P. v. >Lyons>

 

 

 

 

 

 

 

 

 

 

Filed 11/19/13  P. v. Lyons CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Yolo)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   BART LORAN LYONS,                           Defendant and Appellant.

C069222   (Super. Ct. No. CR-F-10-4307)

 

 

 

Defendant Bart Loran Lyons contends
the prosecutor in his trial for possessing a controlled substance for sale and
other drug offenses committed misconduct
when, during cross-examination, he asked defendant’s expert witness about defendant’s
prior arrests and convictions for possession and transportation for sale.  Defendant admits his counsel did not object.  Having forfeited a direct challenge to this
issue, defendant claims he suffered ineffective
assistance of counsel.  We disagree,
and, except to order the abstract of judgment amended to record the correct amount
of presentence credit, we affirm the judgment.

FACTS
AND PROCEDURAL HISTORY

A jury convicted defendant of
transportation of a controlled substance (Health & Saf. Code, § 11379,
subd. (a)), possession of a controlled
substance for sale (Health & Saf. Code, § 11378), and possession of
controlled substance paraphernalia (Health & Saf. Code, § 11364), on the
following facts:

Police officers searching
defendant’s vehicle following a traffic stop found two bags of narcotics, one
under the driver’s side floor mat and the other in the console between the two
front seats.  They found four hypodermic
syringes and a “glass narcotic smoking pipe” in the trunk, and a second pipe
near the center console.  They found no
scales or pay-owe sheets. 

At the scene, defendant said he
thought he had three bags of methamphetamine. 
He said he could not go back to jail, and that “there must be something
he could do to help us.”  At the police
department, defendant said the drugs were “extremely good, extremely pure”
narcotics. 

In the booking room, officers found
a third bag of narcotics on the floor next to defendant.  Defendant said it had fallen out of his
pants.  He had considered smuggling it
into jail and “making money off of it,” but he decided to tell the police about
it instead. 

The three bags contained a total of
11.87 grams of a substance containing methamphetamine, divided in amounts of
9.08 grams, 2.45 grams, and 0.34 grams. 

At trial, the principal contested issue
was whether defendant possessed the drugs for sale.  Yolo County Sheriff’s Deputy Gary Hallenbeck
testified as an expert for the prosecution. 
He said one-tenth of a gram of methamphetamine was an average dose or
common dosing unit.  In his opinion, a
person who possessed 12 grams of methamphetamine, or roughly one-half ounce,
divided into three bags of different amounts, who bragged about the drug’s
quality, and who stated his intention of selling some of it in jail, was a
person who possessed the drug with the intent to sell.  He held the same opinion even if the person
who possessed the methamphetamine was an addict and the police found no
scales. 

Dr. Donald Siggins, a licensed
psychotherapist, testified as an expert witness for the defense.  He disagreed with Deputy Hallenbeck that the
possession of 12 grams of methamphetamine indicated the person intended to
sell.  He believed 12 grams could be
possessed for personal use.  He has
clients who use four or five grams of methamphetamine a day.  In his opinion, the more a person tolerates a
drug, the more that person is addicted.  He
believed defendant had a severe long-term addiction to methamphetamine, and
that he was the type of addict who could easily use 12.5 grams for his personal
use. 

The trial court sentenced defendant
to 12 years in state prison, calculated as follows:  the upper term of four years on the
transportation conviction, plus an additional three years each for two
enhancements for prior felony drug convictions (Health & Saf. Code, §
11370.2, subd. (c)), plus one year each for two enhancements for prior prison
terms (Pen. Code, § 667.5, subd. (b)). 
The court stayed imposition of a three-year prison sentence on the
possession for sale conviction, and it imposed a concurrent 180-day jail term on
the drug paraphernalia conviction. 

DISCUSSION

I

Ineffective Assistance of Counsel

On cross-examination, the
prosecutor asked Dr. Siggins whether he had spoken with defendant about a prior
arrest for possession for sale and a prior conviction in that case for
transportation for sale.  Defendant
claims the prosecutor committed misconduct by his questioning.  Defense counsel did not object to the
questions, but defendant asserts we may still hear the issue because an
admonition by the court could not have cured the alleged error.  Alternatively, he claims counsel rendered
ineffective assistance by failing to object. 
We conclude defendant has forfeited a direct challenge on this issue,
and there is no showing an admonition would not have cured any error.  We thus address the claim of ineffective
assistance, and we reject it.

A.        >Additional background information

Before trial, defendant moved to
exclude “any mention of any prior uncharged acts and/or arrests” incurred by
him.  Hearing this motion, the trial court
asked the prosecutor if there were any uncharged acts or arrests “that’s
anticipated.”  The prosecutor knew of
none.  With that understanding, the trial
court granted defendant’s motion but reserved jurisdiction to reconsider it.  The court said it did not “know to what extent
-- obviously if you [defense counsel] bring anything up . . . or your
expert does, obviously that might be fair game. 
We will see how that goes.” 

In an Evidence Code section 402
hearing, Dr. Siggins testified defendant was a long-term drug addict, and thus
the amount of methamphetamine he possessed did not, by itself, determine
whether he possessed it for sale.  The
prosecutor, exploring the basis for that opinion, asked Dr. Siggins whether he
had reviewed defendant’s record.  This
dialogue then occurred:

“A        I
reviewed [defendant’s] record through interviewing [defendant] to the degree
that he had been charged with drug offenses in the past and that he had many
attempts at rehabilitation.

“Q        Did
you talk to him about -- so did he tell you that he had been arrested for
possession for sale before?

“A        Yes,
sir.

“Q        Did
he tell you when he had been arrested for possession for sale?

“A        I
don’t’ recall exactly the date that he mentioned.

“Q        The
fact that he has been arrested for possession for sale before didn’t clue you
in that this might be somebody who sells drugs? 
[¶]  . . .  [¶]

“[A]     It was certainly -- it was certainly a part of the evidence that
I looked at, but I wasn’t, you know, hired to ascertain if he had possessed an
amount for sales, you know, in that case. 
[¶]  What I was looking at was
very specifically whether or not the amount of drugs that he was holding was
indicative of a pattern or a holding for sales in this instant case.” 

At trial, Dr. Siggins testified as
an expert as summarized above.  On
cross-examination, the prosecutor asked Dr. Siggins if he had spoken with
defendant about why he was arrested in this case.  Dr. Siggins had spoken with him about that,
as well as his drug abuse history.  This
dialogue followed:

“Q        Okay.  And talking to him about his drug abuse
history, you talked to him about the fact that he’s been arrested for drugs
before; correct?

“A        Yes,
sir.

“Q        You
talked about how he has been arrested for possession for sale of
methamphetamine before; correct?

“A        Yes,
sir.

“Q        And
how he was convicted in that case of transportation for sale; correct?

“A        Yes,
sir.” 

Defense counsel did not object to
this testimony.

A few minutes later, the prosecutor
summarized Dr. Siggins’s testimony:

“Q        It
is your testimony today that based on your interview with [defendant], that
twelve grams, in and of itself, is not enough to say that it is possessed for
sale?

“A        That’s
correct.” 

B.        >Analysis

A defendant who fails to object to
prosecutorial misconduct at trial and request a jury admonition forfeits the
claim of error on appeal.  (>People v. Stanley (2006) 39 Cal.4th 913,
952.)  Defendant admits his attorney did
not object to the questioning or seek an admonition, but he asserts we may
still consider the issue because no jury admonition would have cured the harm caused
by the alleged error.  (>People v. Dykes (2009) 46 Cal.4th 731,
760.)  We disagree.

There is no evidence this trial was
so poisoned with misconduct or mismanagement that a jury could not have
responded to an admonition to disregard the prosecutor’s questions and Dr.
Siggins’s answers.  (See >People v. Hill (1998) 17 Cal.4th 800,
820-822 [prosecutor’s misconduct and trial court’s errors rendered objections
futile].)  Even defendant admits that an
admonition “would have largely ameliorated the prosecutor’s misconduct and
further demonstrated that the prosecutor’s implied representations concerning [defendant’s]
criminal history were not trustworthy.”  Because
defense counsel did not object or seek an admonition, and because an admonition
would have cured any alleged harm, defendant has forfeited this ground of
appeal.

We thus address defendant’s
contention that his trial counsel rendered ineffective assistance by failing to
object to the prosecutor’s questioning.  “To
establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell
below an objective standard of reasonableness under prevailing professional
norms; and (2) counsel’s representation subjected the defendant to prejudice,
i.e., there is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the defendant.  [Citations.]” 
(People v. Samayoa (1997) 15
Cal.4th 795, 845.)

Defendant has failed to show counsel
rendered ineffective assistance.  He has
not shown counsel’s representation was deficient.  Any objection by counsel to the prosecutor’s
questioning would have been meritless, and “failure to make a meritless
objection does not constitute deficient performance.”  (People
v. Mitcham (1992) 1 Cal.4th 1027, 1080.) 
An expert witness may be “fully” cross-examined on “the matter upon
which his or her opinion is based and the reasons for his or her opinion.”  (Evid. Code, § 721, subd. (a).)  So long as the material the expert reviewed
and that forms a basis of his opinion is reliable, “even matter that is
ordinarily inadmissible can form the
proper basis for an expert’s opinion testimony. 
[Citations.]”  (>People v. Gardeley (1996) 14 Cal.4th
605, 618, original italics.) 

If an expert examines a defendant’s
prior record of misconduct, “he could be cross-examined on it, without
offending any constitutional guaranty, to determine whether he took it into
account in forming an opinion . . . .”  (People
v. Osband (1996) 13 Cal.4th 622, 712 [cross-examination of expert based on
his review of defendant’s juvenile record permitted].) 

Dr. Siggins testified he reviewed
defendant’s prior drug abuse history, including his arrest and conviction history.  The prosecutor was thus free to ask Dr. Siggins
whether he took these items into account in forming his opinion.  No ineffective representation occurred,
because an objection to the prosecutor’s questions would have been without
merit.

Whether the prosecutor misstated
defendant’s criminal history by stating his arrest for possession for sale
resulted in a conviction of transportation for sale is not clear.  According to the probation report, defendant
has not been previously convicted of transportation for sale under Health and
Safety Code section 11379, subdivision (b), but he has been convicted twice for
transporting, importing or selling under Health and Safety Code section 11379,
subdivision (a).  Defendant was sentenced
to state prison for each of those convictions. 
Had defendant on those occasions transported for his personal use, he
could not have been incarcerated.  (Pen.
Code, §§ 1210, subd. (a), 1210.1, subd. (a).) 
He thus may have been convicted for a drug offense that involved
transporting and selling.  Defendant has
not shown the prosecutor misstated the truth or that his counsel should have
objected to the prosecutor’s questions.  As
a result, counsel’s failure to object was not deficient representation.

Defendant has also failed to show
he was prejudiced by the prosecutor’s questions.  It is not reasonably probable defendant would
have obtained a more favorable result had the prosecutor not asked the
questions or had defense counsel objected and sought an admonition.  There was no doubt defendant was guilty of
transporting a controlled substance and possessing drug paraphernalia, and the
evidence showing he possessed a controlled substance for sale was very
strong.  Defendant possessed three
separate bags of methamphetamine weighing nearly 12 grams.  Only one-tenth of a gram is a common useable
amount; defendant thus possessed the equivalent of 120 doses.  He bragged to officers about the drugs’
purity and quality.  He said he had
considered smuggling some of the drugs into jail so he could sell them
there.  This was more than sufficient
evidence to support defendant’s conviction of possession for sale, and an
objection to the prosecutor’s questions would not have disturbed the import of
this evidence and resulted in a more favorable outcome.  Indeed, the jury heard Dr. Siggins testify
that, in his expert opinion, defendant’s possessing 12 grams was insufficient
to constitute possession for sale.  A
sustained objection to the prosecutor’s questions would not have changed the
jury’s verdict.  Defendant did not suffer
ineffective assistance.

II

Abstract of Judgment

The abstract of judgment states the
trial court awarded defendant a total of 288 days of credit for time served;
144 days of custody credit and 144 days of conduct credit.  After the abstract was filed, however, the
trial court recalculated the presentence credit, and it awarded defendant 326
days of custody credit and 326 days of conduct credit.  We order an amended abstract of judgment be
filed that reflects the correct award.  The
trial court’s order mistakenly states this totals 752 days.  We rely on the court’s awards of specific
credit, and order defendant be awarded 652 days of presentence credit.

DISPOSITION

The trial court clerk is ordered to
prepare an amended abstract of judgment awarding defendant 326 days of custody
credit, and 326 days of conduct credit, for a total

of 652 days of presentence
credit, and to forward the amended abstract to the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation.  In all other respects, the judgment is
affirmed.

 

 

 

                                                                                              NICHOLSON              , Acting P. J.

 

 

 

We concur:

 

 

 

          ROBIE                          , J.

 

 

 

          MURRAY                    , J.