Filed 6/27/17 P. v. Lopez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

ALFRED LOPEZ,

Defendant and Appellant.
H042682
(Santa Clara County
Super. Ct. No. F1554956)

Defendant Alfred Lopez appeals from a judgment entered after a jury found him guilty of possession of a concealed dirk or dagger (Pen. Code, § 21310 – count one), destroying or concealing evidence (§ 135 – count two), resisting an officer (§ 148, subd. (a)(1) – count three), and possession of drug paraphernalia (Health & Saf. Code, § 11364 – count four). The jury also found that defendant had served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to four years in county jail, which was comprised of a two-year term for dagger possession and two consecutive one-year enhancements for his prison priors. On appeal, defendant raises issues regarding the sufficiency of the evidence, jury instructions, ineffective assistance of counsel, and modification of the minute order and the abstract of judgment. We modify defendant’s conviction on count two to attempted destruction or concealment of evidence (§§ 664/135). The minute order and the abstract of judgment must also be modified to reflect that defendant does not owe a parole revocation restitution fine. As modified, the judgment is affirmed.

I. Statement of Facts
On April 5, 2015, Officer Andrew Lopez was on patrol in his marked police car when he saw defendant using a large knife to remove something from a dumpster. Officer Lopez recognized defendant from prior police contacts and knew that there were two outstanding warrants for his arrest. Officer Lopez exited his vehicle and told defendant to drop his knife, which he did. After the officer asked defendant to walk towards him, defendant fled on foot. As defendant ran, the officer saw him reach into his waistband, take something out, and throw it to the ground. The object made a made a “shattering sound.” Defendant eventually stumbled, fell, and tossed a black object into the bushes. The officer was unable to recover the object. Officer Lopez put handcuffs on defendant. He also conducted a patdown search, but he did not check all of defendant’s pockets. Defendant told Officer Lopez that he had thrown away a knife and a glass pipe during the chase.
Officer Julio Romero responded to the scene. When he arrived, defendant was lying on his stomach and had been handcuffed. Prior to placing defendant in the patrol car, Officer Romero searched him. The officer reached into the pocket of defendant’s pants and found a folding knife in a sheath. The knife blade was four to five inches in length.
Meanwhile, Officer Lopez returned to the location where defendant had thrown the glass object. The officer recognized the object as a pipe used to inhale narcotics or drugs. The bulb portion of the pipe had shattered and there was a white substance inside the glass. The officer could determine that this pipe was used for methamphetamine rather than another controlled substance by “[l]ooking at the pieces, putting it together, it appears to be the bulb” for methamphetamine. A photograph of the methamphetamine pipe was introduced into evidence. Officer Lopez also found defendant’s backpack, jacket, and bike near the dumpster. There were additional methamphetamine pipes in defendant’s backpack and the jacket.

II. Discussion
A. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence that he destroyed or concealed evidence (count two).
“Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
Section 135 provides in relevant part: “Every person who, knowing that any . . . thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.” (Italics added.)
Defendant contends that section 135 is not violated unless a defendant has destroyed or hidden the evidence to the extent that it can no longer be used at trial. The Attorney General contends that defendant was successful in preventing the prosecution from admitting into evidence the glass pipe that he shattered during the chase, and thus violated section 135.
People v. Hill (1997) 58 Cal.App.4th 1078 (Hill) is instructive. In Hill, a police officer was pursuing the defendant when she saw him throw a wad of paper out onto the street. (Id. at p. 1082.) After he was arrested, the police recovered the wad of paper, which consisted of torn pieces of traveler’s checks. (Ibid.) The defendant was charged with forging checks and concealing or destroying evidence. (Id. at p. 1080.) On appeal, the defendant challenged the sufficiency of the evidence to support his conviction under section 135. (Hill, at p. 1088.) In interpreting this statute, the Hill court stated: “The purpose of section 135 is to prevent the obstruction of justice. [Citation.] The plain meaning of ‘destroy’ is to ruin something completely and thereby render it beyond restoration or use. [Citation.] Under this definition, if one destroys evidence, it necessarily becomes unavailable and cannot be produced. Conversely, if, despite one’s efforts, the evidence is or can be restored and used, then, by definition, it has not been destroyed; rather, such efforts constitute an attempt: a direct, but ineffectual, act toward the commission of a crime. [Citations.] [¶] Since the common meaning of ‘destroy’ is reasonable and applying it is consistent with and promotes the purpose of the statute, we decline to give it a broader or narrower construction. Moreover, the plain meaning does not lead to absurd or unintended consequences. Together, the statute and the proscription against attempts (§ 664) reach any and every direct act taken to destroy evidence committed with the requisite intent, regardless of whether the acts succeed. This construction also maintains a clear line between committing and attempting to commit the offense by acts of destruction.” (Id. at p. 1089.) Thus, this court concluded that there was insufficient evidence to support the conviction under section 135 and reversed.
Here, defendant threw the methamphetamine pipe as the officer was chasing him. However, he did not ruin it completely or render it beyond use. Though the bulb portion of the pipe had shattered, Officer Lopez could identify the object as a methamphetamine pipe rather than a pipe for another controlled substance by “[l]ooking at the pieces” and “putting it together.” A photograph of the methamphetamine pipe was introduced into evidence. Thus, there was insufficient evidence to support the conviction for destroying or concealing evidence.
After finding that the error in Hill required reversal, this court did not consider the trial court’s failure to sua sponte instruct the jury on the offense of attempted destruction or concealment of evidence. (Hill, supra, 58 Cal.App.4th at pp. 1091-1092.) This result allowed the prosecution to either retry the defendant for attempted destruction or concealment of evidence, which was a waste of judicial resources, or, in the event that the prosecution declined to retry a misdemeanor, relieved the defendant of liability for conduct which was established by the evidence. In order to conserve scarce judicial resources, we will consider defendant’s claim of instructional error.
The trial court has a sua sponte duty to instruct the jury as to a lesser included offense, but only when the evidence establishes the offense committed is less than that which was charged. (People v. Holt (1997) 15 Cal.4th 619, 673-674.) An attempt is a direct but ineffectual act toward the completion of the target crime. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1381.) Here, defendant’s throwing of the pipe was an attempt to destroy it.
In the context of a noncapital case, the failure to instruct on a lesser included offense is an error of California law, which we review under the test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 165, abrogated on another ground by statute.) Based on the record before us, it is reasonably probable that the jury would have found defendant guilty of the lesser, but not the greater, offense if it had been instructed on attempted destruction or concealment of evidence. Accordingly, we shall reduce defendant’s conviction on count two to attempted destruction or concealment of evidence. (§§ 664/135).

B. Ineffective Assistance of Counsel
Defendant also contends that he was deprived of the effective assistance of counsel, because counsel failed to object to the prosecutor’s misstatement of law during closing argument.
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume 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.” [Citation.] If the record “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 unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
During her rebuttal closing argument, the prosecutor agreed with defense counsel’s statements regarding the burden of proof. She then stated: “You have to feel an abiding conviction. What that means is do you have any reasonable doubt? Reasonable doubt as to what happened? That’s really the question.” She later stated: “My burden is to prove the charges beyond a reasonable doubt, not beyond all possible doubt, not beyond any imaginary doubt. Because as the instruction said, everything in life is open to some possible or imaginary doubt. I don’t have to eliminate that, nor could I. This is not Mount Everest. It’s a very high standard. It is the highest standard in the legal system, but it’s not Mount Everest. [¶] People are convicted in courtrooms across the country every day of charges where there’s no video evidence, when they’re only relying on testimony. It happens every day. It is not Mount Everest. The charges in this case have been proven. [¶] Reasonable doubt is more than just a hesitation. Everybody has hesitations. It’s a big decision. . . . You’re going to have hesitation. Hesitation doesn’t mean doubt. You look at the evidence to see whether there’s doubt and whether that doubt is reasonable.” (Italics added.) Defendant contends that the italicized portions of the prosecutor’s argument trivialized the burden of proof, and thus there could not have been a satisfactory explanation for defense counsel’s failure to object.
The Attorney General contends that the reference to “Mount Everest” was not prosecutorial error. She points out that the prosecutor “immediately preceded and succeeded the analogy by acknowledging her burden of proof and correctly describing reasonable doubt as ‘a very high standard’ and ‘the highest standard in the legal system.’ In context, her reference to ‘Mount Everest’ to explain that the standard was very high but not insurmountable did not warrant an objection by defense counsel.” Defendant responds that “the prosecutor specifically told the jury that the burden of proof was not Mount Everest, making it unclear exactly what she was trying to convey to the jurors – that the standard is not even ‘very high’?” In our view, defendant’s interpretation does not acknowledge the context in which the reference was made and the Attorney General’s interpretation is more reasonable. Thus, defense counsel’s failure to object to the reference to “Mount Everest” fell within the range of professional competence.
Defendant also contends that defense counsel rendered ineffective assistance when she failed to object to the prosecutor’s statement that “ ‘reasonable doubt is more than just a hesitation . . . you’re going to have hesitation. Hesitation doesn’t mean doubt.’ ” He claims that “hesitation” could be indicative of reasonable doubt and it was “misconduct for the prosecutor to tell the jury to ignore hesitations it might have about finding [him] guilty.” We disagree. When taken in context, the prosecutor did not tell jurors to ignore any hesitation in their consideration of the case. Accordingly, defense counsel’s performance was not deficient.
Relying on Taylor v. Kentucky (1978) 436 U.S. 478 (Taylor), defendant contends that defense counsel’s performance fell below the requisite standard when she failed to object to the prosecutor’s comment that “ ‘[p]eople are convicted in courtrooms across the country every day of charges where there’s no video evidence, when they’re only relying on testimony.’ ” We agree.
In Taylor, supra, 436 U.S. 478, the defendant argued that the trial court’s refusal of his request for instructions on the presumption of innocence deprived him of a fair trial. (Id. at p. 486.) The United States Supreme Court noted that the prosecutor described the reasonable doubt standard by stating that defendant, “ ‘like every other defendant who’s ever been tried who’s in the penitentiary or in the reformatory today, has this presumption of innocence until proved guilty beyond a reasonable doubt.’ [Citation.] This statement linked petitioner to every defendant who turned out to be guilty and was sentenced to imprisonment.” (Id. at pp. 486-487.) The Taylor court reversed the judgment based on “the combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner’s status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial.” (Id. at pp. 487-488, 490.)
Here, as in Taylor, the prosecutor improperly linked the defendant to other defendants who had been found guilty and invited the jury to consider his status as a defendant in reaching its verdict. However, defendant suffered no prejudice because of defense counsel’s failure to object to this comment. The evidence against defendant was extremely strong. Moreover, the trial court properly instructed the jury on the presumption of innocence and on the reasonable doubt standard. The trial court also instructed the jury that, “If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” “ ‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 441.) Given the strength of the prosecution’s case and the trial court’s proper instructions to the jury, defendant has failed to demonstrate “ ‘a “reasonably probability that, but for counsel’s unprofessional error[], the result of the proceeding would have been different.” [Citation.]’ ” (Lopez, supra, 42 Cal.4th at p. 966.)

C. Parole Revocation Fine
Defendant argues, and the Attorney General concedes, that the parole revocation restitution fine of $1,200 as reflected in the minute order and the abstract of judgment, must be stricken.
At the sentencing hearing, the trial court imposed a restitution fine of $1,200 pursuant to section 1202.4, subdivision (b)(2). It did not impose a parole revocation restitution fine pursuant to section 1202.45, because “there [would] be no further supervision” upon defendant’s release from county jail. When the trial court does not impose a term of supervised release, a parole revocation fine is not authorized. (People v. McWhorter (2009) 47 Cal.4th 318, 380.) We shall therefore order the fine stricken.

III. Disposition
Defendant’s conviction on count two for destroying or concealing evidence is modified to attempted destruction or concealment of evidence (§§ 664/135). In addition, we strike the parole revocation restitution fine under section 1202.45 in the minute order and the abstract of judgment. As modified, the judgment is affirmed.





 





_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.












People v. Lopez
H042682