P. v. Uqdah
Filed 1/30/07 P. v. Uqdah CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. SHAKIR UBAID UQDAH, Defendant and Appellant. | B190931 (Los Angeles County Super. Ct. No. MA033207) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael K. Kellogg, Judge. Affirmed as modified.
Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________________
A jury convicted defendant and appellant Shakir Ubaid Uqdah of four countsconspiring to possess cocaine base for the purpose of sale, specifically finding true the three alleged overt acts (Health & Saf. Code, 11351.5; Pen. Code, 182, subd. (a)(1)); possessing cocaine base for the purpose of sale (Health & Saf. Code, 11351.5); forging a public seal (Pen. Code, 472); and forging a vehicle registration document (Veh. Code, 4463, subd. (a)). As to the narcotics-related counts, the jury found that the crimes were committed for the benefit of a criminal street gang (Pen. Code, 186.22). The trial court imposed a five-year prison term, consisting of the lower term of three years for the cocaine possession conviction, plus two years for the gang enhancement. Sentence on the conspiracy count was stayed pursuant to Penal Code section 654. The trial court imposed concurrent two-year, middle term sentences for both forgery convictions.
In his timely appeal, defendant contends: (1) there was constitutionally insufficient evidence to support his cocaine possession conviction; (2) there was constitutionally insufficient evidence to support the criminal street gang findings; (3) trial counsel rendered constitutionally ineffective assistance by failing to object to testimony by the prosecutions expert witness; (4) the trial court prejudicially erredand violated his right to a fair trial under the federal Constitutionby instructing the jury pursuant to CALJIC No. 2.28 that the defense violated its reciprocal discovery obligations; and (5) the trial courts imposition of concurrent sentences for the two forgery counts violated Penal Code section 654s proscription against multiple punishments. We disagree with the first four contentions, but find merit in defendants final contention. We order the trial court to stay the sentence in one of the two forgery counts, and otherwise affirm the judgment.
STATEMENT OF FACTS
Prosecution Case
A. The Forgery Offenses
On January 4, 2005, at 3:30 p.m., Los Angeles County Deputy Sheriff Randy Megrdle and his partner were in a marked patrol car. Defendant was driving a Ford Mustang on Cedar Avenue in Lancaster. The Mustang had no license plates, in violation of the California Vehicle Code. The deputies stopped defendants car. As Deputy Megrdle approached, he recognized defendant from previous contacts. The deputy smelled the odor of marijuana through the open car door window. Because defendant could not use his legs, the deputies assisted him out of the car so they could search for contraband. They found a small quantity of marijuana in the pocket of defendants pants.
A computer database search of the Mustangs Vehicle Identification Number revealed that registration fees had not been paid for close to a decade. Deputy Megrdle inspected a travel permit taped to the Mustangs passenger side windshield; it appeared to be a forgery. The deputy was an expert in forged Department of Motor Vehicles (DMV) documents. Close inspection of the permit disclosed various anomaliesthe printed letter was a salmon color, rather than dark red; it appeared to have printed by an ink jet printer; the paper on which it was printed was thinner than usual, causing the ink to bleed; the back of the document was missing the instructions usually printed there; the printing was fuzzy, instead of sharp; and the stamped California seal that should have been clearly delineated was nearly illegible.
Defendant told Deputy Megrdle that he owned the vehicle and had obtained the California travel permit from the DMV. Defendant also told the deputy that he had purchased the Mustang approximately two months earlier and the permit was affixed to the windshield at that time. When the deputy challenged defendant on that pointreminding defendant that the deputy had seen him in the car more than two months earlier without the permitdefendant changed his story and said a friend had placed the permit in the car. Defendant admitted knowing that the vehicle was not registered.
Detective Dennis Kneer testified that he interviewed defendant at the Sheriffs station after defendants arrest. Defendant spoke voluntarily after waiving his constitutional rights. Defendant told the detective that the permit came from defendants uncle, who initially placed it on the cars window. Defendants fingerprints would be on the document because defendant subsequently taped it to the window. Defendant denied knowing that the permit was forged, but he admitted knowing that he was driving the car without proper registration.
B. The Narcotics Transaction
Deputy Michael Pokorny was on patrol with his partner, Deputy Paul Zarris, on Cedar Avenue in Lancaster on September 14, 2005, at 1:00 p.m. Among the street gangs claiming that location as their territory was the Pacoima Piru Bloods (PPB). From a concealed position, Deputy Pokorny used binoculars to observe defendant, who was in his wheelchair in the driveway of a Cedar Avenue residence. The deputy recognized defendant from numerous previous contacts. An unknown African-American man was standing next to defendant. Approximately ten other persons were in the front yard. All of them were dressed in a similar fashion, emphasizing the red clothing and accessories typical of PPB members.
A gold Lincoln Towncar was parked in the driveway. Defendant was next to the Towncars front passenger door, and the unknown male was on defendants right. Another vehicle stopped in the middle of Cedar. A male passenger, later identified as Emmanuel Williams, exited the car and walked up to defendant and the unknown male. Williams wore a red skull cap, jean shorts, and had red bandanas tied to his ankles. Williams handed some paper currency to defendant, who took the cash and put it in the front pocket of his pants. Defendant nodded to the unknown male, who handed Williams a golf ball sized item, wrapped in a plastic bag. Williams placed the plastic bag in his pants pocket and stood by defendant and the unknown male.
Deputies Pokorny and Zarris returned to their marked patrol car and drove to the Cedar Avenue residence. As they approached, the persons in front of the residence fled in various directions. The deputies stopped and approached the female driver of the car parked in the middle of Cedar Avenue in front of defendant. As Deputy Pokorny was speaking to her, Williams returned to the car. Williams said he was a PPB member called Cereal; he had Pacoima tattooed on his chest and was on parole. The deputy asked Williams if he would consent to being searched. Williams initially consented, but when the deputy attempted to pat him down, Williams suddenly spun around and ran. Deputy Pokorny chased and tackled him on the front lawnand found in Williamss pocket the plastic bag he had observed through his binoculars. Inside were eight Ziploc bags containing eight similarly-sized pieces of cocaine base, weighing a total of 3.44 grams.
Testifying as an expert, Deputy Pokorny explained that hand-to-hand narcotics transactions in the general location of the incident were predominately accomplished by partnerships of sellers in which the purchaser paid one partner, while the other partner held and transferred the drugs. Deputy Zarris also testified that in his experience the great majority of hand-to-hand narcotics transactions involve multiple sellers.
Deputy Mergrdle testified that in his experience investigating narcotics transactions in that neighborhood, sellers typically work in pairs or threes, with one person functioning as a lookout, while another takes the money from the buyer, and the third provides the contraband to the buyer. The location on Cedar Avenue where defendant was arrested was within PPB territory. One of PPBs activities is selling narcotics. Typically, in that area, narcotics are sold by two or more personsthe customer will give the money to one seller and the other will provide the drugs to the customer. On cross-examination, the detective testified he had witnessed transactions in which the seller who received the money nodded to another person, who delivered the drugs to the customer.
Detective William Costleigh testified as a gang expert. He was familiar with the PPB gang. Defendant personally represented himself to the detective as being a PPB member. Defendant had a tattoo of a graveyard, representing fellow gang members who had died. He had other tattoos indicative of his PPB affiliation on his body. In 2003, Detective Costleigh and Detective Brian Dorsey took part in serving a search warrant for gang-related narcotics sales. Defendant was arrested and Pacoima Piru was tattooed on his arm. Antoine Toine Washington, a PPB member, was also arrested; he was convicted of gang-related activity. Defendant was often seen in the company of other PPB members.
Detective Dorsey testified as to the predicate crimes for purposes of the gang allegation. PPB is a Blood-affiliated street gang; its members wear red. It and another Blood gang claim as their territory the location in which the drug transaction occurred. The PPB members participate in a variety of crimes, including vandalism, robberies, assaults, drive-by shootings, extortion, witness intimidation, murder, and narcotics salesprimarily cocaine base. Williams had been convicted of possessing narcotics for sale. Defendant is a self-professed member of the PPB gang, who bears identifying tattoos and affiliates with other members in his neighborhood.
The expert opined that defendants underlying crimes were committed to benefit the PPB gang, within the meaning of the gang allegation. In context, it is clear that the expert was not opining as to what defendant was actually thinking at the time. The basis of his opinion that defendants actions betrayed a gang-related motivation was his knowledge that gangs use narcotics sales as the primary means of obtaining funds and also to recruit members. It is common for one gang member to sell narcotics to another who, in turn, will resell it for the gangs profit. In the past six years, he had observed hundreds of hand-to-hand narcotics sales by PPB members in the same location where defendant was observed making the sale to Williams.
Defense Case
Joyce Lacey testified that she knew defendant as Shak; they were not good friends, but acquaintances. In September 2005, she was visiting a friend named Butch, who lived next door to defendant on Cedar Avenue. After Lacey and Butch went outside to smoke, she saw a car stop in the middle of Cedar Avenue. A passenger exited the car and walked up to defendant. Defendant handed two bills of currency to the passenger. The passenger walked back to his car. As he passed Lacey and Butch, he told the latter, Im going to Auto Zone for [defendant]. Does anybody need something from the store? I am going that way. Just as the passenger reentered the car, a police patrol car approached. The passenger ran back out of the car and fell over the curb. The police officers subdued him, and she went back into Butchs house. At no time did she see defendant receive money from the passenger.
Lacey testified on Wednesday, March 22, 2006. She knew nothing about the prosecution against defendant until the Saturday before her testimony. On that date, she coincidentally met her friend Meeche while moving into a new apartment in Mojave. Meeche was the girlfriend of defendants brother, Amin. As they conversed, Meeche or Amin mentioned that defendant was in jail pending trial. When they described the underlying incident, Lacey remembered witnessing it. However, she was not testifying at the request of Amin or Meeche. She wanted to testify because she was a witness to something that was real twisted up. Lacey admitted having been convicted of petty theft in 2002, after having been charged with grand theft.
On cross-examination, Lacey stated that the first time she first told defense counsel and the prosecutor about her involvement was the day before she testified. Lacey also explained that prior to her Saturday discussion with Amin and Meeche, she did not know that Meeche lived in the same apartment building that Lacy happened to be moving into. It was a coincidence. Although Amin and Mechee did not tell Lacey what defendant was charged with, she told them that she would testify at his trial. They gave her directions to the courthouse, and Lacey drove herself there. She was unemployed from the time of the September 2005 incident on Cedar Avenue to the present. As to the incident itself, Lacey did not remember anything distinctive about the manner in which the passenger, who handed money to defendant on Cedar Avenue, was dressed. She did not see anyone standing next to defendant. As to her prior conviction, Lacey explained that she was in the company of a 13-year-old, who stole items from a Walmart store.
DISCUSSION
Sufficiency of Evidence Claims
Defendant contends there was constitutionally insufficient evidence to support his cocaine possession conviction and his criminal street gang enhancement. As we explain, both contentions fail.
In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Defendant argues there is no solid, nonspeculative evidence that he possessed the cocaine found inside the bag in Williamss pocket. We disagree. The fact that no one witnessed the contraband in defendants actual possession is not determinative. As our Supreme Court explains, It is well established that one may become criminally liable for possession for sale . . . of a controlled substance, based upon either actual or constructive possession of the substance. [Citation.] Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another. [Citation.] . . . A defendant also may be convicted of possession . . . of a controlled substance when his or her dominion and control are exercised through the acts of an agent. (People v. Morante (1999) 20 Cal.4th 403, 417; People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1415.) It also is established that one may be guilty of conspiring to possess for sale or to transport a controlled substance without physically possessing it. (People v. Morante, supra, 20 Cal.4th at p. 418.) Unlawful possession of a controlled substance for sale can be established by circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.)
The evidence of defendants constructive possession was strong. Deputy Pokorny testified defendant was in front of a residence in PPB territory, surrounded by persons all dressed as fellow Bloods. Defendant received money from Williams and nodded to the unidentified male at his right hand. That male immediately handed Williams a golf ball sized item containing cocaine base, wrapped in a plastic bag. Williams placed the plastic bag in his pants pocket, where it was recovered minutes later, after Williams attempted to flee. The jury thus had good reason to infernot merely speculatethat defendant maintained a right to control the contraband that was in the actual possession of the unidentified male, who was acting as defendants agent for the purpose of consummating the transaction. (See People v. Gonzalez, supra, 116 Cal.App.4th at p. 1416; People v. Meza, supra, 38 Cal.App.4th at p. 1746; People v. Austin (1994) 23 Cal.App.4th 1596, 1609, overruled on another point in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.) As the deputys testimony was neither physically impossible nor inherently improbable, it was sufficient to support the conviction. (See People v. Young, supra, 34 Cal.4th at p. 1181.) We also note that the deputys testimony was bolstered by testimony from the other law enforcement officers to the effect that drug sales in that neighborhood were often effected by seller partnerships in which the money and the contraband were handled by different persons.
Defendant also asserts the jury could only speculate that, pursuant Penal Code section 186.22, subdivision (b)(1), defendant committed the narcotics offenses for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. According to defendant, the prosecutions evidence provided no reasonable basis for inferring that defendant intended to sell the narcotics for his gangs benefit, rather than for his own personal profit. We disagree.
The evidence of defendants gang-directed intent was strong. It was undisputed not only that defendant was a PPB member, but that the narcotics sale to Williams occurred in PPB territory, in the presence of a large number of persons who appeared to be affiliated with the Bloods. Williams himself was a Blood, who had been previously convicted of possessing narcotics for the purpose of sale. The PPB gang sells cocaine base and marijuana to support itself, buy weapons, and recruit new members. It is not uncommon for one gang member to sell narcotics to another for resale purposes. In the neighborhood where the underlying transaction occurred, Blood gang members have cornered the market for narcotics sales. The cocaine found in Williamss pocket was consistent with such a gang-related purposeit was packaged in eight separate Ziploc bags containing eight similarly-sized pieces of cocaine base, totaling 3.44 grams.[1]
Based on these facts, a constitutionally reasonable inference was that defendant committed his narcotics conspiracy and possession offenses in association with the PPB criminal street gang with the specific intent of promoting that gangs criminal conduct. (See, e.g., People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [circumstantial evidence and expert testimony sufficient to support finding that narcotics sale was gang related].) Certainly, this is a far more reasonable inference than the notion that defendant was engaged in his own freelance narcotics operation, right under the noses of his fellow gang members.
Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered constitutionally ineffective assistance by failing to object to Detective Dorseys conclusion that if defendant were selling narcotics, it would have been for the benefit of the PPB gang. Defendant argues the detectives opinion amounted to improper speculation as to defendants subjective mental state, contrary to People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658, and that his conclusion was speculative. We disagree.
To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland); Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.) (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
The Sixth Amendment guarantees competent representation by counsel for criminal defendants[, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8 Cal.4th 450, 513.) A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations.] (People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)
Based upon the trial record and the governing caselaw, defense counsel had little reason to believe an objection to the gang experts testimony would have been successful. A trial court has discretion concerning the admission of evidence, including gang expert testimony. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194.) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (Evid. Code, 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Killebrew, supra, 103 Cal.App.4th at p. 651.) Expert testimony concerning the culture, habits, and psychology of gangs meets this criterion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506; see People v. Gardeley, supra, 14 Cal.4th at p. 617.) A properly qualified gang expert may therefore, where appropriate, testify to a wide variety of matters, including whether and how a crime was committed to benefit or promote a gang; the motivation for a particular crime; a gangs culture, habits, size, composition, existence, territory, and primary activities; a defendants gang membership; rivalries between gangs; and gang graffiti, tattoos, hand signs, and attire. (People v. Killebrew, supra, 103 Cal.App.4th at pp. 656-657, and authorities cited therein; see also People v. Ferraez, supra, 112 Cal.App.4th at p. 930.)
Contrary to defendants assertions, a gang experts testimony may properly be admitted to prove motive and intent. (See People v. Carter, supra, 30 Cal.4th at p. 1196; People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Expert testimony has repeatedly been offered to prove the motivation for a particular crime, generally retaliation or intimidation and whether and how a crime was committed to benefit or promote a gang. (People v. Killebrew, supra, 103 Cal.App.4th p. 657.) An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jurys common experience. (People v. Valdez, supra, 58 Cal.App.4th at pp. 507-509.) Indeed, courts have repeatedly found the admission of similar examples of expert testimony proper. (E.g., People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209 [expert could properly opine that the defendant committed shooting to reestablish and bolster his reputation within the gang, reestablish the gang within the community, and send a message to the community and rival gangs]; People v. Valdez, supra, 58 Cal.App.4th at pp. 508-510 [trial court properly admitted gang experts testimony that a caravan of members from seven gangs had acted on the date of the charged offense for the benefit of all seven gangs]; People v. Gardeley, supra, 14 Cal.4th at p. 619 [approving gang experts testimony that hypothetical attack based on the facts of the case was a classic example of gang-related activity, in that gangs rely on such assaults to frighten residents].)
This was not a case in which the expert exceeded the proper bounds of gang testimony by opining as to defendants subjective knowledge and intent. For instance, in In re Frank S. (2006) 141 Cal.App.4th 1192, 1199, the gang expert improperly opined as to the minors intent regarding knife possession without any supporting evidence of gang motive. In that case, [t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. (Ibid.) As detailed above, Detective Dorseys opinion was based on the kind of evidence missing in Frank S. The detective properly testified to the PPB gangs culture, habits, size, composition, territory, and primary activitiesand that defendants conduct was consistent therewith. (See People v. Killebrew, supra, 103 Cal.App.4th at pp. 657-658; People v. Ferraez, supra, 112 Cal.App.4th at pp. 930-931 [gang experts testimony properly admitted to explain to the jury how gangs reputation was enhanced through drug sales and how gang may use drug proceeds].) Having concluded the gang evidence was admissible, defendants Sixth Amendment claim must fail. It is axiomatic that the failure to object to admissible evidence does not constitute inadequate assistance of trial counsel.
CALJIC No. 2.28
Defendant contends that the trial court erroneously and prejudicially instructed, pursuant to modified pattern instruction CALJIC No. 2.28, that the defense failed to make a timely disclosure of witness Lacey. Defendant also asserts this claimed error denied him a fair trial under the Fourteenth Amendments due process clause. As we explain, however, the instruction was entirely proper based on defendants unjustified failure to disclose his witnesss identity until the fourth day of trial. Further, the alleged instructional error is of state law, not constitutional, dimension. In any event, any error would have been nonprejudicial under the more rigorous constitutional standard because the instruction did not blame defense counsel or defendant for the discovery violation, and Laceys testimony was extremely weak and lacking in credibility for reasons independent of the challenged instructionthe jury was entitled to know the dubious circumstances surrounding Laceys last minute identification as a defense witness, which cast severe doubt on her credibility.
Penal Code section 1054.3 imposes the reciprocal discovery obligation that the defendant and his or her attorney . . . disclose to the prosecuting attorney: [] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial . . . [and] [] (b) Any real evidence which the defendant intends to offer in evidence at the trial. Under Penal Code section 1054.7, The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. Penal Code section 1054.5, subdivision (b), sets out various means for enforcing these obligations and provides that the trial court may advise the jury of any failure or refusal to disclose and of any untimely disclosure. At the time of defendants trial, CALJIC No. 2.28 contained the prescribed advisement.
While defendant correctly points out that appellate courts have repeatedly criticized prior versions of CALJIC No. 2.28 (People v. Lawson (2005) 131 Cal.App.4th 1242, 1247-1249; People v. Saucedo (2004) 121 Cal.App.4th 937, 942-943; People v. Cabral (2004) 121 Cal.App.4th 748, 752; People v. Bell (2004) 118 Cal.App.4th 249, 256-257),[2]those criticisms do not apply to the circumstances before us. The decision in People v. Bell, supra, 118 Cal.App.4th 249, is representative. There, the court gave four reasons why the trial court should not have given the instruction. The primary reason was the Bell courts finding that there was nothing in the record to show that the defendant bore responsibility for the discovery failure, which was attributable solely to counsel and his investigator. As such, it was misleading to suggest that the defendant was responsible for the failed compliance. (Id. at pp. 254-255.)
Here, in contrast, the trial court was aware of the Bell decision and modified the pattern instruction to absolve the defense of any blame. The record shows that on March 21, 2005, the fourth day of trial, the court held a hearing outside the jurys presence concerning Lacey, whom the defense intended to present in its case-in-chief despite the lack of timely discovery. Defense counsel explained that the girlfriend of defendants brother had spoken to Lacey approximately three days before. During that conversation, Lacey said she witnessed Williamss September 14, 2005 arrest. Lacey, however, did not know that defendant had been arrested, since defendants arrest occurred later. Defense counsel explained that Laceys version of events differed markedly from that of the prosecution witnesses. The prosecutor objected to Laceys testifying on grounds that there was no justification for the belated discovery of her identity. Before ruling, the trial court allowed the parties time to brief the issue of whether Lacey would be permitted to testify, butif she didthe court intended to instruct the jury that her identity was not disclosed to the prosecution in a timely manner.
Lacey testified out of the jurys presence in a Penal Code section 402 hearing concerning the reasons for her belated identification as a defense witness. Lacey explained that Amin invited her to come to the court. She first learned about defendants trial on Saturday, March 18, 2005trial began on the preceding Thursday. She first met Amin approximately one month prior. Lacey had been a friend of Amins girlfriend, Meecha, for a year. It was a chance meeting with Meecha on Saturday, arising out of the coincidence that Lacey was moving into the same apartment building thatunbeknownst to herMeecha had recently moved into. Lacey testified that she told no one about her plan to attend the trial; she just showed up at court on March 21, 2006. However, she also testified that on the previous Saturday, Meecha asked Lacey to come to defendants trial on that Tuesday. During the course of their conversation in Mojave on Saturday, Lacey learned defendant was in jail pending a trial. When Meecha described the underlying incident concerning the narcotics sales allegation on Cedar Street, Lacey realized she was there at the time. She lived nearby and was visiting a male friend next door to defendants residence on Cedar Avenue.
The trial court found Laceys testimony not credible. It also found that Laceys belated involvement in the defense case was a reprehensible attempt to manipulate the system. However, the trial court made it clear that defense counsel was totally unaware and totally out of the loop on this one. The trial court nevertheless permitted the defense to call Lacey as a witness, leaving the tactical decision to the defense.
Without any objection from the defense, the trial court gave a modified version of CAJIC No. 2.28, omitting the paragraph that would have assigned blame to one of the parties for the discovery violation: The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. [] Delays in disclosure may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the nonrevealing partys evidence.[[3]] [] Although the witness in this caseand that would be . . . Joyce Michelle Laceywas made known to both the prosecution and the defense on Tuesday morning while the trial was in progressso both sides became aware of this individual at the same timethe court has under the law permitted the production of this evidence during the trial. [] The weight and significance to any delay of the disclosure to both the prosecution and the defense are matters for your consideration. However, you should consider whether the lateness of the witness existence pertains to a fact of importance or something . . . trivial, or the subject matter already established by the other credible evidence. (Emphasis added.)
Thus, as the italicized text shows, the trial court went out of its way to make it clear that both parties were surprised by the late witness discovery, and that neither side was to blame. The instruction merely identified the violation of discovery rules without attributing responsibility to either party, rendering the instruction nonprejudicial to defendant. Contrary to defendants assertion, the trial court never suggested that defendant had any role in procuring Laceys testimony.
Bell also criticized CALJIC No. 2.28 because (1) the instruction allowed the jury to speculate that the prosecutor was actually harmed by the late discovery without any information regarding this purported disadvantage; (2) it implied that the jurors should do something without clarifying how they should approach the late-discovered evidence and without any guidance on what remedy they should apply; and (3) it failed to caution the jury that untimely discovery, standing alone, was insufficient to support a guilty verdict. (People v. Bell, supra, 118 Cal.App.4th at pp. 254-256.) None of those concerns applies with any force to this case.
In front of the jury, the prosecutor never stated or implied that Laceys belated identification prejudiced the Peoples case. Rather, he made two arguments, neither of which depended on CALJIC No. 2.28. First, the prosecutor explained why the circumstances surrounding Laceys revelation that she witnessed the incident on Cedar Avenue rendered her testimony unworthy of belief. The coincidences concerning her supposed meeting with Meecha and Amin were incredible, as were aspects of her substantive testimony. For instance, her testimony that she remembered important details of the incident, but not the extraordinary way in which Williams was dressed further undercut her credibilityas did her assertion that she was appalled by the police conduct in arresting Williams, but made no effort to find out what happened to him or to make a complaint. Again, however, the prosecutor never invoked the challenged instruction to argue that defendant was involved in procuring fabricated testimony.
Alternatively, the prosecutor argued that if Lacey were telling the truth, she must have witnessed what happened after the narcotics transaction. Deputy Pokorny testified that he and his partner returned to their patrol car after witnessing the sale. In the time it took for the deputies to retrieve their patrol car and drive to the Cedar Avenue residence, it would have been possible for defendant to hand Williams money to run an errand at the Auto Zone store. Thus, even if the jury credited her testimony, it did not seriously affect the prosecutions case. In short, there was nothing in the prosecutors arguments that would have given the jury reason to speculate that the prosecutor was actually harmed by the late discovery. Far from suggesting the jury do something unspecified based on the discovery violation, the prosecutor simply argued the jury should discount Laceys testimony as inherently lacking in credibility for the reasons adduced in cross-examination. Nothing in the trial courts instruction or the prosecutors argument suggested that untimely discovery, standing alone, was sufficient to destroy the defense case. Because the trial court modified the instruction to eliminate any reference to blame, while explaining that it exercised its legal prerogative to admit the evidence, the jury could have easily inferred the late production was somehow justified.
Nor do we accept defendants argument that giving CALJIC 2.28 amounted to constitutional error. Defendant premises that contention on the assertion that the instruction authorized the inference that defendant was involved in procuring fabricated testimony, despite the lack of any direct evidence of defendants involvement in such a scheme. As we have explained, the trial court modified the instruction to eliminate that type of inference by avoiding any assignment of blame for the discovery violation. Moreover, in People v. Saucedo, supra, 121 Cal.App.4th at page 941, the court explained why a closely related constitutional challenge fails: CALJIC No. 2.28 does not operate as a mandatory presumption of culpability per se. . . . Whether considered alone or in the context of the instructions as a whole, CALJIC No. 2.28 did not require jurors to find any factlet alone an elemental factif the prosecution proved other predicate facts, nor did it direct a finding on Saucedos alibi defense. (Ibid.)
Additionally, this type of instructional error is subject to harmless error analysis under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is reasonably probable appellant would have achieved a more favorable result if the court had not given the instruction. (People v. Lawson, supra, 131 Cal.App.4th at p. 1249, fn. 7.) As our foregoing analysis makes plain, any such error in this case would have been harmless under that standard or the standard for constitutional error under Chapman v. California (1967) 386 U.S. 18, 24. There was no reason for the jury to resort to CALJIC No. 2.28 to reach its verdict. As the trial court found in the context of ruling on defendants new trial motion, Laceys testimony was absolutely destroyed on cross-examination. Additionally, as the prosecutor argued, the jury could find her testimony believable and nevertheless find defendant guilty.
Multiple Punishment
In defendants final contention, he argues the trial courts imposition of concurrent sentences for the two forgery counts violated Penal Code section 654s proscription against multiple punishments. We accept the Attorney Generals concession that the two offenses arose out of an indivisible course of conduct, and therefore, one of the sentences must be stayed.
The proscription against double punishment in [Penal Code] section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. [Citation.] (People v. Coleman (1989) 48 Cal.3d 112, 162.) But if the defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335.) The question of whether a defendant harbored multiple objectives within the meaning of section 654 is a question of fact, and we will affirm if there is substantial evidence to support the trial courts implicit finding that defendant in this case had different objectives with regard to the two forgery counts. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Here, the trial court imposed concurrent two-year, middle term sentences for both forging a public seal in violation of Penal Code section 472 and for forging a vehicle registration document in violation of Vehicle Code section 4463, subdivision (a). Penal Code section 472 provides: Every person who, with intent to defraud another, forges, or counterfeits the seal of this State . . . , or who has in his possession any such counterfeited seal or impression thereof, knowing it to be counterfeited, and willfully conceals the same, is guilty of forgery. Vehicle Code section 4463, subdivision (a)(1) provides that it is a felony not only to alter, forge, counterfeit, or falsify various DMV documentsincluding a permit such as the one displayed in defendants carwith the intent to represent it as issued by the DMV, but also with fraudulent intent to display or to have in ones possession any forged, counterfeit, or false permit. As the prosecutor argued and the evidence showed, both of defendants convictions were based on his possession and display of the same forged or counterfeit DMV permit, which occurred at the same time and for the same purposesavoiding traffic stops and the payment of registration fees.
When Penal Code section 654 precludes multiple punishments, both concurrent and consecutive sentences are prohibited. (People v. Deloza (1998) 18 Cal.4th 585, 592.) In that circumstance, the statute requires the sentence for one conviction to be imposed, and the other imposed and then stayed. (Id. at pp. 591-592; People v. Miller (1977) 18 Cal.3d 873, 885-886, overruled on another ground as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8; see People v. Ortega (2000) 84 Cal.App.4th 659, 667.) Where the trial court erroneously fails to stay a term subject to Penal Code section 654, we must stay the sentence on the lesser offense while permitting execution of sentence on the greater offense consistent with the intent of the sentencing court. (E.g., People v. Pena (1992) 7 Cal.App.4th 1294, 1312.) Here, however, the felony punishment for both forms of forgery is the same: a state prison range of sixteen months, two years, or three years. Upon issuance of the remittitur, the trial court shall stay the sentence it imposed in one of the forgery counts pursuant to Penal Code section 654. We defer the decision of which of the forgery counts should be stayed to the sound judgment of the trial court.
DISPOSITION
The trial court is directed pursuant to Penal Code section 654 to stay the sentence imposed for either the charge of forgery of a public seal in violation of Penal Code section 472 or forgery of a vehicle registration document in violation of Vehicle Code section 4463, subdivision (a). A copy of the corrected abstract of judgment shall be transmitted by the clerk of the Los Angeles Superior Court to the Department of Corrections. In all other respects, the judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J. MOSK, J.
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[1] Much of this testimony came from Detective Dorsey, who offered an expert opinion that if defendant was guilty of the two narcotics offenses, then his purpose in committing them was to benefit the PPB gang. Defendant contends the detectives opinion amounted to improper speculation as to defendants subjective mental state, contrary to the holding in People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658. In the context of rejecting defendants ineffective assistance of counsel claim, we explain why defendant is mistaken as to the admissibility of the expert gang testimony.
[2] In the wake of these criticisms, CALJIC No. 2.28 has been revised. Penal Code section 1054 is also the subject of CALCRIM No. 306, which provides in pertinent part: Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [] An attorney for the (People/defense) failed to disclose: ___________
[3] In the written version of the instruction, as given to the jury, this sentence read: Late discovery of a witness or [sic] failure to produce evidence which may exist to rebut the non-complying parties [sic] evidence.
