People v. Ward CA5 ( 2021 )

Filed 10/19/21 P. v. Ward CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081906
Plaintiff and Respondent,
(Super. Ct. No. BF174473A)
v.
BRANDY LEE WARD, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
Lindsey K. Terry, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Smith, J. and Snauffer, J.
Defendant Brandy Lee Ward stands convicted of possession of methamphetamine
for sale. On appeal, she contends her trial counsel was ineffective for eliciting harmful
testimony at trial. The People contend that defendant failed to prove that she suffered
any prejudice. We affirm.
PROCEDURAL SUMMARY
On May 13, 2019, the Kern County District Attorney filed an information
charging defendant with possession of methamphetamine for sale (Health & Saf. Code,
§ 11378; count 1). The information further alleged that defendant had served five prior
prison terms (Pen. Code, § 667.5, subd. (b)).1
On August 24, 2020, a jury found defendant guilty on count 1.
On September 30, 2020, the trial court sentenced defendant to a split sentence of
three years (the upper term) pursuant to Penal Code section 1170, subdivision (h).
Specifically, the court ordered defendant to serve one year four months in county jail and
one year eight months on mandatory supervision.
On October 8, 2020, defendant filed a notice of appeal.
FACTUAL SUMMARY
People’s Case
At about 2:30 p.m., on October 29, 2018, Kern County Sheriff’s Deputies James
Money, David Manriquez, and Dizander Guerrero, along with other deputies, arrived at a
residence in Oildale to execute a search warrant. Defendant’s name was on mail in the
mailbox and she was present in the residence. Once the deputies entered defendant’s
residence, she led Manriquez to her purse where he discovered two “clear plastic
baggie[s],” one containing 0.2 grams of methamphetamine and the other containing
24 grams of methamphetamine. Manriquez and Guerrero believed the substance in the
1 The trial court struck the prior prison term enhancement allegations.
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baggies to be methamphetamine based on their observations, training, and experience.
Defendant admitted that the methamphetamine belonged to her.
Manriquez had received training on identification of methamphetamine and he
opined that one- or two-tenths of a gram of methamphetamine is a single use or dose for
an average methamphetamine user. He further opined that “[a] typical user of
methamphetamine uses about two or three times a day ….” However, he acknowledged
that a heavy user of methamphetamine could consume up to a gram per day. He
therefore opined that a typical methamphetamine user could consume 24 grams of
methamphetamine in 80 to 120 days, but a heavy methamphetamine user could consume
24 grams of methamphetamine in as few as 24 days. Methamphetamine can be smoked,
snorted, injected, or dissolved in a liquid. Most commonly, it is smoked using a glass
pipe. Neither Manriquez nor Guerrero found a pipe or syringe in defendant’s residence
when executing the warrant.
Methamphetamine usually costs $10 per half gram. A price reduction for
methamphetamine was possible if purchasing in quantities at or above one-quarter of a
pound. The 24 grams of methamphetamine therefore had a street value of approximately
$480. Manriquez testified that methamphetamine users do not often stockpile
methamphetamine for personal use because it was so widely available. Manriquez
explained that people who purchase methamphetamine for personal use normally keep it
in small quantities and purchase weekly.
During execution of the warrant, Manriquez also discovered a digital scale in
defendant’s purse and a pay-owe sheet.2 He explained that people who sell
methamphetamine generally use a digital scale to weigh the methamphetamine and keep
a pay-owe sheet to account for the money owed by drug purchasers. Defendant did not
2 The record does not indicate from where in defendant’s residence the pay-owe
sheet was obtained.
3.
have clean, unused baggies that might suggest that she was selling methamphetamine.
Nor did Manriquez discover any used baggies with residue that might indicate that she
had been stockpiling methamphetamine for personal use.
In light of defendant’s possession of 24 grams of methamphetamine, a scale, and a
pay-owe sheet, Manriquez opined that defendant possessed the methamphetamine for
sale.
On cross-examination, defense counsel asked if Manriquez had “observe[d]
[defendant] ever engage in any sales of narcotics?” Manriquez answered that he had. He
was then asked if he observed defendant sell narcotics on October 29, 2018. He
answered that he had not. On redirect examination, the prosecutor asked Manriquez a
question regarding his observation of defendant having sold methamphetamine. The trial
court held a sidebar and the question was not answered.
Defendant’s Case
Defendant testified that on October 29, 2018, just after she woke up, sheriff’s
deputies kicked in her door. She told the deputies where her methamphetamine was
located because she “did[ not] want them to tear [her] house up” searching for it.
Defendant was a methamphetamine user, but she did not sell methamphetamine.
She told Manriquez that the methamphetamine was for personal use. She rarely went a
day without consuming methamphetamine. She testified that it took her about two weeks
to consume one ounce of methamphetamine. She had less than an ounce of
methamphetamine in her home on the date of the search. She usually bought
methamphetamine by the ounce because it was “just cheaper to buy it that way.” She
possessed a scale because she “want[ed] to make sure [she got] what [she was] paying
for.” The item that Manriquez identified as a pay-owe sheet was actually a score card for
an online game that she played with her friends. The figures on the sheet represented
money her friends had in their accounts, but not from drug sales.
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Defendant acknowledged that she had been convicted of felony crimes of moral
turpitude in the past.
DISCUSSION
Defendant contends that her trial counsel provided ineffective assistance of
counsel by asking Manriquez if he ever observed defendant sell narcotics. The People
respond that, even assuming defense counsel’s performance was deficient, defendant
suffered no prejudice in light of the strength of the other evidence. We agree with the
People.
A. Additional Background
Defendant had previously been convicted of possession of methamphetamine for
sale in 2000, 2002, 2008, and 2014. The trial court indicated that it would permit the
prosecutor to impeach defendant using 2002, 2008, and 2014 convictions if she testified.
However, it required the convictions to be sanitized and permitted the prosecutor only to
ask if defendant had been convicted of “a felony crime of moral turpitude.” The court
cautioned, however, if defendant opened the door—for instance, by suggesting that she
had never sold methamphetamine—it might permit the prosecutor to present evidence of
her prior convictions for sale of methamphetamine.
At trial, on cross-examination of Manriquez, defendant’s counsel asked a series of
questions regarding the scale and pay-owe sheet found in defendant’s residence. He then
asked, “Did you observe [defendant] ever engage in any sales of narcotics?” Manriquez
answered, “Yes.” After a sidebar, defense counsel asked if Manriquez had observed
defendant sell narcotics on October 29, 2018. He responded, “On that day, no.”
On redirect examination of Manriquez, the prosecutor’s first question was
“Deputy Manriquez, just to be clear that when defense asked you if you saw the
defendant engage in sales of methamphetamine, you said yes, right?” The trial court held
a sidebar and the witness was not permitted to answer.
5.
On cross-examination of defendant, the prosecutor requested a sidebar at which he
asked the court if he was permitted to ask the defendant about her 2014 conviction for
possession of methamphetamine for sale to impeach her testimony that she was not
selling methamphetamine on October 29, 2018. The trial court ruled that the evidence
was inadmissible character evidence and unduly prejudicial pursuant to Evidence Code
section 352. Later in the cross-examination, the prosecutor again requested a sidebar and
confirmed that the trial court would not permit him to ask about her prior sales of
methamphetamine. The court confirmed that no such questions were permitted.
During the prosecutor’s rebuttal closing argument, he told the jury, “Deputy
Manriquez saw the defendant sell meth at a prior occasion.” Defense counsel objected,
arguing that the trial court had prohibited evidence regarding defendant’s prior
convictions for possession of methamphetamine for sale. The trial court responded that
the prosecutor was “talking about the testimony where [Manriquez] said presumably on a
prior occasion he had seen [defendant] sell meth.” The trial court therefore overruled the
objection because Manriquez’s statement was admitted into evidence. The prosecutor
then immediately repeated that Manriquez had seen defendant sell methamphetamine on
a prior occasion.
B. Analysis
To establish ineffective assistance of counsel defendant must show (1) counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was prejudicial. (Strickland
v. Washington (1984) 466 U.S. 668, 687–688; People v. Ledesma (1987) 43 Cal.3d 171,
216–217.) “ ‘Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.”
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
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rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.]’ ” (People v. Lopez
(2008) 42 Cal.4th 960, 966.) To establish prejudice, defendant must make a showing
“sufficient to undermine confidence in the outcome” that but for counsel’s errors there is
a reasonable probability that the result of the proceeding would have been different.
(Strickland, at p. 694; Ledesma, at pp. 217–218.) We “need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. … If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, … that course should
be followed.” (Strickland, at p. 697.)
Here, there is no reasonable probability that the outcome would have been
different had defense counsel not elicited the testimony that Manriquez had seen
defendant sell narcotics on a prior occasion. Aside from Manriquez’s statement that he
had seen defendant sell narcotics on a date other than October 29, 2018, evidence was
admitted that defendant possessed 24 grams of methamphetamine—which would take a
typical user of methamphetamine at least 80 days to consume; a digital scale; and what
appeared to be a pay-owe sheet, all of which suggested that defendant possessed the
methamphetamine for sale. Defendant’s explanations that she weighed the
methamphetamine when she purchased it and that the apparent pay-owe sheet was
actually a record of online gaming were not credible, especially in light of her prior
convictions for crimes of moral turpitude, her lack of a detailed explanation for how the
apparent pay-owe sheet was used, and the fact that the scale was found in the same purse
as the methamphetamine. Manriquez and Guerrero also both testified that no pipes,
syringes, or other indicia of methamphetamine use were found in the search of
defendant’s residence, tending to indicate that defendant’s possession was not for
personal use. The evidence before the jury did not, as defendant contends, present a close
case. Although the evidence of defendant’s intent to sell methamphetamine was
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circumstantial, it overwhelmingly led to the conclusion that defendant possessed the
methamphetamine for the purpose of sales.
Defendant therefore suffered no prejudice from her counsel eliciting testimony
that she had sold methamphetamine on a prior occasion.
DISPOSITION
The judgment is affirmed.
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