IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
January 23, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HIEN GIA NGUYEN, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF10-1442)
The opinion of the court was delivered by: Butz , J.
P. v. Nguyen
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Hien Gia Nguyen of possessing and transporting cocaine base and possessing and transporting cocaine base for sale, along with two minor related offenses. (Former Health & Saf. Code, §§ 11350, subd. (a), 11351.5, 11352, subds. (a), (b).) Defendant also pleaded no contest to a charge of reckless driving with a controlled substance influence ("wet reckless"). (Veh. Code, former § 23103, § 23103.5.) Defendant was sentenced to nine years in state prison.
On appeal, defendant contends: (1) the prosecutor's cross-examination of defendant regarding another criminal matter pending against him in Santa Clara County amounted to prosecutorial misconduct, denying him due process; (2) his counsel ineffectively assisted him by failing to object throughout the prosecutor's improper cross-examination and by failing to request admonitions; and (3) clerical errors in the abstract of judgment and in the minute order for the sentencing hearing must be corrected to conform with the oral pronouncement of judgment. Except for these clerical errors- --which we direct the trial court to correct--we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2010, defendant was stopped by California Highway Patrol (CHP) Officer Lamberto Montano for using his cell phone while he was driving to Portland. Before defendant came to a stop, Montano noticed defendant reaching underneath the driver and passenger seats, and believed he was either concealing something or reaching for a weapon. A search revealed $3,000 in cash on defendant and a cigarette box in his car containing three rocks of cocaine, each about half the size of a golf ball, and totaling 20.77 grams.
Defendant was taken to the Woodland CHP office for a drug evaluation, where he admitted to smoking crack cocaine 30 minutes prior to being stopped by Officer Montano. Defendant explained that all the rock cocaine found in his possession was for his own use, and the large amount was meant to hold him over during his 10-day trip to Portland to visit his girlfriend. Defendant maintained that the $3,000 was to pay back his girlfriend who loaned him bail money.
Defendant was out on bail pending a drug case in Santa Clara County when he was arrested in the present matter. On January 5, 2010, defendant allegedly had sold an eighth of an ounce of rock cocaine to Officer Douglas Gerbrandt, an undercover San Jose police officer. The officer arranged to meet defendant again on January 27, 2010, to purchase an ounce of powder cocaine and a half-ounce of rock cocaine. Defendant was arrested in the Santa Clara matter when he arrived at the meeting place on January 27.
Defendant testified that his girlfriend visited from Portland when he was arrested in Santa Clara County and loaned him $7,000--of which defendant used $3,000 to retain an attorney to handle his Santa Clara case. After paying his attorney, defendant drove to Salinas to buy an ounce of crack cocaine, and the following day defendant embarked on his trip to Portland when he was arrested for the criminal charges at issue.
Defendant's appeal primarily involves the prosecution's introduction of evidence regarding defendant's Santa Clara drug charge.
I. The Santa Clara County Pending Criminal Matter
A. Prosecutorial Misconduct
Defendant alleges that the prosecutor's cross-examination of him regarding his pending Santa Clara County criminal matter constituted prosecutorial misconduct on counts 1 (transportation for sale of controlled substance) and 3 (possessing cocaine base for sale), denying him due process.
Before the start of trial, the trial court granted the prosecutor's motion in limine--pursuant to Evidence Code section 1101, subdivision (b)--to permit the Santa Clara drug charge to be introduced into evidence to prove an intent to sell for the drug charges at issue here. The defense's counter-motion to exclude this evidence because it would interfere with defendant's Fifth Amendment right to testify, was denied.
The Santa Clara drug charge evidence was provided through the testimony of Officer Gerbrandt, the San Jose undercover officer.
During subsequent cross-examination of defendant, the prosecutor asked him about the Santa Clara drug incident, whereupon defense counsel objected to the questions based on defendant's Fifth Amendment privilege. The trial court overruled the objection, but stated that defendant could choose not to answer if he wished to assert his Fifth Amendment right. The prosecution asked defendant about the Santa Clara incident seven more times with timely objections from defense counsel, some sustained and others overruled. Contrary to Officer Gerbrandt's testimony, defendant denied ever selling drugs in January 2010 or on any other occasion. Upon the seventh objection, the prosecutor explained he was using the Santa Clara incident to impeach defendant's testimony, causing the trial judge to call a recess to address the issue.
The trial court ruled that the line of questioning pertaining to whether defendant sold drugs in Santa Clara County in January 2010 could not proceed any further. Nevertheless, the prosecution continued to ask defendant whether he sold drugs to Officer Gerbrandt, which the defense counsel objected to on grounds that the question had been asked and answered. The court sustained the objection.
Defendant now contends the prosecutor's line of questioning on the Santa Clara County criminal matter constituted misconduct and a denial of due process.
A defendant may not complain of prosecutorial misconduct on appeal if he has failed at trial either to object timely to the conduct or to request a proper admonition. (People v. Hill (1998) 17 Cal.4th 800, 820.) Further, the objection must be specific as to the basis for the claim of prosecutorial misconduct. (People v. Pitts (1990) 223 Cal.App.3d 606, 691-692.) Because defense counsel did not specifically object to misconduct during the prosecutor's cross-examination of defendant, or request an admonition, that argument is forfeited.
B. Ineffective Assistance of Counsel
Defendant next contends his counsel was ineffective for failing to object throughout the prosecutor's improper cross-examination of defendant and for failing to request admonitions. To establish ineffective assistance of counsel, defendant must demonstrate that his counsel's performance was deficient and defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693-694, 695-696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Without reaching the issue of whether counsel's performance was deficient, we can simply assess whether defendant was prejudiced. (See People v. Vargas (2001) 91 Cal.App.4th 506, 536-537 [a court need not determine whether counsel's performance was deficient before examining the element of prejudice when that is the more efficient course for disposing of an ineffectiveness claim].)
To show prejudice, defendant has to prove that "there is a reasonable probability that, but for [his] counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698].) Defendant cannot make that showing here.
Any failings on defense counsel's part regarding the prosecutor's cross-examination of defendant on the Santa Clara drug matter, were not prejudicial for two reasons. First, the evidence of the Santa Clara drug matter was properly admitted through Officer Gerbrandt's testimony to prove defendant's intent to sell here. (Evid. Code, § 1101, subd. (b).) And, second, the record reflects ample evidence to find defendant guilty of transporting and possessing cocaine base for sale (counts 1 and 3)--given the large amounts of drugs and money involved here, and the properly admitted evidence of defendant's recent drug sale history from Officer Gerbrandt.
II. Clerical Errors in the Abstract of Judgment and Minute Order
Defendant contends that errors in the abstract of judgment and in the minute order for the sentencing hearing must be corrected to conform to the oral pronouncement of judgment. The People concede this point, and we agree.
There are two clerical errors in this case. First, the abstract of judgment and the relevant minute order incorrectly identify the code section for the count 2 conviction as former Health and Safety Code section 11352, subdivision (b), when the correct subdivision is (a). Second, the minute order for the sentencing hearing incorrectly sets forth the sentence for the count 1 conviction (transportation for sale; former Health & Saf. Code, § 11352, subd. (b)) as "9 years to life"; the correct sentence imposed for count 1 is nine years (the upper term).
Where there is a discrepancy between the oral pronouncement correctly rendering judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.) The pronouncement of judgment is a judicial function, while the entry into the minutes and the abstract of judgment is a clerical function; therefore, any inconsistency is presumed to be a clerical error. (Mesa, supra, 14 Cal.3d at p. 471.) When there is "an evident discrepancy between the abstract of judgment and the judgment that the reporter's transcript and the trial court's minute order reflect, the appellate court itself should order the trial court to correct the abstract of judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 188.) That is what we shall do.
The trial court is directed to (1) correct the abstract of judgment and the relevant minute order to reflect the count 2 conviction for Health and Safety Code section 11352, subdivision (a), and (2) correct the minute order for the sentencing hearing to reflect a sentence of nine years for the count 1 conviction for Health and Safety Code section 11352, subdivision (b). The trial court is also directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.*fn1
We concur: BLEASE , Acting P. J. DUARTE , J.