P. v.Jaffray

Filed 3/1/07 P. v.Jaffray 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Barbara J. Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stanley Cross, Acting Supervising Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Carol Jaffray, the girlfriend of a prison inmate, Williams, was convicted by jury verdict of unlawfully possessing marijuana at a prison (Pen. Code,  4573.6; count 1)^[1]and of bringing marijuana to an inmate in prison ( 4573.9; count 2).^[2] The trial court sentenced her to five years of probation. On appeal, defendant contends (1) the trial court erred by admitting expert testimony because the witness was not qualified as an expert and because his testimony was based on speculation, (2) the trial court erred by permitting the jury to hear a recording of a telephone call between defendant and Williams and to receive a transcript of the call without the courts first determining the audibility of the recording and the accuracy of the transcript, and (3) insufficient evidence supported the convictions because it was inherently improbable under the circumstances that the inmate porter was able to insert drugs into his rectum. Defendant also contends her counsel provided ineffective assistance by failing to object to the expert testimony, to the admission of the telephone conversation transcript, and to Portillos testimony of what he saw on the surveillance tapes. Finding no merit in these assertions, we affirm the judgment.

FACTS

On January 1, 2005, defendant went to the Corcoran State Prison to visit Williams. The visiting room contained several round tables for inmates to sit with visitors and a few booths with glass windows for noncontact visits. In addition, there were several vending machines for visitors to purchase food and drinks for themselves and for the inmates. Five surveillance cameras recorded the activities in the room. Two correctional officers guarded the room, generally from a podium in the front, and two inmate porters assisted with chores such as moving chairs and emptying trash cans, although they often sat at the porters table in the front of the room several yards from the podium. The inmate porters wore white prison jumpsuits that opened down the front and tied shut with about four or five sets of strings. Between the ties, which could be opened by simply pulling the strings, the jumpsuits were loose and open. Napkins for visitors were kept in a stack on the porters table. People moved about the room, although there were some restrictions.^[3]

On this particular day, Correctional Officer Portillo was one of the two officers guarding the room and Inmate Porter Dunlap was one of the two porters assisting the officers. Defendant and Williams had a noncontact visit because Williams had not complied with the prisons hair grooming rules. Therefore, Williams sat in a booth behind a glass window and defendant sat on the other side of the glass in the back corner of the visiting room.

The surveillance footage showed that at about 11:15 a.m. Dunlap stopped at the booth to talk to defendant and/or Williams. Dunlap looked toward the podium or the front of the room. He walked away, stopped, returned, talked again, looked toward the front again, then walked away. At about 12:08 p.m., Dunlap arranged chairs at a table near the front of the room. He walked toward the back and past defendant and Williams. He stopped, walked back, talked, started to walk away, returned, pointed to the front, then walked to the front and sat down at the porters table.^[4]

At about 12:11 p.m. Dunlap retrieved two stacked chairs and dragged them past defendant and Williams. As he passed them, he made a cupping gesture to them with his free hand, hidden from the officers by his body. Defendant stood up and walked to the vending machines. Dunlap walked toward the front, stopped, then turned around and walked behind defendant and past the vending machines. As he did, he looked back at defendant. He walked to the front and picked up a napkin as he sat down at the porters table. Defendant bought a soda and started walking toward the porters table. She transferred the soda from her left hand to her right, which was on the side facing the podium. As she approached, Dunlap stood up and walked back to meet her. She pulled a white object from her waistband and placed it in the napkin Dunlap held out for her. As they did, they turned their bodies so defendant was not directly facing the officers at the podium. This hand-off occurred at about 12:12:40 p.m. Dunlap immediately sat down and defendant picked up a new napkin and walked on.

At this point one surveillance cameras view of Dunlap was blocked by a vending machine. The camera was behind the vending machine and Dunlap sat in front of the machine. Only the top of his head was visible. Moreover, that cameras footage froze from about 12:12:53 to 12:13:16 p.m., so any head movements made by Dunlap during that time were not recorded. The other camera that captured Dunlap during this time was mounted on the opposite side of the room at such a distance that Dunlaps movements were difficult to discern; however, no dramatic movements were apparent. That recording ended at about 12:13:07 p.m. and there was no surveillance footage of the ensuing period admitted into evidence.

Portillo testified that at about 12:12 p.m. he saw defendant approach the porters table. Portillo, who was doing paperwork at the podium, was alerted because Dunlap rose and walked to meet defendant, which was unusual. Defendant was carrying a soda can. Portillo saw defendant hand Dunlap a white object. Portillo did not see defendant or Dunlap throw anything in the trash can. To verify what he had seen, Portillo examined the surveillance tape. Portillo then called his supervisor. Portillo and his fellow officer watched Dunlap until the supervisor arrived. Portillo did not see Dunlap untie his jumpsuit or put his hands inside it, although Dunlap could have reached inside his jumpsuit through an opening and Portillo would not have been able to see what he was doing with his hands under the table. Portillo reviewed the tape with his supervisor.

Correctional Officer Lopez responded to the visiting room at 12:30 or 12:40 p.m., about 18 to 28 minutes after the hand-off. He was told Dunlap was an inmate in possession. Dunlap was in restraints and Lopez pat-searched him. Then, while Lopez watched Dunlap, other officers took Dunlaps clothing from him. This included his jumpsuit, boxers, T-shirt and socks. Lopez noticed that Dunlap was fidgety and refused to make eye contact. Lopez found his actions suspicious. During the search, Dunlap was asked to squat and cough. He made a very shallow cough and Lopez saw an object dissimilar to flesh expose itself for a second. The item was white and plastic. Lopez reported his observation to the supervisor and told him he believed he had seen contraband. After the strip search, Dunlaps clothes were returned to him and he dressed. Lopez placed Dunlap in waist chains, which allowed Dunlap to move his hands around his waist and body. He could bring both hands together in front of his body. Lopez then began a procedure called taping to prepare Dunlap for contraband watch. Using masking tape, Lopez taped Dunlaps clothing closed so nothing could escape his jumpsuit. He also taped around Dunlaps waist to keep the jumpsuit close to his body. This was the typical procedure when an inmate was suspected of secreting contraband in his rectum. Lopez escorted Dunlap to a holding cage. As they walked, Dunlap seemed hesitant and attempted to slow the escort. Lopez checked the cage to make sure it was clean and empty, and placed Dunlap in it. The cage was smaller than a telephone booth and made of wire mesh. Dunlap was the only inmate in the holding cage area. Lopez left an officer in the vicinity but no one was directly watching Dunlap. Lopez believed a correctional officer was present at all times during Dunlaps contraband watch.

At 2:00 p.m. Correctional Officer Buola started his shift. He was assigned to sit in the holding room and observe Dunlap. Buola sat eight to ten feet from Dunlap and basically just watched him. Buola did not leave the room. Dunlap stood until about 4:00 p.m., when Buola opened the cage. At that time, Buola saw an oval bindle on the floor of the cage. He saw that the tape around his left ankle had been ripped open and his left pant leg was hanging loosely. Buola had not seen Dunlap rip the tape, but it was possible he had done it before Buola arrived. Buola did not see Dunlap make any motion toward his ankle or do anything out of the ordinary. Buola put the bindle in a plastic bag and tied it up. The officers put Dunlap back into the cage.

Correctional Officer Peters examined the bindle. It had a brown substance on it that smelled like fecal matter. It was a cylinder with rounded ends, about an inch and three-quarters wide and about three inches long. The cover was a latex balloon or condom. Inside was a red cellophane wrapping around a smaller bag that contained about two grams of marijuana.

Peters testified that inmates would often pre-lubricate themselves with lotion or Vaseline, which they were allowed to buy in prison, before inserting contraband into their rectums. This particular bindle did not appear to have any lotion or Vaseline on it.

Defense Evidence

Defendant testified she was 57 years old and had never been charged with a crime. She met Williams when she accompanied her daughter to a prison for her school projects. Defendant had been visiting various inmates for 13 years. She loved Williams but she knew they could not have a normal relationship because he was in prison. She would not bring him drugs in prison because it would be morally wrong and because she did not want to go to jail. She had never even touched marijuana.

She explained that the surveillance tape showed she went to get a soda, then approached the porters table to get a napkin. She had a couple of napkins that she had been using to wipe her nose because she had a cold. She kept the napkins in her waistband, as was her habit, because her pants had no pockets. As she approached the porters table, Dunlap got up and they smiled at each other. She had seen him during her previous visits. He said to her, Are you bringing me a soda[?] They both laughed. She reached into her waistband and he stood up. She said, No, but you can have my trash. She gave him the dirty napkins, picked up a clean one and went back to her seat. She explained that her purpose in going to the porters table was only to get a new napkin, not to give Dunlap her trash. She gave him her trash only because he made the joke about bringing him a soda. She explained that the video did not show her speaking to Dunlap because their conversation occurred before she entered the cameras field of view. Defendant said it was very common for inmate porters, who were not allowed to purchase food or drinks, to request or beg some from visitors.

Defendant testified Williams had refused to comply with the new hair-length restrictions since his transfer to Corcoran. For that reason, he had been denied contact visits and was required to sit behind a glass window. He and Portillo had ongoing conflicts over the issue. Defendant had visited Williams at Corcoran about six times; prior to that time, he was held in Salinas, where the rules were less strict.

Defendant said Williams called her 30 to 40 times per month. His telephone calls were limited to 15 minutes and therefore he would cover as much as possible and often jump between subjects.

DISCUSSION

I. Expert Witness

Correctional Officer Peters testified to the meaning of a December 29, 2004 telephone call between defendant and Williams. Peters opined that the call contained a coded discussion regarding the delivery of drugs into the prison.

A. Qualification of Expert Witness

Defendant contends Peters was not qualified by the court as an expert in coded verbiage and should not have been permitted to testify to the meaning of the telephone call between defendant and Williams.

The trial court has considerable latitude in deciding whether a person has sufficient knowledge, skill, experience, training or education toqualify as an expert. (Evid. Code,  720; People v. Ramos (1997) 15 Cal.4th 1133, 1175.) On appeal, this determination will not be upset absent a manifest abuse of discretion. (People v. Ramos, supra, at p. 1175.)

Qualification of an expert is relative to the topic of his opinion testimony. (People v. Ramos, supra, 15 Cal.4th at p. 1175.) There is no rigid classification of expert and nonexpert witnesses; a person need not be a professional or have an advanced degree to give expert opinion testimony as long as they have sufficient special knowledge, skill, training, experience, or education beyond that of a lay juror. (See generally 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence,  38, p. 569.)

Contrary to defendants claim, the prosecutor in this case did lay a foundation to establish Peterss expertise in the field of inmate telephone call interpretation, coded verbiage, and prison drug trafficking. Peters testified he had been a correctional officer for over 12 years. For more than six years he had worked with the Investigative Services Unit, a specialized unit that investigated crimes inside the prison. He investigated about 20 to 25 drug crimes per year. He had been trained in and had spoken with inmates about drug possession within the prison, drug sales within the prison, and coded verbiage. He had testified regarding coded verbiage within telephone calls in other cases. He explained that prison inmates used coded verbiage so the correctional officers, who listened to their telephone calls, would not understand their conversations.

Peters testified that drugs were smuggled into the prison by both visitors and staff. Generally visitors smuggled drugs into the visiting room where they were allowed to visit with inmates. Based on his training and experience, Peters explained that some visitors hid drugs in their undergarments and others placed them in their rectum (a procedure called keistering), vagina, or mouth. The drugs were usually packaged in balloons, rubber gloves, condoms, or electrical tape, and were generally wrapped tightly to form a cylindrical shape. Small bindles were often packaged inside a larger bindle. Depending on their packaging, the drugs would be handed off at the visit, sometimes directly and sometimes within food. Visitors who brought drugs into the prison were commonly referred to as mules. Once the inmates received drugs from visitors, the inmates might keister the drugs to bring them back into their cells or use the inmate porters to transfer the drugs.

Peters testified that inmates made requests and arrangements with visitors for delivery of the drugs. Inmates were generally allowed one 15-minute telephone call per day. The inmates knew the correctional officers regularly listened to their telephone calls and therefore the inmates used coded verbiage to request and discuss drug deliveries. The officers listened to the calls using the Inmate Monitoring Automated Recording System (IMARS), which recorded and stored all the calls on a hard drive and allowed various methods of searching. Peters had been involved in the initial set-up of the IMARS at the prison and was asked for his input based on his experience with computers and with inmate criminals. The system also allowed the officers to copy recorded calls from the IMARS hard drive to a compact disc (CD). Peters had experience performing such transfers.

This testimony demonstrated that Peters had special knowledge, skill, experience, training, or education in the field of prison coded verbiage and drug trafficking. (Evid. Code,  720, subd. (a).) The trial court did not abuse its discretion in determining that Peters qualified as an expert.^[5]

B. Admissibility of Expert Opinion

Expert opinion testimony is admissible only if the subject matter of the testimony is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code,  801, subd. (a).) We review the trial courts ruling on the admissibility of expert testimony for abuse of discretion. (People v. McDonald (1984) 37 Cal.3d 351, 377, disapproved on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 912.) We may not reverse the exercise of a trial courts discretion absent a showing it was arbitrary, capricious or patently absurd. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.)

Whether a prison inmates recorded telephone conversation contains a coded discussion about drugs is, in our opinion, a matter reasonably beyond common experience because a lay person might not know the habits of prisoners or appreciate the meaning of particular coded verbiage, especially coded verbiage that is constantly evolving to evade detection. Therefore, Peterss opinion on this matter would reasonably assist the trier of fact. (See, e.g., People v. Ochoa, supra, 26 Cal.4th at pp. 438-439 [meaning of defendants 187 tattoo; meaning of gang graffiti, hand signs]; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 and authorities cited therein [meaning of gang graffiti, tattoos, hand signs, attire]; People v. Gamez (1991) 235 Cal.App.3d 957, 965 [same], disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)

Defendant also contends that Peterss opinion was inadmissible because it was based on speculation. Indeed, much of Peterss testimony on this subject was based on what he found to be suspicious and suggestive within the telephone conversation, but the essence of expert testimony is the drawing of conclusions from evidence with the assistance of knowledge, skill, experience, training or education. This is what Peters offered the jurors. The trial court instructed the jurors to determine the strength of the opinions, consider the strengths and weaknesses of the opinions bases, give the opinions the weight they deserved, and disregard the opinions if they found them unreasonable. (CALJIC No. 2.80.) Thus, the jurors were free to reject Peterss interpretations if they determined they were without basis or reason. There was no abuse of discretion.^[6]

II. Recording and Transcript of Telephone Call

Defendant contends the trial court erred when it allowed the jurors to hear the recording and read the transcript of the December 29, 2004 telephone call between defendant and Williams. Defendant asserts that the court should have undertaken an independent review to first determine the recordings audibility and the transcripts accuracy. This failure, she claims, violated her right to due process.

A. Audibility of Recording

If a proper foundation is laid, an audio recording of a conversation may be admissible in the courts discretion. (People v. Siripongs (1988) 45 Cal.3d 548, 574.) In order to authenticate a recording, the party seeking to introduce it must establish that it is an accurate representation of what it purports to be. (Evid. Code, 250 [writing includes recording], 1401 [authentication of writing required]; People v. Mayfield (1997) 14 Cal.4th 668, 747.)^[7] Typically, a police officer will testify as to his or her role in the taping, the manner in which the tape was recorded, when the conversation took place, whether a recording was made of the conversation, and whether the recording fairly and accurately sets forth the conversation. (People v. Spencer (1963) 60 Cal.2d 64, 77.) In other words, the party seeking to admit the recording must show, usually through the testimony of a police officer, that the recording is complete, accurate and intelligible. (Id. at p. 78.)
However, [t]o be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness. (People v. Demery (1980) 104 Cal.App.3d 548, 559; People v. Miley (1984) 158 Cal.App.3d 25, 36 [tape recording containing unintelligible parts was not unduly prejudicial as admitted]; People v. Phillips (1985) 41 Cal.3d 29, 78 [letters held admissible because the letters clear meaning was not affected by the unintelligible parts]; People v. Finch (1963) 216 Cal.App.2d 444, 454 [recording admissible absent a showing that any statement was a misstatement or that material statements were missing].) (People v. Von Villas (1992) 11 Cal.App.4th 175, 225 [tape recording of prison conversation containing numerous gaps and unintelligible portions properly admitted because audible portion was clearly relevant to the case].) (People v. Polk (1996) 47 Cal.App.4th 944, 952; People v. Siripongs, supra, 45 Cal.3d at p. 574 [a tape recording may be admissible even if substantial portions of it are unintelligible].) Thus, a partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tapes relevance is destroyed. [Citations.] The fact a tape recording may not be clear in its entirety does not of itself require its exclusion from evidence since a witness may testify to part of a conversation if that is all he heard and it appears to be intelligible. [Citation.] (People v. Polk at pp. 952-953, fn. omitted.) The rule is derived from the long-established principle that a witness may testify to part of a conversation if that is all that he heard and it appears to be intelligible. [Citations.] (People v. Hall (1980) 112 Cal.App.3d 123, 126-127.)

There can be no doubt that before permitting recordings to be played to the jury the court should satisfy itself that they are substantially complete and substantially correct as to matters that are material and important. It is a matter that must be left to the discretion of the court. [Citation.] (People v. Polk, supra, 47 Cal.App.4th at p. 953.) In the admission or rejection of such evidence, the trial court has broad discretion; absent a manifest abuse of that discretion resulting in a miscarriage of justice, its decision will not be reversed on appeal. (Id. at p. 953.)

Here, the prosecution laid the foundation for admission of the recording when Officer Peters testified that the recording was an exact copy of the conversation between defendant and Williams. (People v. Williams (1997) 16 Cal.4th 635, 662 [prosecution laid foundation for admission of tape recording when detective testified that the tape was a record of his conversation with defendant].) Peters said he made the copy from the IMARS, which also allowed him to verify the date, the number, the source, and the maker of the call. He testified that he listened to the recording six or seven times and that, although some portions were inaudible, parts of the audible portions constituted a coded conversation between defendant and Williams regarding the delivery of drugs into the prison. From this, the trial court properly satisfied itself that the recording contained sufficient audible portions of matters having a material and important bearing on the case. (See, e.g., People v. Polk, supra, 47 Cal.App.4th at p. 953.)

We too have listened to the recording and agree that it contained relevant audible portions suggesting a coded conversation regarding drugs. Even though portions of the conversation were inaudible, these portions did not destroy the recordings relevance. Because there were intelligible and relevant statements that did not require recourse to speculation, the recording was admissible. We discern no abuse of discretion.

B. Accuracy of Transcript

Admission of a transcript of a recording also requires that the accuracy of the transcript be established. (People v. Wojahn (1959) 169 Cal.App.2d 135, 146.) While ordinarily a trial judge will listen to a tape recording to determine the accuracy of the transcription (ibid), this procedure does not constitute the exclusive method for establishing its authenticity. (People v. Ketchel (1963) 59 Cal.2d 503, 518-519 [officer verified transcript by testifying transcript correctly represented the conversation he had heard], disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649; Id. at p. 655 [officer verified the transcript of the tape-recorded statements as required for its introduction]; People v. Wootan (1961) 195 Cal.App.2d 481, 485 [officer who listened to the conversation at the time of the recording testified that transcript of the recording accurately reflected the discussion].) Once admitted into evidence, transcripts of admissible recordings are only prejudicial if it is shown they are so inaccurate that the jury might be misled into convicting an innocent man. (People v. Polk, supra, 47 Cal.App.4th at p. 955.) Again, we review the trial courts admission of a transcript for abuse of discretion. (Id. at pp. 955-956.)

In this case, before the recording was played for the jury, Peters testified that he read the transcript, compared it to the recording, and edited it to improve its accuracy. He believed the transcript was accurate. He explained there were portions of the recording he could not understand and therefore he marked the portions as inaudible on the transcript.^[8] The court instructed the jurors, as follows:

These [transcripts] are for you to follow along, jury. The evidence is a CD [recording] thats being play [sic]. This is Exhibit 2, a copy of what is being passed to you [too]. These are copies just to following [sic] along as it is being played. It will be part of your functions to determine whether or not the transcript is accurate as far as what is contained on the CD. And if there is a discrepancy in your mind, the CD should prevail [over] the transcript.

In light of Peterss testimony regarding the transcript and the trial courts cautionary instructions, defendant has not shown on this record that the transcript was so inaccurate as to mislead the jury. We do not believe that prejudicial error arose from the fact that the court itself did not first compare the transcript with the recording, when the officer who repeatedly listened to the recording testified to the accuracy of the transcript. We have also reviewed the transcript of the recording and believe it accurately represents the recording. Therefore, no error is shown and the court did not abuse its discretion in allowing the jurors to use the transcript as a guide while listening to the recording. (People v. Polk, supra, 47 Cal.App.4th at pp. 955-956.)^[9]

III. Sufficiency of Evidence

Defendant argues that the evidence was insufficient to support the convictions because it was inherently improbable that Dunlap placed the bindle of marijuana in his rectum while under surveillance in the visiting room. Defendant does not dispute that a bindle of marijuana came from Dunlaps rectum, but she maintains that Dunlap did not receive it from her at 12:12 p.m. and therefore he must have received it from someone else at an earlier time. The People respond that the jury could have inferred that Dunlap inserted the drugs during the time he was not fully in view of the surveillance cameras.

To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Although we review the whole record, the uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, [c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove [her] guilt beyond a reasonable doubt. [Citations.] [Citation.] (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jurys findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Id. at p. 1329; People v. Panah, supra, 35 Cal.4th at pp. 487-488.)

The record here contains ample evidence that Williams and defendant discussed in coded language in a telephone conversation both past and future drug deliveries to the prison, that defendant and Dunlap spoke more than once that morning at the prison, that Dunlap made a gesture to defendant and/or Williams to give him something or to follow him, that defendant followed Dunlap, that Dunlap prepared to receive the hand-off by taking a napkin, that defendant put something white into Dunlaps napkin, that they turned away from the officers podium as they did, that Dunlap returned to his seat after receiving the object from defendant, that a few hours later a feces-covered package of marijuana appeared in Dunlaps holding cage, and that his taped pant leg had been ripped open. Although the surveillance footage does not show any dramatic physical maneuvers by Dunlap following the hand-off, neither does it capture Dunlap fully or clearly during that time. Also, in general, the officers appear busy and not particularly attentive to the activities in the room, including that of the porters. Furthermore, the footage shows that once Dunlap sat down, the second porter was between him and the podium. Portillo testified that although he saw no suspicious movements after Dunlap sat down, he could not have seen what Dunlap was doing under the table. Finally, there were several minutes after Dunlap sat down that were not covered by the surveillance footage. From this evidence, the jury reasonably could have inferred that Dunlap did have an opportunity to hide the marijuana and was able to insert the package into his rectum between the time he received it from defendant and the time his pant legs were taped shut. We conclude substantial evidence supports the conviction.

IV. Ineffective Assistance of Counsel

Lastly, defendant contends that various failings of trial counsel cumulatively resulted in ineffective assistance. To establish ineffective assistance of counsel, a defendant must show (1) counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, the accused must make a showing sufficient to undermine confidence in the outcome that but for counsels deficient performance there was a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington, supra, at pp. 693-694; People v. Ledesma, supra, at pp.217-218.) The reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without determining the reasonableness of counsels performance. (Strickland v. Washington, supra, at p. 697; People v. Ledesma, supra, at pp. 216-217; People v.Hester (2000) 22 Cal.4th 290, 296-297.) We will do so here.

We have addressed all of defendants contentions in this regard except for her claim that counsel was ineffective for failing to object to Portillos testimony regarding what he saw on the surveillance tapes. We have carefully reviewed the footage and we believe Portillos testimony regarding the recorded activities simply stated the obvious and the actions he described were clearly visible and not open to significant interpretation. Any error in counsels failing to object to the testimony was therefore harmless. Having found no error or no prejudice arising from counsels alleged failings, we see no cumulative prejudice. Accordingly, we need not address whether the performance of counsel was deficient.

DISPOSITION

The judgment is affirmed.

_________________________________

Kane, J.

WE CONCUR:

__________________________________

Harris, Acting P.J.

__________________________________

Wiseman, J.

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^[1] All statutory references are to the Penal Code unless otherwise noted.

^[2] Section 4573.6 and 4573.9 are part of a series of statutes, which are to be construed together and which demonstrate that the Legislature chose to take a prophylactic approach to the ultimate evil [of] drug use by prisoners by attacking the very presence of drugs and drug paraphernalia in prisons and jails. [Citation.] [Citations.] (People v. Lee (2006) 136 Cal.App.4th 522, 536.) Section 4573.6 provides, as pertinent here: Any person who knowingly has in his or her possession in any state prison, any controlled substances, without being authorized to so possess the same , is guilty of a felony . Section 4573.9 provides, in pertinent part: Notwithstanding any other provision of law, any person, other than a person held in custody, who furnishes to any person held in custody in any state prison any controlled substance, if the recipient is not authorized to possess the same , is guilty of a felony .

^[3] Apparently, these restrictions were not all enforced.

^[4] Although Portillo testified to what he saw as the prosecution played the recordings, we take our summary of the activities captured by the surveillance cameras (in this and the two following paragraphs) directly from our independent viewing of the recordings.

^[5] The trial court impliedly qualified Peters as an expert when the prosecutor explicitly tendered Peters as an expert and the trial court permitted the prosecutor to ask questions of Peters, stating it would rule on particular questions.

^[6] Since we find no error in the admission of Peterss testimony, we see no ineffective assistance in defense counsels decision not to object to the testimony. (People v. Cudjo (1993) 6 Cal.4th 585, 616 [no duty of counsel to interject a meritless objection].)

^[7] In addition, the party offering the recording must provide a transcript of the recording to the court and opposing party. (Cal. Rules of Court, rule 2.1040 (formerly rule 243.9).)

^[8] Later, during cross-examination, Peters testified that he had listened to the call six or seven times over the course of about two and one-half hours. As he did, he corrected any errors he found in the original transcript he received from the district attorneys office. He said he tried to achieve word-for-word accuracy, but he refused to insert words where the recording was inaudible and he was unsure what was said.

^[9] As the record discloses no basis for concluding that an objection had a reasonable probability of prevailing, counsel cannot be deemed ineffective. (People v. Cudjo, supra, 6 Cal.4th at p. 616.)