APPEAL from a judgment of the Superior Court of Lassen County, Stephen Douglas Bradbury, Judge. Affirmed with directions. (Super. Ct. No. CR024002).
The opinion of the court was delivered by: Hull, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant James Lee Brown III appeals from his conviction for selling methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) In the published portion of this opinion, we conclude defendant is entitled to the retroactive benefit of an amendment to Penal Code section 4019 that went into effect after he was sentenced but before his conviction became final. (Further undesignated section references are to the Penal Code.) That amendment provides for enhanced presentence conduct credits for certain classes of offenders. In the unpublished portion of the opinion, we agree with defendant the abstract of judgment must be corrected to delineate the specific fines and fees imposed, but reject defendant's other contentions of judicial misconduct, prosecutorial misconduct, and sentencing error. We therefore affirm the judgment but remand with directions to provide a detailed recitation of the fines and fees imposed and to correct the abstract of judgment.
Between May and August 2006, at the invitation of the tribe, a law enforcement task force conducted an ongoing undercover drug buy program at a tribal casino near Susanville. Agent Lucy Villones was part of the task force. In her role, Villones would go to the casino and pose as a patron. She would generally sit next to other casino patrons and engage them in small talk. Sometimes she was directed by Marvin Clark, a local officer experienced in recognizing local drug dealers, to target specific people. Eventually she would ask the target if they knew where she could "get a little something." Consistent with the approach of drug users and dealers, Villones avoided naming a specific drug in these conversations.
Villones was working at the casino on August 11, 2006 and August 12, 2006. She was wearing hidden video and audio monitoring equipment. Parole agent Clark was monitoring the interactions on the casino video surveillance system. At about 2:00 a.m., Villones starting talking with Lisa Nunes, a target. Villones had known Nunes for about one month and had previously purchased narcotics from her. Villones asked Nunes if she could "get me something today?" Nunes replied she knew where to get something. Villones followed her, and Nunes made a phone call. Nunes reported, "My friend's got company, so we can't do anything now." Villones told Nunes she would be around if Nunes could find something for her, and Nunes walked away.
A few minutes later, Nunes returned to Villones with defendant. Villones had met defendant earlier in the buy program and had been directed to speak with him by Clark. On those earlier occasions, she had asked him if he knew where she could get something to party with and he said "No." He appeared unapproachable. This time, defendant asked Villones what she wanted and she answered, "Whatever you can get" "maybe a gram." He asked her to go to an apartment and she told him she could not leave the casino. Defendant explained he needed to leave the casino, because he did not want to do anything on the reservation and possibly lose his gambling privileges. Defendant walked away, made a cell phone call and motioned for Nunes to join him. Nunes joined defendant and, in a few minutes, Nunes returned to Villones and told her the cost would be $80. Nunes also assured Villones the quality of defendant's drugs would be superior to the other drug dealer's. Nunes told Villones they had to walk to the store at the gas station to get the drugs and Villones reiterated she would not leave the casino. Nunes agreed to handle the transaction for Villones, for a payment of $1.00. Villones gave Nunes the money and Nunes and defendant left the casino together.
Defendant and Nunes went to a mini-mart near the gas station. A red car drove up and defendant went up to the car and spoke with the passenger, James Mayberry. Defendant and Mayberry went into the store together. Shortly thereafter, Mayberry left the store alone, got back in the car, and left the gas station. Defendant and Nunes left the store and walked back to the casino. On the way, defendant handed Nunes something, which she put in her pocket.
About 15 minutes after they left the casino, Nunes and defendant returned. Defendant walked past Villones and Nunes delivered 0.5 grams of methamphetamine to Villones.
Defendant was later arrested and interviewed by Officer Martin. Officer Martin asked defendant if he remembered participating in a drug sale with Nunes. Defendant replied, "I know she come up to--[Nunes] come up saying, `Could you hook, could you hook a friend up?'" Martin then asked defendant if, when he and Nunes went to the mini-mart, a red car had pulled in, "offloaded the dope" to him which he then handed to Nunes to make the deal with Villones. Defendant answered, "I think that's the way, I guess. I just give it to--what's her name?... She asked me and I gave it to her. I don't remember the rest of it. I don't know if I went back into the casino at that point."
Defendant and Mayberry testified that defendant wanted Mayberry to meet a girl. Mayberry's roommate, Jeremy Hughes, agreed to drive Mayberry to the casino in his red car. On his way to meet the girl, Mayberry stopped at the convenience store to buy cigarettes. They ran into defendant at the store and defendant told Mayberry the girl was in the store. They went in the store together and Mayberry bought cigarettes. Mayberry did not meet the girl because she was in the bathroom, but told defendant to give her his phone number. He wrote the number down and handed it to defendant. Defendant handed that number to Nunes on their walk back to the casino. Defendant believed Nunes had drugs on her, but denied that he had received any drugs or given Nunes any drugs. He remembered speaking with Villones and her referencing $80, but he walked away, not knowing what she was talking about.
Nunes had previously gotten drugs from defendant. That night, she asked defendant if he could procure $50 worth of methamphetamine and he said he could. The two went to the gas station; defendant met with someone, got methamphetamine, and gave it to her. He did not try to introduce her to a man.
Defendant was charged with, and a jury found him guilty of, one count of selling methamphetamine. He was sentenced to the midterm of three years in state prison.
Defendant appealed, contending the trial court improperly coerced the jury into reaching a verdict, the prosecutor engaged in misconduct during closing argument, the trial court abused its discretion in imposing a midterm sentence and punishing defendant for having gone to trial, and the abstract of judgment must be corrected to delineate the specific fines and fees imposed. In an opinion filed on January 13, 2010, we agreed with defendant on the latter point but otherwise affirmed the judgment. (People v. Brown (Jan. 13, 2010, C056510) [nonpub. opn.].)
On January 29, 2010, defendant filed a petition for rehearing, arguing he is entitled to the benefit of an amendment to section 4019 that went into effect on January 25, 2010, and provides for enhanced presentence conduct credits. We granted the petition and vacated our January 13, 2010, decision.
Defendant contends the trial court committed judicial misconduct "when it stated that argument, instructions and deliberations could begin and end after 5:00 p.m. on the second day of trial, gave a limited break, and made the jury skip dinner to accommodate this schedule." Noting the absence of an objection to the evening session, defendant argues an objection would have been futile and counsel's failure to object rendered his assistance ineffective.
The presentation of evidence concluded shortly before 4:50 p.m. after a single day of trial testimony. At that time, the court called the jury in and said, "Folks, let me chat with you for a minute. There are two things we can do. What we have left is for me to instruct you on the law. Then the lawyers make their statements and argument to you and you go to deliberate. I'm more than happy to go ahead here and have the early evening to do that. If it's agreeable with you, if [it] wouldn't cause some great problem for one of you folks. Anyway does anybody have [a] real strong problem just going ahead and seeing if we can conclude today? I see nobody is saying that. Yes sir?"
One of the jurors asked if there could be a little recess. The court said, "You bet?" The juror asked if it could be long enough to allow "time to get to Johnstonville and back?" The court clarified, "Twenty minutes?" The juror indicated that 20 minutes was "all I ask." The court replied, "At this hour that's a long time. Is there something you can be taken [sic] care of by phone call?" The juror answered, "No. That's all right. I will live. I will live." The court said, "Okay." The juror added, "I'm not going to be the party pooper." The court finished, "Okay. Well, that's good. I'm going to take a recess right now. We'll take a ten-minute recess. Please keep the admonition in mind.... We'll be in recess about ten minutes. When we come back I will give you the bulk of the instruction on the law. The attorneys will make their arguments to you. I will give the concluding instructions and you will retire to deliberate."
Neither party objected to having the session continue past 5:00 p.m. Neither party objected to the court's specific comments. Neither party requested a dinner break or discussion regarding a dinner break. The jury reconvened at 5:10 p.m. Following instruction and argument, the jury began deliberations at 6:10 p.m. and reached its verdict at 7:00 p.m.
Defendant contends this discussion by the court constituted misconduct in that it coerced the jury into reaching a verdict and "unmistakably signaled the court's belief that deliberations would be brief, a signal which, in light of the nature of the evidence, demonstrated the court's belief that defendant was guilty." There was no objection at the trial level to the court's offer to allow the jury to begin deliberations in the early evening or to the court's comments to the effect that they could see if the trial might be concluded that day. As such, the contention is forfeited. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038; People v. Anderson (1990) 52 Cal.3d 453, 469.)
In anticipation of that conclusion, defendant contends in the alternative that an objection would have been futile or counsel was ineffective for failure to object. We are not persuaded as to either contention.
There is nothing in the record that suggests an objection would have been futile. There is nothing to suggest the court had predetermined a course of action and would not have fairly considered an objection. In fact, given the discussion with the juror that is on the record, the suggestion is to the contrary. The court left the choice of whether to proceed with the jury. The court considered the request of a juror for a 20-minute break before beginning deliberations and concluded that, at such a late hour, that would be too long of a break. Further, the court's comments to the jury were not so suggestive or coercive that an admonition would not have cured any potential harm. We cannot find that a timely objection would have been futile.
Nor can we find that counsel's performance was ineffective. To establish ineffective assistance of counsel, defendant must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions... under the circumstances as they stood at the time that counsel acted or failed to act." (Ledesma, supra, 43 Cal.3d at p. 216.) We presume counsel's conduct fell within the wide range of reasonable professional assistance and tactical errors are generally not deemed reversible. (People v. Maury (2003) 30 Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.)
Counsel's failure to object to extending the trial day or to the comments the judge made to the jury did not constitute ineffective assistance of counsel. The court made no comment on the evidence or the witnesses. The court ultimately put the matter in the jurors' hands, asking if it was "agreeable" for them to stay. The comments did not put any time pressure on the jury, did not suggest the case was simple and would require only brief deliberation, and did not imply that the case only warranted desultory deliberation. (See People v. Gurule (2002) 28 Cal.4th 557, 632; People v. Anderson, supra, 52 Cal.3d at p. 469; People v. Keenan (1988) 46 Cal.3d 478, 534.) The court did nothing more than afford the jury the opportunity, if the jury wanted it, to see if it could conclude the trial that day.
Because there was no misconduct, there was nothing for defense counsel to properly object to. Accordingly, defendant cannot meet the first prong of the test for ineffective assistance of counsel--that counsel's performance fell below an objective ...