THE PEOPLE v. RICHARD TANNER (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Richard M. Tanner appeals the judgment entered following his conviction by jury on one count of sale of marijuana.  (Health & Saf.Code, § 11360, subd. (a).)  We affirm.

An information filed February 25, 2009, charged appellant with two counts:  count one, sale or transportation of marijuana (Health & Saf.Code, § 11360, subd. (a));  and count two, possession of marijuana for sale (Health & Saf.Code, § 11359).   The information further alleged that appellant had suffered a prior conviction within the meaning of the “Three Strikes” law (Pen.Code, §§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)), and that he had suffered three prior convictions within the meaning of Penal Code section 667.5, subdivision (b).¹  Appellant pled not guilty and denied all the allegations, and the case proceeded to a jury trial.

Prosecution Evidence

James Beasley acted as a police assistant, which he described as a civilian who is paid by the police to help find people who are selling drugs.   Beasley started working as a police assistant after he unsuccessfully applied to become a police officer with the Long Beach police department, and he hoped that his experience would help him become an officer.   Beasley had participated in hundreds of drug buys on behalf of the police department.

On December 10, 2008, Beasley was working with Long Beach Police Officer Christopher Bolt, who was a detective in the narcotics investigation unit.   Detective Bolt was investigating information that marijuana was being sold from a garage near Smith Street and Anderson Avenue in the city of Long Beach.   Detective Bolt gave Beasley $20 in buy money and equipped Beasley with a hidden audio-video camera.   Beasley was instructed to knock on the garage door and try to purchase drugs if someone answered.

When Beasley knocked on the garage door, appellant came outside.   Appellant asked what Beasley wanted.   Appellant was holding a cigar with marijuana in it, so Beasley told him he “wanted some of that, and he asked [Beasley] how much, and [Beasley] told him a dub,” or $20 worth of marijuana.   Appellant told Beasley to wait and went back through the garage door.   Appellant came back with two bags of marijuana, gave them to Beasley, and said he had to get the rest, but he needed to get his car keys.   Beasley watched appellant walk into the garage, but he could not see into the garage and could not hear anyone else inside the garage.

After appellant came out, Beasley watched him go to a black car that was parked nearby, open the car door, and get something from the front passenger seat.   Appellant returned with a small black grocery bag, opened it, and gave Beasley two more bags of marijuana.   Beasley asked appellant for his phone number so he could call him when he wanted more, and appellant gave Beasley his cell phone number.   Appellant told Beasley his name was Little Herb.

Beasley put appellant's phone number in his own phone and returned to Detective Bolt, who was waiting in a car about a block away.   Beasley told Detective Bolt what happened, gave him the marijuana, and gave Detective Bolt a description of appellant.   Beasley stated that appellant was a Black male wearing a tan colored sweat suit with a jacket and jersey under it.   Detective Bolt sent a message to have appellant arrested and, about five minutes later, appellant was brought to Beasley for identification.   The DVD recording of the transaction was played for the jury, and the DVD and the transcript of the audio portion were admitted into evidence.

Detective David Strohman of the Long Beach Police Department was helping Detective Bolt with the investigation, primarily by conducting surveillance.   Detective Strohman was parked on Anderson Avenue, watching Beasley during the transaction.   He watched Beasley walk to the garage and knock on the garage door, then saw appellant emerge and have a conversation with Beasley.   He could tell that the person was a Black male, wearing a cream colored sweat suit that was very distinct, but he could not see the man's face.   Detective Strohman watched appellant walk to what looked like a black car, open the front right door, retrieve something, and walk back to Beasley.   After Beasley returned to Detective Bolt, Detective Bolt called Detective Strohman, who gave directions to other officers to come.   As Detective Strohman was giving directions, he saw appellant contact a black car that was driving by.

When the other officers arrived, they stopped the black car that appellant had accessed and detained the driver and passenger.   Detective Strohman went to the garage, detained appellant until Beasley identified him, and then arrested him.   Appellant was alone in the garage.   When appellant was searched, the buy money the police had given Beasley was found in appellant's pocket, and Detective Strohman confirmed the serial numbers.   Appellant had an additional $37 in his pocket.   Detective Strohman also took appellant's cell phone and confirmed with Detective Bolt that this was the cell phone number appellant had given Beasley.   Appellant asked Detective Strohman how he could be arrested, saying that he did not live there and that it was not his garage.

Officer Eric Fenner also testified at trial.   When Officer Fenner arrived, he saw some people being detained near a car.   Detective Strohman asked him to watch the garage while the other officers handled the stopped vehicle in case someone came out of the garage.   Officer Fenner opened the garage door and saw appellant, who was holding a cell phone and wearing a white athletic jersey and light colored sweat pants.   Officer Fenner gave the phone to Detective Strohman and placed it into evidence.

Officer Fenner helped search the garage and found a black bag containing 30 smaller Ziploc bags of marijuana and a bag with a brick of marijuana.   He also found a coffee can with a false bottom that contained marijuana.   Another officer found a clear plastic bag that held seeds from a marijuana plant.   Several digital scales commonly used to weigh marijuana and a blue Mead notebook were also found.

Detective Bolt testified at trial that he had received information that marijuana was being sold out of a garage at 484 Smith Street in Long Beach, so he met with Beasley, searched him to verify that he did not have any contraband on him, and provided him with $20 in buy money that had been photocopied.   Detective Bolt drove Beasley to the garage, parked down the street where he could watch, asked Detective Strohman to position himself where he could see the garage door, and told Beasley to knock on the garage and try to buy some marijuana.   Detective Bolt turned on an audio-video camera that was hidden on Beasley.

Detective Bolt was not able to watch Beasley walk all the way to the garage, but Detective Strohman was in radio contact with Detective Bolt and told him he was watching Beasley after he left Detective Bolt's sight.   Beasley returned about five minutes after leaving Detective Bolt's car, and Detective Bolt turned off the recording device.   Beasley gave Detective Bolt four small baggies of marijuana and told him he had purchased them, using the $20 of buy money, from a male Black who came out of the garage they were investigating.   Beasley told Detective Bolt that appellant was wearing an all tan, velour sweat suit.   Beasley told him appellant said his name was Herb, and gave Bolt appellant's phone number.

After appellant was detained, Beasley identified him.   Detective Bolt then told Detective Strohman that he was going to call the number appellant gave Beasley and told Detective Strohman to answer appellant's cell phone if it rang.   Detective Strohman answered the phone.   The number that Detective Bolt called had a 562 area code.

Detective Strohman told Detective Bolt that the prerecorded buy money was found in appellant's pocket.   Detective Bolt examined the marijuana baggies found in the garage where appellant was detained, and he testified that they were similar to the ones Beasley bought from appellant.

Detective Bolt also testified that the blue Mead notebook that was found in the garage contained information about prices, “and it referred to dimes and dubs,” which were common street terms for $10 and $20 worth of drugs.   His opinion was that the notebook was “a ledger that was showing a lot of pay-owe information and records of what was being paid for, of the marijuana.”

Detective Bolt did not do any investigation into the owner of the garage.   He did not know if the black car that appellant got the marijuana from was searched, if any keys for the black car were found, or if any other vehicles were searched.   Defense counsel asked if there was a green Thunderbird at the scene, but Detective Bolt did not know.

Defense Evidence

Appellant testified on his own behalf.   He stated that on December 10, 2008, he and his wife drove in their green Thunderbird and parked on Anderson Avenue.   There was a black Pontiac parked a few cars away from his car, on the same block.   Appellant was going to meet someone named Alvin Jenkins, who lived there.   Jenkins's home was on top of the garage, and there were about six garage doors in the area.   The garages were shared by other people on the block.   Appellant was familiar with the residences because his parents lived down the street.

Appellant had met Jenkins at a basketball court at a park and played basketball with him three or four times a week.   Appellant had called Jenkins earlier to ask if he could borrow $40 from him.   When appellant arrived, Jenkins was outside already, and he took appellant into the garage and told him to wait there while he got the $40.   Appellant was wearing a white shirt with grey sweat pants that did not match, and Jenkins was wearing a light colored basketball warm-up suit.

After appellant went into the garage with Jenkins, there was a knock at the garage door, so Jenkins went outside.   A few minutes later, Jenkins returned and gave appellant $20 and told appellant he was going upstairs to get the other $20.   Before receiving the $20 from Jenkins, appellant had $37 in his pocket and $100 in his sock.   He was carrying the $100 in his sock because he and his wife had been shopping all day.   Appellant wanted to borrow $40 from Jenkins because he needed $175 to get his children's clothes and toys out of layaway at K-Mart.

While appellant was waiting for Jenkins to return, the garage door opened, and appellant was taken outside by police officers.   When the police were taking appellant outside, he stated to Detective Strohman, “I don't live here.   That's not my garage.   How can I be selling marijuana?”

Appellant's cell phone was taken from him, and Detective Bolt was using it.   Appellant's cell phone number had a 310 area code.

Appellant gave officers his car keys to search his car.   He said that he did not see the police search the car, but when his wife picked him up the next morning, the car had been ransacked.   The seat cushions, back seat, and glove compartment had been removed.   Appellant testified that Jenkins drove a black Pontiac.   He stated that the police never went upstairs to investigate and that Jenkins was never arrested.   Appellant admitted that he was convicted of robbery in 1999, possession of marijuana in 2003, and forgery in 2005.

On cross-examination, the prosecution admitted into evidence appellant's booking photograph, indicating that appellant was wearing a basketball jersey.   Appellant described Jenkins as slightly taller than he, and light-skinned, with short curly hair.   The prosecutor asked appellant about his prior convictions, and appellant admitted them, but he stated that the dates were wrong.

Appellant's wife, Charlesetta Lowery, testified on appellant's behalf.   She testified that appellant had called Jenkins to ask if he could borrow money.   She and appellant went shopping and, after they came home, appellant got a phone call.   They left for Jenkins' house to get the money to get their children's things out of layaway at K-Mart.   While appellant went into Jenkins' house, Lowery walked to a store, and saw the police when she returned.

After appellant was arrested, Lowery saw the police disassemble her car, a green Thunderbird.   They tore out the rubber lining around the doors, the speakers from the doors, and the seats.   Lowery was not allowed to drive the car home from the scene but had to go to the Long Beach Police Department to get the keys.

Rebuttal Evidence

Detective Strohman testified on rebuttal that, at the conclusion of the investigation on December 10, 2008, he gave the keys to a green car to appellant's wife or girlfriend before he left.   He did not search the car, but he thought it was searched before he gave her the keys.   He tried to search the black car that was on the scene, but the keys he found on appellant did not open the black car, and the police never found any keys for the black car.

Long Beach police officer George Ayala testified that he was assigned to search appellant.   Appellant was wearing a white and red basketball jersey and tan velour sweat pants and had with him a sweatshirt that matched the pants.   Officer Ayala found $57 in appellant's pocket.

The jury found appellant guilty of count one, sale of marijuana, but the court declared a mistrial on count two, possession of marijuana for sale, because the jury was unable to reach a verdict as to that count.   Count two was dismissed on the prosecutor's motion.

Although appellant initially moved to bifurcate the allegations of prior convictions, he subsequently waived his right to a court trial and admitted the prior allegations.   Appellant was sentenced to the mid term of three years, doubled to six years pursuant to the Three Strikes law.   The court exercised its discretion not to impose the one-year priors under Penal Code section 667.5, subdivision (b), and struck the enhancements.   The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 22 days of actual custody and 10 days of good time/work time credit for a total of 32 days.

Appellant filed a notice of appeal on November 10, 2009, requesting leave to file a “tardy appeal due to extraordinary circumstances beyond [his] control,” explaining that his retained counsel failed to file a notice of appeal after indicating that he would.   On December 28, 2009, appellant filed an application/petition for relief from default for failure to file a notice of appeal.   On February 8, 2010, we granted appellant's application and ordered the Los Angeles Superior Court to accept the November 10, 2009, notice of appeal as timely filed.

After review of the record, appellant's court-appointed counsel filed an opening brief requesting this court to review independently the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On September 29, 2010, we advised appellant that he had 30 days within which to submit any contentions or issues he wished us to consider.   On October 26, 2010, appellant filed a supplemental brief.

Appellant raises four claims.   First, he argues that the prosecutor selectively prosecuted him and refused to file charges against the owner of the property where the marijuana was found.   Second, appellant argues that the trial court abused its discretion in making a finding regarding the date of his prior conviction for forgery.   Third, appellant claims ineffective assistance of trial counsel.   Fourth, appellant claims ineffective assistance of appellate counsel.

As to appellant's first claim, there is no presumption of vindictiveness where a prosecutor exercises his broad discretion to decide to bring charges.   (United States v. Goodwin (1982) 457 U.S. 368, 382.)   Appellant accordingly must present evidence showing that the prosecutor's decision was motivated by the desire to punish him for exercising his constitutional rights.  (People v. Michaels (2002) 28 Cal.4th 486, 515.)   Because he has failed to present any such evidence, we reject his claim.

Appellant's second contention regarding the date of his forgery conviction also fails.   Appellant admitted the allegations of his prior convictions, including the allegation of a prison term in 2005 for forgery.

Appellant claims ineffective assistance of trial counsel, citing his trial counsel's failure to call a witness who allegedly saw the drug buy and told an investigator that appellant was not the person who sold the marijuana to Beasley.   Appellant also claims that his trial counsel was ineffective for failing to produce his cell phone records, which he claims would have established that the police were lying about calling his phone.   He also contends that his trial counsel was ineffective for failing to file a notice of appeal.

“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.  [Citations.]  A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy․  If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.  [Citations.]”  (People v. Gamache (2010) 48 Cal.4th 347, 391 (Gamache ).)

In addition, “Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674], informs us that ‘there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.   In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.   The object of an ineffectiveness claim is not to grade counsel's performance.   If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ ”  (In re Cox (2003) 30 Cal.4th 974, 1019-1020.)

The decision whether to call a witness is ordinarily a question of trial strategy.  (People v. Bolin (1998) 18 Cal.4th 297, 334.)   Where, as here, the record sheds no light on trial counsel's decision not to call the witness, appellant has failed to overcome the presumption that trial counsel's decision was a matter of sound trial strategy;  therefore, we must reject the claim.   (Gamache, supra, 48 Cal.4th at p. 291.)

The record sheds no light on trial counsel's inaction regarding appellant's cell phone records.   However, even if counsel's performance was deficient (an issue we do not decide), the jury heard testimony regarding appellant's cell phone number, including testimony that he had a 310 area code and that the number Detective Bolt called to verify the cell phone number given to Beasley had a 562 area code.   It is not clear that, had trial counsel obtained appellant's cell phone records, the outcome would have been different.   Appellant therefore has failed to establish that trial counsel's failure to obtain his cell phone records caused him to suffer prejudice to a reasonable probability.  (Gamache, supra, 48 Cal.4th at p. 391.)

As to trial counsel's failure to file a notice of appeal, appellant can demonstrate no prejudice because we subsequently granted his application for relief from the failure to file a notice of appeal and have reviewed the merits of his appeal.

Appellant also contends that his appellate counsel was ineffective for failing to file an opening brief raising viable issues such as the date of the forgery conviction and for failing to correct the record as to the date of the forgery conviction.   As we note above, appellant's claim regarding the date of his forgery conviction is not meritorious;  therefore, appellate counsel's failure to raise the issue did not prejudice appellant.   In addition, we have considered the claims appellant raised in his supplemental brief.   Appellant has suffered no prejudice from appellate counsel's failure to raise claims we have found to be without merit.   For all these reasons, we reject appellant's claims of ineffective assistance of counsel.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The information was amended on May 28, 2009, correcting one of the prison prior allegations..  FN1. The information was amended on May 28, 2009, correcting one of the prison prior allegations.

WILLHITE, Acting P. J. SUZUKAWA, J.