Filed 5/16/18 P. v. Gilbert CA4/3




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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN JOHN GILBERT,

Defendant and Appellant.


G054585

(Super. Ct. No. 16WF1884)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
A jury convicted defendant Ryan John Gilbert of felony possession of methamphetamine for sale (Health & Saf. Code, § 11378). Defendant was sentenced to three years of formal probation and given credit for time served. Defendant appeals from the judgment. He contends his trial counsel rendered ineffective assistance in failing to object to the People’s expert opinion testimony. We conclude defendant was not prejudiced by his counsel’s failure to object. Accordingly, we affirm the judgment.

FACTS

Late one night in August 2016 Officer Nathan Phelps of the Huntington Beach Police Department was in his patrol vehicle at the Triple 7 Motel. He observed defendant charging his phone inside a “snack area” near the motel lobby. He walked toward defendant, who then left the room leaving behind his phone and backpack. Phelps searched the backpack and found paperwork with defendant’s name, clothing, and three baggies of methamphetamine. Phelps did not find pay/owe sheets, drug paraphernalia consistent with methamphetamine use, cash, or a key to the motel. Defendant, who did not appear to be under the influence of methamphetamine, was arrested. Subsequent laboratory testing confirmed the three baggies contained approximately 25 grams of methamphetamine.
Phelps testified:
“Q: Thank you. Now, based on your training and experience, do you have an opinion as to whether this amount of methamphetamine was possessed for personal use versus sales?
“A: I do.
“Q: And what is your opinion?
“A: My opinion is that it was possessed for sales.
“Q: And what is your opinion based on?
“A: I base — my opinion is based on my training and experience. This far exceeds any amount I have had of personal use with addicts that I have arrested in the past for mere possession.”
Phelps stated it was not typical for a simple user to possess that amount of methamphetamine. Later Phelps testified his opinion was based on the totality of the circumstances. Major factors supporting his opinion included the lack of paraphernalia, the fact he did not believe defendant was staying at the hotel, and there was no hotel key. Other factors included that defendant engaged in odd behavior before Phelps contacted him.
Defendant called his mother to testify. She said defendant was an addict, and it had been an ongoing cyclical problem for years. Methamphetamine was defendant’s drug of choice. Defendant had checked into a recovery program, but left after only four days. She gave him money to stay at a local motel while he waited to check into a sober living facility.
Carlos Isais of the recovery center testified methamphetamine use is a progressive addiction, with a typical daily use ranging from one-half gram to two to three grams per day. Defense expert Nick Morrow testified a severe addict of methamphetamine may use four to six times per day, and that 25 grams is not a significant amount for a personal user to possess. Given a hypothetical with several facts from the case, Morrow opined no evidence of sales was indicated but the facts were consistent with possession by a significant user.

DISCUSSION

Defendant argues his trial counsel provided ineffective assistance by failing to object to Phelps’s opinion that defendant possessed the methamphetamine with intent to sell.
“Defendant bears the burden of proving ineffective assistance of counsel.” (People v. Haskett (1990) 52 Cal.3d 210, 248.) The benchmark for evaluating a claim of ineffective assistance is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) A defendant alleging ineffective assistance of counsel must meet a two-pronged test: (1) defendant must show counsel’s performance was deficient and; (2) defendant must show he was prejudiced by the deficient performance. (Id. at p. 687.) Appellate review of defense counsel’s performance is a deferential one, and this court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Id. at p. 689.)
To establish prejudice, the accused must show a reasonable probability — sufficient to undermine confidence in the outcome — that, but for the allegedly deficient performance, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at pp. 693-694.) The test “must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.” (People v. Watson (1956) 46 Cal.2d 818, 837.) Further, “[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. . . . 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.” (Strickland, at p. 697; id. at p. 691 [“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment”]; see People v. Camino (2010) 188 Cal.App.4th 1359, 1377 [court need not address both components of ineffective assistance inquiry if defendant makes insufficient showing on one].)
In this case we need not decide whether counsel’s performance was deficient, because defendant has not demonstrated prejudice. Defendant argues that but for trial counsel’s failure to object, the result of the trial would have been different. We disagree.
The jury was instructed that it was the exclusive judge of the creditability of a witness consistent with section 1127, and that it was not bound by the expert’s opinion but should give it the weight it deserved based on the expert’s underlying reasoning. This included the instruction the jury may disregard any opinion it found unbelievable, unreasonable, or unsupported by the evidence. It also included the instruction that if the expert witnesses disagree with one another, the jury is to weigh each opinion as against the others, examine the reasons given for each opinion and the facts or other matters on which each witness relied. “‘Jurors are presumed to be intelligent and capable of understanding instructions and applying them to the facts of the case.’” (People v. Lewis (2001) 26 Cal.4th 334, 390.) Defendant has not pointed us to any evidence indicating the jury did not follow the court’s instructions. (See In re Hanson (2014) 227 Cal.App.4th 906, 922.)
There is no question Phelps would have been permitted to express his opinion had the question been phrased as a hypothetical that “closely tracked the evidence in a manner that was only thinly disguised.” (People v. Vang (2011) 52 Cal.4th 1038, 1041.) Because “thinly disguised” hypotheticals are permitted, it is difficult to imagine any prejudice flowing from the simple failure to phrase the question as a hypothetical. The distinction is an abstraction, understood by those trained in the law, but likely lost by a juror without legal training.
Even without Phelps’s opinion defendant possessed the drugs for sale, there was ample evidence from which the jury could have reached this conclusion. Defendant was not under the influence of methamphetamine when found in possession of 25 grams of the substance and did not have in his possession any drug paraphernalia required to ingest methamphetamine, thereby supporting an inference he was selling the drugs, not using them. Defendant did not possess a motel key. He engaged in odd behavior late at night by charging his cell phone in the “snack area” of a motel in which he was not a guest and then leaving his cell phone and backpack behind unattended as police approached. These circumstances are consistent with an inference that defendant was at the motel to sell drugs, not because he intended to stay overnight with the money his mother gave him. Phelps testified it was not typical for someone to carry around 25 grams of methamphetamine. Defendant does not contest this aspect of Phelps’s testimony. Further, defendant’s mother testified he was an addict with methamphetamine as his drug of choice. It would not be a stretch for the jury to conclude addicts sometimes engage in drug sales to support their habit. And Isais testified a typical daily use for methamphetamine ranges from one-half gram to two to three grams per day. From this the jury could have concluded the 25 grams in defendant’s possession far exceeded that which he needed to support his habit in the near future. All these facts debunk defendant’s argument.
Even assuming defense counsel’s performance was deficient by failing to object to Phelps’s conclusion defendant possessed methamphetamine for sale, defendant has not shown that but for the allegedly deficient performance the result would have been different. (Strickland, supra, 466 U.S at pp. 693-694.) Accordingly, defendant failed to establish he suffered prejudice as the result of deficient performance by his counsel.
DISPOSITION

The judgment is affirmed.



IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.