled off and put back on. As he approached Moodys truck, Perry saw Moody make several movements towards the rear of the seat. Perry drew his gun and approached the drivers door. However, when Moody put his hands on the steering wheel, Perry holstered his gun. After determining Moody did not have a valid drivers license, Perry had him step out of the truck so Perry could have the truck towed. During an inventory search of the car, Perry found a hypodermic needle under a washcloth on the floorboard and a baggie containing .56 grams of methamphetamine stuffed in the space where the backrest meets the seat portion of the drivers seat.

On March 5, 2008, the district attorney filed a first amended information charging Moody with possession of methamphetamine (count 1/Health & Saf. Code, 11377, subd. (a)), possession of a hypodermic needle (count 2/Bus. & Prof. Code, 4140), and driving while his driving privilege was suspended (count 3/Veh. Code, 14601.1, subd. (a)). The information also alleged three prior prison term enhancements (Pen. Code, 667.5, subd. (b))^[1]and that Moody had a prior conviction within the meaning of the three strikes law ( 667, subds.(b)-(i)).

On March 11, 2008, the jury found Moody guilty on counts 1 and 2. In a separate proceeding on March 12, 2008, Moody admitted the three strikes law allegation and three prior prison term enhancements.

On March 6, 2009, the court granted Moodys Romero motion and denied his motions for a new trial and to reduce his possession offense to a misdemeanor. The court then sentenced Moody to an aggregate five-year term, the middle term of two years and three one-year prior prison term enhancements. After the parties stipulated Moody was addicted to drugs, the court suspended criminal proceedings and committed Moody to the California Rehabilitation Center. !(RT: 257.)!

Moodys appointed appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed on August 21, 2009, Moody raised the following issues: 1) his defense counsel failed to subpoena the owner of the truck Moody was driving when he was arrested even though the owner had been arrested for possession and manufacturing of methamphetamine; 2) the jury foreman was the chief medical examiner at the hospital where Moodys leg was amputated on August 20, 2005, and was aware that Moody was under the influence of methamphetamine at the time; 3) Moody improperly admitted the three prior prison term enhancements because there was insufficient proof that he failed to remain free of prison custody for five years; and 4) even though appellate counsel stated in a letter to this court that he had found a viable issue with five subparts, afterwards he informed Moody there were no winning issues, only ones that could possibly have resulted in the modification of sentence and a new trial. We will conclude that there is no merit to any of these issues or that they are not cognizable on appeal.

To demonstrate that a defendant has received constitutionally inadequate representation by counsel, he or she must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.] (In re Alvernaz (1992) 2 Cal.4th 924, 936-937.)

Here, the syringe was found on the floorboard of the truck Moody was driving covered only by a washcloth. Further, the methamphetamine was found in a plastic bag located where the backrest meets the seat portion of the drivers seat and Officer Perry saw Moody make several furtive movements towards that area. These circumstances provide strong circumstantial evidence that Moody was aware of the contraband and possessed it. Moreover, [p]ossession may be physical or constructive, and more than one person may possess the same contraband. [Citation.] (People v. Williams (2009) 170 Cal.App.4th 587, 625.) Thus, it is unlikely the jury would not have convicted Moody of possessing methamphetamine and possessing the syringe even if the trucks owner had testified the contraband belonged to him because it could reasonably have concluded that Moody and the owner jointly possessed the contraband. Further, even if defense counsel had subpoenaed the trucks owner to testify, nothing in the record suggests he would have exposed himself to criminal liability by testifying that the syringe and methamphetamine found in the truck belonged to him. Accordingly, since the record does not show that Moody was prejudiced by the failure to call the owner of the truck as a witness, we reject Moodys implicit claim that he was denied the effective assistance of counsel by his defense counsels failure to do so.

Nor is there any merit to Moodys contention that Juror No. 11, the jury foreman, recognized Moody from having treated him for drug use, and that this somehow prejudiced Moody during jury deliberations. Prior to the start of trial, the court questioned Juror No. 11 regarding whether he ever treated Moody for drugs and his responses made it clear that he had not and that, even if he had, it would not affect his impartiality in this matter. !(RT: 60-62.)!

Further, subdivision (b) of section 667.5 provides [a prior prison term] enhancement cannot be imposed for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.... Subdivision (d) of section 667.5 provides: For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole, whichever first occurs. (See People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85, [five-year washout period begins when defendant is first paroled, not when he is later discharged from parole].) Consequently, a defendant will gain the benefit of the washout period if for any five-year period following discharge from prison custody or release on parole, he remains free of both prison custody and the commission of an offense resulting in a felony conviction. [Citations.] (People v Fielder (2004) 114 Cal.App.4th 1221, 1232-1233.)

The three convictions underlying Moodys three prior prison term enhancements occurred in December 1989, February 1992, and December 1995. However, it is impossible to tell from the record whether there was a five-year washout period between when Moody was released from prison on his 1995 conviction and his commission of a new felony offense, including the instant case. It is the affirmative duty of any appellant to show error by an adequate record. (People v. Hertz (1980) 103 Cal.App.3d 770, 780.) Since Moody has not met his burden on this issue we reject his challenge to his admission of the three prior prison term enhancements.

Finally, we reject Moodys contention that his appellate counsel did not raise issues counsel found meritorious because it relies on evidence outside the record. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12 [[t]he scope of an appeal is, of course, limited to the record of the proceedings below].)

Following independent review of the record, we find that no reasonably arguable factual or legal issues exist.

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Levy, J., and Kane, J.

^[1]All further statutory references are to the Penal Code.