P. v. Shum

Filed 7/31/07 P. v. Shum 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Michael Shum was convicted after jury trial of possession of methamphetamine for sale (Health & Saf. Code, 11378).[1] He admitted having three prior possession-for-sale convictions ( 11370.2, subd. (c)), and having served a prior prison term (Pen. Code, 667.5, subd. (b)). The trial court sentenced defendant to 11 years in state prison.

On appeal, defendant contends that: (1) the trial court prejudicially erred by failing to instruct the jury sua sponte on the lesser-included offense of simple possession; (2) the court prejudicially erred by failing to enforce defense counsels offered stipulation; (3) the court prejudicially erred while instructing the jury on the corpus delicti rule; (4) counsel rendered ineffective assistance by failing to object to gang evidence and by failing to request that the evidence be stricken; (5) counsel rendered ineffective assistance by failing to object to evidence of defendants misdemeanor conviction for spousal battery; and (6) there was prejudicial cumulative error. We disagree with these contentions and, therefore, affirm the judgment.

BACKGROUND

Defendant and Melanie Guadagni[2] were charged by information with possession of methamphetamine for sale ( 11378). The information further alleged that defendant had three prior possession-for-sale convictions ( 11370.2, subd. (c)), and that he had served a prior prison term (Pen. Code, 667.5, subd. (b)).

The Prosecutions Case

The Current Offense

On April 5, 2005, Melanie was living with her mother Donna Guadagni, her father, and her brother in Santa Clara. Melanie was unemployed and did not have a drivers license. Defendant, who was Melanies boyfriend, had been staying with Melanie three or four nights a week for about one month. Defendant and Melanie stayed in the living room, the room entered through the homes front door. The living room had a coat closet and a pocket door to the hallway that could be locked for privacy. Defendant kept some of his clothes in the closet.

Santa Clara Police Detective Greg Hill, who testified as an expert in the recognition of methamphetamine and whether methamphetamine is possessed for sale, knew both defendant and Melanie prior to April 6, 2005. Hill had assisted other officers when defendant was arrested in 2004 for absconding from parole. Defendant was living with Yvonne Landeros and their child at that time, and ran from the officers who came to arrest him. Hill found no drugs at defendants home, but found a surveillance system there and a couple hundred dollars in a Diaper Genie. When defendant was paroled again in February 2005, he was released to his parents Santa Clara address.

While working undercover on March 11, 2005, Detective Hill drove to Melanies home around 3:30 p.m., parked down the street from the home, and watched it for about one-half hour. He saw a red Honda Prelude parked in front of the home that was registered to defendant, and he confirmed that defendant was still on parole for selling drugs. Detective Hill also saw defendant walk out the front door of the home and into the front yard while talking on a portable phone and looking up and down the street. Defendant stayed outside for 10 or 15 minutes, after which the phone conversation ended and defendant walked back inside the home without knocking on the closed front door. Detective Hill did not see Melanie or anybody else at the home.

Detective Hill drove by defendants parents home around 5:00 p.m. on March 11, 2005. Defendants car was not there. Detective Hill drove by the home two other times in the following three weeks, and never saw defendant, his car, or Landeross car at the home.

On March 31, 2005, Detective Hill drove back to Melanies home around 3:00 p.m. and parked down the street for at least one and one-half hours. He saw defendants car as well as a car registered to Landeros parked in front of the home. He did not see defendant or Melanie, but he did see two or three cars drive up, and the occupants go up to the front door, stay for two to three minutes, and then drive away. Detective Hill did not recognize these people but based on his training and experience he believed that drug sales were possibly occurring.

On April 1, 2005, Detective Hill drove back to Melanies home around 3:00 p.m. and watched it for two to three hours. He did not see defendant or Melanie, but defendants car and Landeross car were parked out in front of the home the entire time. People in three different cars came to the home and left after short intervals as on the day before. Other officers stopped one of the cars for an expired registration violation shortly after it left the home, and Detective Hill learned that the driver, Rudy Claymore, had a drug conviction and was on parole for burglary.

On April 5, 2005, Detective Hill drove back to Melanies home around 6:00 p.m. and again saw defendants car and Landeross car parked in front of the home. Because Detective Hill also saw defendant standing in the front doorway watching cars pass by, he drove by the home and returned to the station in order to get additional officers to help him do a parole search. He returned to the home with several other officers around 8:00 p.m. Defendants car was still there but Landeross car was gone.

When the officers approached the front door of the home, Detective Hill looked through the living room window and saw Nicole Wright, Melanies cousin, in the room watching television.[3] He knocked on the front door, announced their presence, and asked that the door be opened for a parole search. Wright stayed where she was and stared at the door. Detective Hill opened the unlocked front door and the officers went inside. They detained Wright, Guadagni, and Melanies brother in the kitchen. Wright appeared nervous but did not appear to be under the influence of a controlled substance. Neither defendant nor Melanie were there.

Detective Hill explained to Guadagni that the officers wanted to conduct a parole search of the areas to which defendant had access. Guadagni said that defendant was using the living room and that he also had access to the kitchen and bathroom. The officers searched only the living room. In the bottom of a trash can, under some trash, they found a Pledge furniture polish can with a false bottom and a hollow interior. Inside the can they found a plastic baggie containing 6.1 grams of methamphetamine, a plastic twist containing .74 grams of methamphetamine, a wad of toilet paper, and a larger baggie containing 13.1 grams of methamphetamine.[4] The officers found other plastic baggies in the trash can that could be used to package drugs, and $2,400[5] in cash in defendants clothing in the closet, but did not find any drug paraphernalia, pay-owe sheets, or scales. The officers also found a digital camera containing several pictures of defendant on the coffee table, and defendants parole forms and paperwork for his car insurance in a backpack in the closet.

Guadagni was surprised when the police arrived at her home on April 5, 2005, and she was surprised that they found drugs in the home. Besides defendant and Melanie, Guadagni had seen only Melanies friends in the living room during the prior month, she had never seen Melanie use drugs, and she had never seen the Pledge can the police showed her.

The following day, April 6, 2005, Detective Hill received three phone messages from Melanie. When he called her back, Melanie said that defendant did not live at her house; he lived with his parents. She said that she had bought one-half ounce of methamphetamine for her personal use and had paid $450 for it. She also said that the $2,400 belonged to defendant. Detective Hill thought that Melanie should have paid only $350 for one-half ounce of methamphetamine, and asked Melanie to come to the police department to make a full statement. Melanie arrived at the police station with Guadagni around 8:30 p.m. that night.

After waiving her Miranda[6] rights, Melanie told Detective Hill that she had known defendant for over a year and that he had been her boyfriend since he got out of prison on February 13, 2005. Defendant spent half his time staying with her and the other half staying with his parents. He kept some clothes at her house and she kept some clothes at his house. He stayed the night of April 4, 2005, with her and the $2,400 belonged to him. She bought one-half ounce of methamphetamine from a friend for her personal use over a month and a half, and all she had left was what was in the small plastic baggie and the plastic twist. She said that she had used some of the methamphetamine on April 5, 2005.

When Detective Hill told Melanie that there was a separate baggie with another one-half ounce of methamphetamine in the Pledge can, Melanie denied knowing about it, had no explanation for where it came from, and continued to talk about the methamphetamine as though the separate baggie did not exist. She insisted that the methamphetamine was possessed for her personal use even though Detective Hill said that he thought it was possessed for sale. Since Melanie insisted that she wanted to take the blame for possessing the methamphetamine, Detective Hill asked her if she wanted to call defendant to tell him that he could pick up his $2,400.

Defendant had $228 on him when he was arrested on April 7, 2005, at his parole agents office.

In Detective Hills opinion, the approximate street value of all the methamphetamine that was found in the Pledge can was around $650 to $700 on April 5, 2005. Because the methamphetamine was separated into three baggies in quantities that would commonly be sold on the street, it was not possessed for personal use. Rather, based on the amount of methamphetamine and cash the officers found in the room and on defendant, what Detective Hill had seen during his surveillance of the residence, and the fact that defendant was on parole for drug sales, in Detective Hills opinion the methamphetamine was possessed for sale.

Prior offenses[7]

On November 28, 2000, San Jose Police Lieutenant Keith Miller searched an apartment where defendant lived with his then girlfriend. Miller found a quantity of methamphetamine, an electronic scale, and two pipes concealed in a couch; $580 in cash; and some identification belonging to another individual. The methamphetamine comprised 10 separately packaged bags containing between one-quarter and one gram, plus a small bottle containing two to three grams. A methamphetamine user typically smokes .1 grams of methamphetamine at a time. When defendant saw his girlfriend being arrested, defendant said that he was the one who was dealing the drugs. Defendant was arrested for and convicted of possession of methamphetamine for sale.

Around 8:00 a.m. on April 10, 1998, Mountain View Police Officer Sean Thompson went with another officer to an apartment where they arrested a 17-year-old female and defendant, who was then 20 years old, for possession of methamphetamine for sale. The parties stipulated that defendant was convicted of possession of methamphetamine for sale as a result of this arrest.

The Defense Case

Parole Agent Lisette Ruano became defendants parole agent in November 2004. Defendant was released from prison on February 13, 2005, and he reported to her office the next day. At that time, she told him that he was to reside with his parents in Santa Clara. Ruano visited defendants parents home two or three times before defendant was reincarcerated. Defendant was at his parents home during her first visit, which occurred about one week after his release. Defendant was not present during her second visit, but defendant was present when she visited the home in March 2005. Defendant was arrested at the parole office in April 2005 and turned over to the Santa Clara police. At the time, defendant had approximately $230 on him.

Ronald Fong, defendants stepfather, owns a glass contracting business. When defendant was paroled on February 13, 2005, Fong gave him $1,000 in cash so that he could update his insurance. Ruano came to their house at least three times, and went over the conditions of defendants parole with them. Fong told Ruano that defendant was working for him. Defendant began working for Fong on February 14, 2005, and worked about 38 hours each week he was on parole. Fong paid defendant $17 per hour under the table, and he gave defendant a finders fee of between $200 and $400 a few times. Fong does not have any record of how much money he paid defendant for working for him, but he thought he paid defendant roughly $2,000.

Defendant testified in his own behalf that he was first arrested at age 18 for auto burglary. He has a 1996 misdemeanor conviction for second degree burglary and possession of burglary tools. He has three felony convictions for possession of methamphetamine for sale; his first drug conviction in 1998 involved two cases and he has one conviction in 2000. He also has misdemeanor convictions for vandalism, domestic violence, and making criminal threats to his girlfriend in 2000. He was both using and dealing methamphetamine then. He was arrested for absconding from parole in 2004. He was with Landeros and took off running. He jumped over three fences before he was finally caught by Detective Hill and four other officers. The officers forced him to the ground, handcuffed him, and hit and kicked him. Detective Hill, who was clean shaven then, hit him a couple times. Following his arrest, he was convicted of misdemeanor identity theft because he had a fake ID.

Defendant was released on parole on February 13, 2005, to his parents home and he spent most of his time there. He started a relationship with Melanie, and spent a few nights with her at her home. He left his Honda and Landeross car there. He took Landeross car because she would not let him see their child, and he parked it at Melanies so that Landeros would not find it. Landeros never reported the car stolen.

Defendant worked for Fong, making $17 per hour. Fong paid him between $400 and $450 each week, plus $300 for bringing in each client, in cash. Fong also gave defendant $1000 when defendant got out of prison, and Fong paid defendants car insurance. The $2,400 that was found in the closet at Melanies home was defendants money.

Defendant did not use methamphetamine while he was on parole because he did not want to go back to prison. When he was at Melanies home and her friends came over to party, he would not stay around because he probably would use methamphetamine if he saw it. He was at Melanies home once when Claymore came over to see Melanie, but Claymore stayed only a few minutes before leaving.

Defendant complied with the terms and conditions of his parole. He did not know that there was methamphetamine at Melanies home on April 5, 2005, or that she was using methamphetamine, and the methamphetamine the police found at the home was not his. He had spent the previous night there, then went to work and went back to the home after getting off work around 2:00 or 3:00 p.m. He was still there at 6:00 p.m., but at 8:00 p.m. he was at his parents home eating dinner.

Melanie called him on April 6, 2005, while she was with Detective Hill, and he talked to her and the detective. He went to the parole office on April 7, 2005, and was arrested there.

The Prosecutions Rebuttal

Detective Hill has had either a full goatee or a beard since December 2002. He was not one of the officers who caught defendant during his arrest in 2004, he did not even see the arrest, and he has never beat or kicked defendant. He simply searched Landeross home after defendant was arrested.

Detective Hill had Melanie call defendant on April 6, 2005, and Melanie was present when he talked to defendant. Defendant said that he lived with his parents and that he occasionally stayed at Melanies home. Although defendant remembered when he last saw his parole agent, he could not remember when he last stayed overnight at Melanies home. When the detective asked defendant how much money he kept at Melanies home, defendant said that he had $1,200 there. The detective said that they had found more than that amount, but did not state the amount that was found. Defendant said that he had made the money by working for his stepfather. When the detective said that Melanie was going to jail for possession of methamphetamine for sale, defendants only concern was whether he could get his money back.

Detective Hill also spoke to Fong on the telephone. Fong said that defendant lived part of the time with him and part of the time with Melanie. Fong also said that he gave defendant between $800 and $1,000 when defendant got out of prison to help him get back on his feet, and that Fong had paid defendant $1,000 in the prior few weeks.

Findings on the Priors, Verdict, and Sentencing

During the trial, but outside the presence of the jury, defendant waived his right to a trial on the alleged priors and admitted that he had three prior possession-for-sale convictions ( 11370.2, subd. (c)), and that he had served a prior prison term (Pen. Code, 667.5, subd. (b)). On February 1, 2006, the jury found defendant guilty of possession of methamphetamine for sale ( 11378). On March 17, 2006, the trial court sentenced defendant to 11 years in state prison.

DISCUSSION

Instruction on the Lesser Included Offense

During a discussion concerning requested jury instructions, the prosecutor argued to the court that, based on the expert testimony, there was no evidence that the possession was for personal use. However, she believed that instructions on the lesser included offense of simple possession do need to come in. The court agreed with the prosecutor as regarding [Melanie] because there is evidence from her statement that the jury could find that it is a lesser. There was no discussion as to whether the instructions should also apply to defendant, and his counsel did not request that the instructions be given as to defendant. The court instructed the jury that it could decide that Melanie was guilty only of the lesser offense of simple possession, but the court did not instruct the jury that it could also decide that as to defendant. The jury found defendant guilty of possession for sale, but found Melanie guilty of simple possession.

Defendant now contends that the court had a sua sponte duty to instruct the jury that it could have decided that defendant was also guilty only of the lesser offense of simple possession. He argues that there was sufficient evidence to warrant such an instruction, and that the courts failure to give it was prejudicial error.

[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and] . . . an erroneous failure to instruct on a lesser included offense constitutes a denial of that right . . . . [Citations.] To protect this right and the broader interest of safeguarding the jurys function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. [Citations.] Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [Citation.] (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis).)

Simple possession of methamphetamine is a lesser included offense of possession of methamphetamine for sale. (See People v. Francis (1969) 71 Cal.2d 66, 73; People v. Saldana (1984) 157 Cal.App.3d 443, 456-457 (Saldana).) It is settled that the trial court need not, even if requested, instruct the jury on a lesser and included offense where the evidence establishes if the defendant was guilty at all, he [or she] was guilty of the higher offense. [Citations.] (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.) An instruction on the lesser offense of simple possession as to defendant was required in this case only if there was substantial evidence that defendant was guilty of possessing the methamphetamine without having the intent to sell it. We find that, in this case, there was not evidence sufficient to deserve consideration by the jury (Lewis, supra, 25 Cal.4th at p. 645) that defendant possessed the methamphetamine found in the Pledge can but not with the intent to sell it.

The prosecution presented evidence that officers found three separate packages of methamphetamine in the Pledge can: one containing .74 grams, one containing 6.1 grams, and one containing 13.1 grams, for a total of 19.94 grams. Melanie told Detective Hill that the .74 grams and the 6.1 grams were purchased by her for her personal use, but Melanie was unemployed, she denied knowing about the presence of the 13.1 grams, the police did not find any drug paraphernalia in the room defendant shared with Melanie, a methamphetamine user typically smokes only .1 grams of methamphetamine at a time, and Melanie should have paid much less for the methamphetamine than she said she paid. Defendant testified that he did not use methamphetamine while he was on parole. Detective Hill saw activity at Melanies residence consistent with drug sales, defendant admitted that he had three prior convictions for possession of methamphetamine for sale, the $2,400 the police found in the same room as the methamphetamine was defendants, and $2,400 could buy one-quarter pound of methamphetamine. Detective Hill testified as an expert that, in his opinion, the amount of the methamphetamine found, and the manner in which it was packaged, as well as the amount of cash found and the activity that he saw that was consistent with drug sales, indicated that the methamphetamine was possessed for sale. On this record, we cannot say that there was substantial evidence that a reasonable jury could determine that defendant possessed the methamphetamine but not with the intent to sell it.

Saldana, supra, 157 Cal.App.3d 443, cited by defendant, is distinguishable. In that case, the defendant, who was lying on one of two beds in a bedroom when an officer entered the room, quickly placed his bare hand into the headboard of the bed. The officer removed the defendants hand and found 18 balloons of heroin in the headboard. It was later determined that the defendant shared the room with his mother, and that the bed with the headboard where the heroin was found belonged his mother. (Id. at p. 450.) The defendants brother, a known user and seller of heroin, was found in the basement of the same home, and was determined to have 135 puncture wounds on his arms and to be under the influence of heroin. (Id. at p. 451.) Although the defendant denied all possession of the heroin found in the headboard, there was direct evidence of defendants possession of it while the prosecutions evidence was purely circumstantial that the defendant was a nonuser of the drug. (Id. at pp. 456-457.) The appellate court held that, where there is direct evidence of simple possession, but an absence of direct evidence that the defendant possessed the drugs for sale, the court must instruct the jury on both simple possession and possession for sale. (Id. at p. 456.) In this case, there was no direct evidence that defendant possessed the methamphetamine found by the police in a room he shared with Melanie and, not only did defendant deny all possession of the methamphetamine, defendant also denied that he used methamphetamine while Melanie admitted that she did. Thus, there was not substantial evidence that defendant possessed the methamphetamine for his personal use and not with the intent to sell it.

Offered Stipulation

Prior to trial, the prosecution sought to admit under Evidence Code section 1101, subdivision (b), evidence of defendants three prior possession-for-sale convictions on the issue of defendants intent to sell. Defendant objected, arguing that any prior coming in is prejudicial. Defendant offered to stipulate that whatever drugs that were found were possessed for the purpose of sale by whomever the jury concludes possessed them, if any. The court warned that the jury could conclude personal use more likely absent the stipulation by you that it was possessed for sale. Defendant agreed, and stated that he also understood that Melanie did not have to agree to the stipulation. The court found that admission of evidence of defendants priors would be more prejudicial than probative since theres a stipulation from counsel[ t]hat whoever possessed it possessed it for sale.

Melanie argued that defendants stipulation was very prejudicial to her in that her statements to the police reflect possession. Not possession for sale. And for the Court to allow that to come in, obviously, is much more prejudicial against her than probative of anything. While it may offer some barrier for [defendant], it certainly allows the jury to infer that, well, gosh, if hes agreeing its possessed for sale then obviously . . . she can be found guilty for possession [for] sale when she has no stipulation to that fact at all. The court agreed to revisit the issue the following day.

The next day, defendant again offered to stipulate that the drugs were possessed for sale in order to preclude introduction of evidence of defendants prior possession-for-sale convictions. Defendant acknowledged that the prosecutor had not agreed to the stipulation, and that the court was willing to allow introduction of evidence of two of the three priors to show intent. Defendant again argued that while evidence of one prior was prejudicial, two is overly prejudicial. The prosecutor argued that it was not overly prejudicial, and that she did not accept the stipulation that defendant offered. The court ruled that the prosecutor could introduce evidence of two of defendants priors on the issue of knowledge and intent to sell. The court instructed the jury, both at the time the evidence was introduced and again at the conclusion of the case, that the evidence was admitted for the limited purpose of showing defendants knowledge of methamphetamine and whether he possessed the methamphetamine for sale.

Defendant now contends that the court prejudicially erred in failing to enforce his offered stipulation. Defendant argues that the trial court should have enforced the offered stipulation against defendant and fashioned the stipulation in such a way as to prevent it from impacting Melanie.

The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the states case of its persuasiveness and forcefulness. [Citation.] (People v. Garceau (1993) 6 Cal.4th 140, 182.) The prosecution is not obligated to present its case in the sanitized fashion suggested by the defense. [Citation.] (Ibid.; accord, Old Chief v. United States (1997) 519 U.S. 172, 186-187 (Old Chief).) The fair and legitimate weight of conventional evidence . . . [of] testimony and tangible things . . . tells a colorful story with descriptive richness. (Old Chief, supra, 519 U.S. at p. 187.)

There is an exception to the general rule, when the probative value of the evidence is substantially outweighed by its prejudicial effect. (Evid. Code,  352.) (People v. Thornton (2000) 85 Cal.App.4th 44, 49.) However, the defendant cannot stipulate away evidence by stipulating away issues. (Ibid.)

We review the trial courts ruling on defendants offered stipulation for an abuse of discretion. Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.] Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. [Citations.] (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)

In this case, evidence that defendant had been twice convicted of possession of methamphetamine for sale was more powerful evidence of defendants knowledge and intent to sell than defendants proposed stipulation would have been. In addition, the record reflects that the court and Melanies counsel questioned the language of the offered stipulation, that defendant was given an opportunity to present a more explicit stipulation or more precise language for the offered stipulation that would answer the expressed concerns, and that defendant did not offer a stipulation that would answer the expressed concerns. The record also shows that the court exercised its discretion in determining that the probative value of evidence of two of defendants prior convictions outweighed the prejudicial effect of that evidence. (Evid. Code,  352.) As we find no abuse of discretion as to this ruling, we cannot fault the trial courts exercise of discretion regarding defendants offered stipulation.

Instruction on the Corpus Delecti Rule

The reporters transcript reflects that the court instructed the jury pursuant to Judicial Council of California Criminal Jury Instructions (2006) CALCRIM Nos. 358 and 359 as follows: You have heard evidence that . . . defendants Melanie Guadagni and Michael Shum made an oral or written statement before trial. I think it was oral. You must decide whether or not the defendant made any such statement in whole or in part. If you decide that the defendants made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. Its up to you to decide how much importance you want to give to such a statement.

The defendants in this case may not be convicted of any crime based on their out-of-court statement alone unless you conclude that other evidence shows someone committed the charged crime. You may not rely on any out-of-court statement by the defendants to convict her or him. The other evidence may be slight and you would only need only be enough to support a reasonable inference that someones criminal conduct causes a loss, injury, or harm. The other evidence does not have to prove beyond a reasonable doubt that a crime was actually committed. [] The identity of the person who committed the crime may be proved by the defendants statements alone. You may not convict the defendant unless the People have proven their guilt beyond a reasonable doubt. (Italics added.)

The clerks transcript reflects that the italicized portion of CALCRIM No. 359 that the court gave reads: Defendants Melanie Guadagni and Michael Shum may not be convicted of any crime based on her/his out-of-court statement alone. Unless you conclude that other evidence shows someone committed the charged crime, you may not rely an any out-of-court statement by the defendant to convict her/him.

Based on the punctuation of the italicized portion of CALCRIM No. 359 reflected in the reporters transcript, defendant contends that the court gave an erroneous instruction on the corpus delecti rule. Defendant argues that the erroneous instruction told the jury to ignore his co-defendants admission/confession, despite the prior instruction on out-of-court statements which told the jury it could properly consider her out-of-court statements in determining guilt or innocence.

The Attorney General argues that the punctuation in the reporters transcript of the instruction given by the court is incorrect. The Attorney General notes that a written copy of all the instructions was given to the jurors in the jury room. The written version was correct, and when the court read the instruction, it did so as set forth in the written instruction. Thus, the Attorney General argues, the jury was correctly instructed.

It may be said . . . as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerks minutes should prevail as against contrary statements in the reporters transcript, must depend upon the circumstances of each particular case. (People v. Smith (1983) 33 Cal.3d 596, 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216.)

In this case, it appears to us that there is an irreconcilable conflict in the record. It also appears to us that the punctuation in the written instruction in the clerks transcript should prevail as against the contrary punctuation reflected in the reporters transcript. The punctuation in the written instruction is consistent with the punctuation in the standard instruction, and we must presume that the trial court gave the instruction as written. (See Evid. Code, 664.) As defendant does not claim that the written instruction is an incorrect statement of law, defendant has not shown that the trial court erred in instructing the jury on the corpus delecti rule.

Gang Evidence

During cross-examination of Detective Hill regarding the search of the living room in Melanies home for indicia of defendants occupancy of it, Melanies counsel asked the detective if he examined a camera. The detective responded that another officer found a camera and showed it to him. Melanies counsel asked, What did you see on the camera? The detective responded, I saw pictures of Mr. Shum in that room with either by himself or with another Hispanic male. It looked like and they were what we would refer to as flashing gang signs. Defendants counsel did not object to the question or answer and, in response to Melanies counsels follow-up questions, the detective said that he did not preserve the pictures or seize the camera.

Later, during the prosecutors redirect examination of Detective Hill, the prosecutor asked the detective to tell her about this camera you found. The detective responded, Okay. It was a small digital camera that one of the other officers had picked up and started scrolling though the pictures. When he found pictures of Mr. Shum he brought it to my attention and I looked at them. After the detective said that there were several pictures of defendant on the camera, the prosecutor asked, How many pictures of there of Mr. Shum throwing gang signs? The detective responded, At least one. Defendants counsel objected on relevancy grounds, and the court sustained the objection. The prosecutor requested to be heard and, after an off-the-record bench conference, the court again sustained the objection. The prosecutor then asked the detective, But you did view the picture, correct? Of Mr. Shum and his friend throwing the sign. The detective responded, Yes, maam. Defendants counsel did not object to the renewed question or answer.

Defendant now contends that his counsel rendered ineffective assistance by failing to object to the repeated admission of gang evidence, and by failing to request that the gang evidence ruled irrelevant by the court be stricken. Had defense counsel objected initially, and subsequently if necessary, and sought to have the evidence stricken from the jurys consideration, his requests would have no doubt be[en] granted. His failure to do so establishes by a preponderance of the evidence that his performance was deficient. . . . Moreover, there could not have been any tactical reason for defense counsels failure to so act on behalf of his client. . . . [] The admission of this gang evidence was highly inflammatory and prejudicial, in light of the weak circumstantial evidence of [defendants] guilt.

To prevail on a claim of ineffective assistance of counsel, the defendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficit performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope (1979) 23 Cal.3d 412, 426.)

Whether to object to inadmissible evidence is a tactical decision; because trial counsels tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsels incompetence. [Citation.] Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess counsels reasonable tactical decisions. [Citation.] (People v. Riel (2000) 22 Cal.4th 1153, 1185.) An attorney may choose not to object for many reasons, and the failure to object rarely establishes incompetence of counsel. (People v. Kelly (1992) 1 Cal.4th 495, 540.) [I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jurys apparent reaction to the proceedings. (People v. Riel, supra, at p. 1197.) Thus, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. [Citations.] (People v. Weaver (2001) 26 Cal.4th 876, 926.)

In this case, defendant has not shown that it is reasonably probable the outcome of his trial would have been different but for counsels failure to object to the gang evidence discussed above, and counsels failure to request that the evidence be stricken. First, Detective Hills testimony regarding a picture of defendant on a digital camera flashing gang signs was the only gang evidence presented, no other evidence that defendant was affiliated with a gang was presented, and the detective did not refer to the gang as a criminal street gang. (See Pen. Code, 186.21.) Second, the detective testified that he did not preserve the picture or seize the camera, so counsel could have believed that the jury would find that the picture was of little significance. Third, counsel could have believed that an objection would have highlighted the testimony and made it more significant than it was. Fourth, we read the record as showing that the court ruled that what was irrelevant was how many pictures there were of defendant throwing gang signs, not that one picture was seen. Fifth and last, but most important, the other evidence the prosecutor presented at trial overwhelmingly supported the jurys determination of defendants guilt. On this record, we cannot say that defendant was prejudiced by counsels failure to object to the testimony regarding the picture or counsels failure to request that the testimony be stricken.

Prior Spousal Battery Offense

Prior to trial, the prosecutor moved in limine to be able to impeach defendant, should he testify, with his prior convictions involving moral turpitude, including a misdemeanor conviction under Penal Code section 273.5 (battery of a spouse or cohabitant). Defense counsel informed the court that, if these are crimes which involve moral turpitude, and my client is going to testify, I believe they come in no matter what I say, Judge. I would just like to look at basically, see if they are fresh or stale. After the prosecutor informed the court that all the relevant convictions occurred within the prior 10 years, the court ruled that it would admit those prior convictions for purposes of impeachment . . . .

During the prosecutors cross-examination of defendant, the following occurred.

[THE PROSECUTOR]: Now, lets go forward in time a little bit. Okay. Lets turn to 2000. Now, in that case your girlfriend at the time is 19 years old, correct?

[THE DEFENDANT]: Yes.

[THE PROSECUTOR]: And the reason the police are there, because there was a domestic violence issue, correct?

[THE DEFENDANT]: Correct.

[THE PROSECUTOR]: And, in fact, you had choked out your girlfriend, didnt you?

[THE DEFENDANT]: I cant say I did, but I got convicted that I did, you know.

Defendant now contends that counsel rendered ineffective assistance by failing to object to admission of evidence of the prior spousal battery conviction on the ground that the offense does not constitute a crime of moral turpitude. He argues that simple battery is not a crime involving moral turpitude, thus the conduct underlying the conviction is not admissible for impeachment purposes, and misdemeanor battery of a spouse or cohabitant is akin to simple battery, so the conduct underlying his Penal Code section 273.5 conviction was also inadmissible for impeachment purposes. He further argues that the evidence was highly inflammatory, that there can be no tactical reason for defense counsels failure to object, and that his conviction is based on weak circumstantial evidence, therefore, it is reasonably probable the outcome of his trial would have been different had it not been for counsels failure.

Nonfelony conduct involving moral turpitude is admissible for impeachment purposes in a criminal proceeding. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296 (Wheeler); Cal. Const., art. I, 28, subd. (d).) Whether the conduct is probative of the witnesss veracity depends on its nature, not on the fact of a misdemeanor conviction. (Wheeler, supra, at pp. 299-300.) The trial court has discretion under Evidence Code section 352 to exclude such evidence when its probative value is outweighed by its potential for prejudice, confusion, or undue consumption of time. (Id. at p. 295.)

A crime involves moral turpitude where the commission of the offense evidences a general readiness to do evil. (People v. Castro (1985) 38 Cal.3d 301, 314, italics omitted.) Hence, if a readiness to do evil can reasonably be inferred from the elements of the offense, the prior offense is admissible for impeachment purposes. (People v. White (1992) 4 Cal.App.4th 1299, 1303.) In People v. Rodriguez (1992) 5 Cal.App.4th 1398 (Rodriguez), this court held that a violation of Penal Code section 273.5 was an offense involving moral turpitude. To violate Penal Code section 273.5 the assailant must, at the very least, have set out, successfully, to injure a person of the opposite sex in a special relationship for which society rationally demands, and the victim may reasonably expect, stability and safety, and in which the victim, for these reasons among others, may be especially vulnerable. To have joined in, and thus necessarily to be aware of, that special relationship, and then to violate it willfully and with intent to injure, necessarily connotes the general readiness to do evil that has been held to define moral turpitude. (Id. at p. 1402.) Our holding in Rodriguez has generally been followed by other courts. (See, e.g., People v. Martinez (2002) 103 Cal.App.4th 1071, 1081.)

Evidence of the conduct underlying defendants misdemeanor conviction under Penal Code section 273.5 was admissible on the question of defendants veracity, even if the conviction itself was not. Therefore, defendant could be properly impeached with questions about the factual details supporting the conviction. In this case, the prosecutor did not ask defendant whether he had a prior conviction for domestic violence. Instead, the prosecutor asked defendant whether he committed the conduct underlying his prior misdemeanor conviction. This was proper. (Wheeler, supra, 4 Cal.4th at p. 300, fn. 14 [witness may be impeached with evidence of the underlying conduct of the misdemeanor].) It was defendant who volunteered that he had a domestic violence conviction as a result of the incident.[8] Accordingly, defendant has not shown that he was prejudiced by counsels failure to object to admission of evidence of his spousal battery offense.

Cumulative Error

Defendant contends that the cumulative effect of the array of numerous errors in this case greatly affected the outcome of his trial. Our Supreme Court has recognized that a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844.) However, as we discussed above, we find that the court did not err in instructing the jury, that it did not abuse its discretion regarding defendants offered stipulation, and that defendant was not prejudiced by his counsels alleged ineffective assistance. Accordingly, no cumulative error has been shown.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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[1] All further statutory references are to the Health and Safety Code unless otherwise specified.

[2] Melanie Guadagni is not a party to this appeal. Because another witness shares her last name, and not out of any disrespect, we will hereafter refer to her as Melanie.

[3] The prosecution subpoenaed Wright, but outside the presence of the jury she invoked her Fifth Amendment right to not testify about anything relating to the night of April 5, 2005.

[4] The parties stipulated to the net weight of the three individual baggies of methamphetamine. Detective Hill testified that there are approximately 28 grams in an ounce of methamphetamine, so 13.1 grams is approximately one-half ounce.

[5] Hill testified that someone could buy one-quarter pound, or four ounces, of methamphetamine for $2,400 on April 5, 2005.

[6]Miranda v. Arizona (1966) 384 U.S. 436.

[7] At the time this evidence was presented, the court instructed the jurors that the evidence could only be considered by them on the issues of defendants knowledge of methamphetamine and whether he intended to possess the methamphetamine in the current case for sale.

[8] Contrary to defendants assertion in his opening brief, the prosecutor did not ask defendant if he was convicted of misdemeanor domestic violence as a result of the incident. The prosecutor asked defendant if he was convicted of making a criminal threat as a result of other conduct during the incident.