Filed 4/24/18 P. v. King CA3
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`NOT TO BE PUBLISHED
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`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 This opinion has not been certified for publication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.
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`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`THIRD APPELLATE DISTRICT
`(Sacramento)
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`Plaintiff and Respondent,
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`v.
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`C083692
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`(Super. Ct. No. 16FE011907)
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`THE PEOPLE,
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`DALE KING,
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`Defendant and Appellant.
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`A jury convicted defendant Dale King of possession of methamphetamine for sale.
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`In bifurcated proceedings, the trial court found true allegations of four prior prison terms
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`and a prior drug conviction. The trial court sentenced defendant to an aggregate prison
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`term of 11 years.
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`Defendant now contends (1) defense counsel rendered ineffective assistance in
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`failing to object to an expert’s interpretation of his jail call, and (2) the trial court
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`erroneously instructed the jury on the procedure for considering the lesser included
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`offense of simple possession. We find no merit in the contentions.
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`In supplemental briefing, defendant asserts (3) that the three-year enhancement
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`imposed for his prior drug conviction must be stricken pursuant to a recent amendment
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`to Health and Safety Code section 11370.2. The People agree, and we do too. We will
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`modify the judgment to strike the three-year enhancement imposed for defendant’s prior
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`drug conviction, and affirm the judgment as modified.
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`BACKGROUND
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`Sheriff’s deputies on patrol in Rancho Cordova contacted defendant and a female
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`companion. A search of defendant’s person revealed a pouch with four pieces of
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`methamphetamine weighing 28.0 grams, 6.41 grams, 6.46 grams, and 6.52 grams. One
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`ounce equals 28.5 grams with a street value of $300 to $350. An “eight ball” equals 3.5
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`grams with a street value of $80 to $100. Defendant possessed approximately $780
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`worth of methamphetamine. He did not possess any paraphernalia for use or for sales.
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`The deputies placed defendant in a patrol car equipped with a recording device.
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`While the two deputies and defendant’s companion stood next to the patrol car, defendant
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`said, “You gotta take this case baby. Baby, you gotta take this case baby.”
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`Defendant’s phone calls from jail were also recorded. Two days after his arrest,
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`defendant called an individual named John and said “she gotta take it” several times.
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`Defendant explained that he had gone to the park “trying to handle [his] business,” that
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`an individual named Danny had called saying he “need one,” that defendant went through
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`a gate and “snatched it,” and that defendant was on his way to see Danny to “do what
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`[he] needed to do.” John responded, “[t]hat’s business man.” Defendant told John to call
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`Danny and explain what had happened, that Danny should call defendant’s “people” and
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`explain it and give them “what he had,” and that Danny should “continu[e] doing what it
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`is that they was doing. Okay?” John responded, “Yeah, I got you.”
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`Detective Christina Montano, the prosecutor’s expert on possession of
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`methamphetamine for sale, explained that drug dealers use code in talking about drugs
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`and drug deals. She had listened to defendant’s call with John and interpreted the
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`conversation as follows: Defendant wanted a woman to be charged with the offense
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`rather than him, and he had gone to the park to sell narcotics which he considered to be
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`his business. After he was arrested, defendant expected his contacts would continue the
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`business.
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`Detective Montano said that in determining whether someone possessed
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`methamphetamine for sale, she considers the amount of methamphetamine possessed,
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`the packaging, the presence or absence of sale paraphernalia, and jail calls. Based
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`on a hypothetical with facts similar to the present case, Detective Montano opined
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`that defendant possessed methamphetamine for sale. Noting that a typical dose equals
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`0.1 grams, the detective said defendant had 470 doses. The fact that defendant did not
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`carry a means to ingest it also suggested it was for sale rather than personal use.
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`Although a heavy user can smoke 3.5 grams a day, Detective Montano said that was not
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`very common based on the cost and risk of overdose. Defendant also had three packages
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`which each contained almost two “eight balls” and another package with 28 grams,
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`almost an ounce, which suggested the packages were ready for distribution to particular
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`clients because he did not have extra baggies or a scale. Each package had been shorted
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`about 0.5 grams.
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`The jury convicted defendant of possession of methamphetamine for sale. (Health
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`& Saf. Code, § 11378.) In bifurcated proceedings, the trial court sustained four prior
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`prison terms (Pen. Code, § 667.5, subd. (b)) and a prior drug conviction (Health & Saf.
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`Code, § 11370.2, subd. (c)). The trial court sentenced defendant to an aggregate prison
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`term of 11 years.
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`Additional facts are included in the discussion as relevant to the contentions on
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`appeal.
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`DISCUSSION
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`I
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`Defendant contends defense counsel rendered ineffective assistance in failing to
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`object to Detective Montano’s interpretation of his jail call.
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`A
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`To establish ineffective assistance of counsel, a defendant must demonstrate that
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`counsel’s performance was deficient -- that it fell below an objective standard of
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`reasonableness under prevailing professional norms -- and that defendant suffered
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`prejudice as a result, establishing a reasonable probability that, but for counsel’s deficient
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`performance, the outcome of the proceeding would have been different. (Strickland v.
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`Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674]; People v. Ledesma
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`(1987) 43 Cal.3d 171, 216-217.)
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`“When examining an ineffective assistance claim, a reviewing court defers to
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`counsel’s reasonable tactical decisions, and there is a presumption counsel acted within
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`the wide range of reasonable professional assistance. It is particularly difficult to prevail
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`on an appellate claim of ineffective assistance. On direct appeal, a conviction will be
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`reversed for ineffective assistance only if (1) the record affirmatively discloses counsel
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`had no rational tactical purpose for the challenged act or omission, (2) counsel was asked
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`for a reason and failed to provide one, or (3) there simply could be no satisfactory
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`explanation. All other claims of ineffective assistance are more appropriately resolved in
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`a habeas corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009,
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`original italics.)
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`“ ‘Whether to object to inadmissible evidence is a tactical decision; because trial
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`counsel’s tactical decisions are accorded substantial deference [citations], failure to
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`object seldom establishes counsel’s incompetence.’ [Citation.] ‘Generally, failure to
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`object is a matter of trial tactics as to which we will not exercise judicial hindsight . . . .
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`A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’
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`[Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) A failure to object rarely
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`establishes ineffective assistance of counsel. (People v. Hillhouse (2002) 27 Cal.4th 469,
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`502 (Hillhouse).)
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`B
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`Defendant claims his defense counsel was ineffective in failing to object when
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`Detective Montano said defendant’s use of the word “business” in his jail call with John,
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`and his statements that “he needed one” and “they can continue doing what they were
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`doing,” were all slang or code for drug dealing. Defendant argues Detective Montano
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`“was in no better position than the jury to interpret this vague language” and that her
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`testimony went beyond her area of expertise. Defendant concedes that defense counsel
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`challenged Detective Montano’s testimony on cross-examination, asking if her testimony
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`about the jail call was “conjecture” or nothing but “presumptions.” He notes, however,
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`that the prosecutor’s objection to the question as argumentative was sustained.
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`Defendant has failed to demonstrate that counsel was deficient in failing to object
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`to Detective Montano’s testimony about the phrases used by defendant. Detective
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`Montano testified as an expert on the possession of methamphetamine for sale. Although
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`defendant’s intent was an issue for the jury, an expert may give an opinion on whether
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`the drugs possessed were for the purposes of sale. (People v. Carter (1997)
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`55 Cal.App.4th 1376, 1377-1378.) The detective testified that she considered jail calls in
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`determining whether methamphetamine is possessed for sale. She also testified that a
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`drug dealer uses code in phone calls. An expert may render an opinion on phrases used
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`in the drug-dealing context because it is a subject “sufficiently beyond common
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`experience” that would assist the jury. (Evid. Code, § 801, subd. (a).) Under these
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`circumstances, defense counsel was not deficient in declining to object.
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`In any event, defendant has failed to demonstrate prejudice. The jury requested
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`the transcript of defendant’s jail call during deliberations but did not ask for a read back
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`of the Montano testimony. Moreover, even without the interpretation of the jail call,
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`there was overwhelming evidence that defendant possessed the methamphetamine for
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`sale, given that he had 470 doses without any paraphernalia for ingestion and packaged
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`the methamphetamine in weights used for distribution to buyers.
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`Defendant also claims Detective Montano informed the jury that defendant had a
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`criminal history and defense counsel was ineffective in failing to object. Prior to trial,
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`the prosecutor sought to introduce defendant’s prior possession for sale conviction in its
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`case-in-chief to show intent, knowledge, and absence of mistake. The prosecutor also
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`sought to impeach defendant, should he testify, with several other prior convictions.
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`The trial court excluded defendant’s prior convictions before 2001 as remote but allowed
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`the remainder to be used as impeachment. The prosecutor then decided that the prior
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`drug conviction would be stronger as rebuttal evidence. The trial court concluded
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`admissibility would be decided after the defense case.
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`When Detective Montano testified about defendant’s jail call, she interpreted
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`defendant’s statement that “she gotta take it” to mean that a woman needs to be charged
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`rather than him, explaining that “when you have somebody with a criminal history, and if
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`they are with somebody who doesn’t have that same criminal history, they will usually
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`try to, you know, push off whatever it is that is going to get them in trouble to that
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`person, whether it be guns, money, dope, you know.”
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`Defendant has failed to show that defense counsel’s performance was deficient in
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`failing to object. As we have explained, the failure to object rarely establishes ineffective
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`assistance. (Hillhouse, supra, 27 Cal.4th at p. 502.) Even if objectionable, defense
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`counsel may have decided his objection would focus the jury’s attention on the fact of a
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`criminal history. (See People v. Gurule (2002) 28 Cal.4th 557, 610.) Moreover,
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`defendant cannot show prejudice. As noted already, the evidence of possession for sale
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`was overwhelming.
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`Defendant further complains defense counsel failed to request a pretrial hearing on
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`Detective Montano’s testimony which would have revealed that her testimony was based
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`on inadmissible evidence and his criminal history. But even if we were to assume a
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`deficiency in that regard, defendant has not shown prejudice for the reasons we have
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`already stated. Defendant’s claim of ineffective assistance lacks merit.
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`II
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`Defendant further contends the trial court erroneously instructed the jury on the
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`procedure for considering the lesser included offense of simple possession. He claims the
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`jury should have been permitted to render a guilty verdict on the lesser included offense
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`without first reaching a unanimous not-guilty verdict on the charged offense of
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`possession for sale. Defendant bases his position on the argument that the holdings in
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`Stone v. Superior Court (1982) 31 Cal.3d 503 (Stone) and People v. Kurtzman (1988)
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`46 Cal.3d 322 (Kurtzman) were abrogated by Blueford v. Arkansas (2012) 566 U.S. 599
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`[182 L.Ed.2d 937] (Blueford).
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`A
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`In Stone, the California Supreme Court held that “the trial court is constitutionally
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`obligated to afford the jury an opportunity to render a partial verdict of acquittal on a
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`greater offense when the jury is deadlocked only on an uncharged lesser included offense.
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`Failure to do so will cause a subsequently declared mistrial to be without legal necessity.”
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`(Stone, supra, 31 Cal.3d at p. 519.)
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`Later, in Kurtzman, the California Supreme Court clarified the holding in Stone.
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`“Stone should be read to authorize an instruction that the jury may not return a verdict on
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`the lesser offense unless it has agreed beyond a reasonable doubt that defendant is not
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`guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from
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`considering or discussing the lesser offenses before returning a verdict on the greater
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`offense.” (Kurtzman, supra, 46 Cal.3d at p. 329, italics omitted.)
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`Blueford involved different circumstances. In that case Arkansas law required the
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`jury to convict on one of the charged offenses -- capital murder, first degree murder,
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`manslaughter, or negligent homicide -- or acquit on all the charged offenses. The jury
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`foreperson reported during deliberations that the jury unanimously voted against capital
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`murder and first degree murder, but the trial court declined the defendant’s request for
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`new verdict forms allowing the jurors to acquit on those charged offenses. When the jury
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`could not reach a verdict on all counts, the trial court declared a mistrial. In a new trial,
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`the trial court denied the defendant’s motion to dismiss the capital murder and first
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`degree murder counts on the ground of double jeopardy. (Blueford, supra, 566 U.S. at
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`pp. 601-610.) The United States Supreme Court held it was not improper to retry the
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`defendant on all counts because the jury foreperson’s report was not a final resolution of
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`anything; the jury continued its deliberations after the report. (Id. at p. 606.)
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`B
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`Here, the trial court instructed the jury on both the charged offense of possession
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`for sale and the lesser offense of possession. The trial court also instructed the jury that if
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`it found defendant not guilty on the charged offense, it may find him guilty on the lesser
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`offense, but the trial court could only accept a verdict of guilty on the lesser offense if the
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`jury reached a verdict of not guilty on the charged offense. The trial court further
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`instructed the jury that it could decide which order to consider the greater and lesser
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`crimes.
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`At 10:30 a.m. the jury retired to deliberate. About 4:30 p.m. the same day, the
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`jury sent a note to the trial court saying it was deadlocked on the “major count,” having
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`taken two votes with the first vote seven to five and the second vote six to six. In
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`discussing the jury note with defense counsel and the prosecutor, the trial court said it
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`was planning to remind the jury of their duty to attempt to reach a verdict. Defense
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`counsel objected, but requested in the alternative that the trial court also reinstruct on the
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`burden of proof. The trial court declined to reinstruct on the burden of proof. The next
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`morning, the trial court reminded the jury of its duty. An hour and 10 minutes later, the
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`jury sent a note indicating it had reached a verdict. The jury returned a guilty verdict on
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`possession for sale.
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`In Kurtzman, the jury was deadlocked on the greater charge but not the lesser
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`charge. (Kurtzman, supra, 46 Cal.3d at p. 327.) The California Supreme Court held that
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`although the jury must acquit on the greater charge before convicting on the lesser
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`charge, it can consider the chargers in any order. (Id. at pp. 330-331.) Here, the trial
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`court instructed the jury consistent with controlling California law, but defendant
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`challenges that approach, arguing it is not mandated by the double jeopardy clause, citing
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`Blueford. Defendant adds that the California Supreme Court is currently considering, in
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`People v. Aranda (2013) 219 Cal.App.4th 764, review granted December 18, 2013,
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`S214116, whether Blueford implicitly overruled Stone, and he sets forth policy reasons to
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`depart from the governing California case law.
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`Defendant’s arguments do not convince us that we should deviate from controlling
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`California Supreme Court precedent, and we decline to do so. The trial court did not
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`commit instructional error in this case.
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`III
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`In supplemental briefing, defendant asserts the three-year enhancement imposed
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`for his prior drug conviction must be stricken pursuant to a recent amendment to Health
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`and Safety Code section 11370.2. The People agree.
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`The recent amendment to Health and Safety Code section 11370.2 made the
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`enhancement applicable only to those previously convicted of violating Health and Safety
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`Code section 11380. Defendant’s prior drug conviction was for violating Health and
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`Safety Code section 11378. Thus, the three-year enhancement imposed by the trial court
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`at sentencing no longer applies to defendant. We will modify the judgment to strike
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`the enhancement.
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`DISPOSITION
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`The judgment is modified to strike the three-year enhancement imposed
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`for defendant’s prior drug conviction. (Health & Saf. Code, § 11370.2, subd. (c).)
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`The judgment is affirmed as modified. The trial court is directed to prepare an amended
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`abstract of judgment reflecting the judgment as modified and to forward a certified copy
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` /S/
`MAURO, J.
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`of the amended abstract to the Department of Corrections and Rehabilitation.
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`We concur:
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` /S/
`ROBIE, Acting P. J.
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` /S/
`BUTZ, J.
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