People v. Oliva CA2/1

Filed 12/16/20 P. v. Oliva CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B302253
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476819)
v.
MARIO RAMOS OLIVA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ray G. Jurado, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Mario Ramos Oliva was convicted of two counts
of possession for sale of methamphetamine that arose out of two
separate encounters with the police, and was sentenced to a
county jail term of 16 months on the first count and a concurrent
jail term of the same duration on the second count. To establish
liability on the first count, the People introduced into evidence a
forensic report indicating that the substance recovered from
Oliva contained methamphetamine. Although the criminalist
who authored the report did not testify at trial, Oliva did not
object to the admission of the report, nor did he object to another
criminalist’s testimony discussing this report.
On appeal, Oliva seeks an order reversing the conviction on
the first count of possession for sale of methamphetamine on the
ground that the People violated his Sixth Amendment right to
confrontation by presenting evidence of the report without calling
its author as a witness at trial. Oliva further argues that to the
extent he forfeited this claim of error, we should still consider
Oliva’s confrontation clause claim because his trial attorney’s
failure to object to this evidence constituted ineffective assistance
of counsel.
We reject Oliva’s arguments. First, we conclude that Oliva
forfeited his confrontation clause claim by failing to raise it
below. Second, Oliva is not entitled to relief on his ineffective
assistance claim because he fails to establish that, without the
benefit of the nontestifying criminalist’s forensic analysis, there
is a reasonable probability the jury would not have found that
Oliva possessed methamphetamine for the purpose of the first
count of possession of this controlled substance for sale. We thus
affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts that are relevant to this
appeal.
On June 14, 2019, the People filed an information charging
Oliva with two counts of possession for sale of a controlled
substance (methamphetamine) in violation of Health and Safety
Code section 11378. Count 1 alleged that Oliva perpetrated this
offense on or about April 7, 2019, and count 2 alleged he
committed this offense on or about May 13, 2019. Oliva pleaded
not guilty to both counts.
At trial, the People offered evidence suggesting that on two
separate occasions, Oliva possessed several grams of
methamphetamine.1
On April 7, 2019, Officer John Padilla of the Los Angeles
Police Department (LAPD) responded to a call at a location at
43rd Place regarding a prowler. There were four sheds on that
property, one of which was being rented by Oliva. After
Officer Padilla arrived at the premises, Oliva exited his shed.
Officer Padilla then asked Oliva if he had any drugs on him, and
Oliva replied that he did not.
After receiving consent from Oliva to search his person,
Officer Padilla recovered from Oliva’s pants pocket a plastic bag
containing a large amount of clear crystal-like substance
resembling methamphetamine. The substance was broken into
pieces and weighed 5.48 grams with packaging and 4.88 grams
without packaging. Oliva stated that the substance belonged to a
friend. Officers thereafter searched Oliva’s shed, and recovered
1 The next five paragraphs summarize evidence the People
presented at trial.
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four glass pipes from a table inside the structure, each of which
contained a white substance resembling methamphetamine.
On May 13, 2019, the police returned to the location at
43rd Place and arrested Oliva on an outstanding warrant. On a
table located inside Oliva’s shed, the police discovered pipes with
white residue on them, a scale with white residue thereon,
several prepackaged bags of suspected narcotics, an unpackaged
substance the police suspected was methamphetamine, a clear
piece of plastic containing what the police also suspected was
methamphetamine that weighed 4.39 grams, a straw with white
residue on it, and 47 empty bags that were identical to the bags
that contained the suspected methamphetamine. These items
were recovered from the side of the table at which Oliva had been
sitting before he was apprehended.
At trial, LAPD criminalist Milena Srbova provided
testimony regarding the chemical composition of the items seized
from Oliva. Using a Fourier-transform infrared spectroscopy
(FTIR) test, Srbova analyzed the white crystalline material
contained within a plastic bindle that police had recovered from
Oliva on May 13, 2019. Srbova testified the test revealed that
this substance contained methamphetamine.
Although Srbova did not personally analyze the contents of
the plastic bindle that police seized from Oliva on April 7, 2019,
she did authenticate a forensic report relating thereto that was
authored by Srbova’s coworker, Kevin Hollomon. The report
indicates that on April 9, 2019, Hollomon used the FTIR test to
analyze the 4.88-gram crystalline material found within the
bindle, and concluded that it contained methamphetamine. The
report includes the following text: “I, the undersigned analyst, as
a Criminalist employed by the Los Angeles Police Department,
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am prepared to testify to the information provided in this report,”
and was signed by Hollomon, technical reviewer A. Mazzola, and
administrative reviewer W. Tsega. Oliva’s trial counsel did not
object to the admission of the forensic report or Srbova’s
testimony relating thereto.
At trial, Oliva testified in his own defense. Oliva claimed
that in April and May 2019, he had supported himself with
disability checks and his wife contributed to the family’s income.
Oliva insisted that he did not sell drugs.
Oliva asserted that on April 7, 2019, a male acquaintance
(Jairo) and a female acquaintance (Leslie) accompanied him to
the shed so that he could show them a tool that he intended to
sell to them. According to Oliva, he “believe[d]” that the bag the
police found in his pants pocket contained methamphetamine.
Oliva claimed that when the police arrived, Leslie gave this bag
to him and Oliva “put it on” him because he did not think the
police would search his person. Oliva further asserted that
before the police arrived, Leslie told him that she had some
methamphetamine on her.2 Oliva also testified that the four
2 Although Oliva’s trial testimony was not altogether clear,
it appears he was claiming that Leslie: (1) gave Oliva the clear
crystal-like substance resembling methamphetamine that the
police found on him on April 7, 2019, and (2) told Oliva that this
substance was methamphetamine before she gave it to him. For
instance, Oliva testified that on April 7, 2019, he “told [the police]
that the young lady . . . had given the drugs to [him].” Oliva’s
appellate counsel has adopted this interpretation of Oliva’s trial
testimony as well. According to Oliva’s opening brief, he testified
that “[t]he woman who was visiting gave [Oliva] the bag, which
he believed contained methamphetamine, that police found in his
pocket on April 7,” and Oliva “took the suspected
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glass pipes the police recovered from the shed belonged to his two
visiting acquaintances and certain other persons, but not to him.
Additionally, Oliva claimed that the methamphetamine
and narcotics paraphernalia found in his shed on May 13, 2019
did not belong to him; rather, Oliva suggested in his testimony
that these items actually belonged to several visitors.
The jury found Oliva guilty of the two counts of possession
for sale of a controlled substance (methamphetamine) with which
he had been charged. On October 31, 2019, the trial court
sentenced Oliva to 16 months’ imprisonment in county jail on
count 1, and a concurrent term of 16 months’ imprisonment in
county jail on count 2. Oliva timely appealed the judgment.
DISCUSSION
A. Oliva Forfeited His Confrontation Clause Claim
“As a general rule, . . . ‘ “ ‘[a]n appellate court will
ordinarily not consider procedural defects or erroneous rulings, in
connection with relief sought or defenses asserted, where an
objection could have been, but was not, presented to the lower
court . . . .’ ” ’ [Citation.] ‘ “ ‘No procedural principle is more
familiar to this Court than that a constitutional right,’ or a right
of any other sort, ‘may be forfeited in criminal as well as civil
cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.’
[Citation.]” ’ [Citation.]” (People v. Leonard (2014)
228 Cal.App.4th 465, 481–482 (Leonard).)
methamphetamine because he did not believe the police would
search him but believed that they would search his friend.”
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Oliva concedes that his “trial counsel failed to object to
either Srbova’s surrogate testimony regarding Hollomon’s
conclusion or the introduction into evidence of Hollomon’s report.”
Oliva also concedes that his confrontation clause claim is
predicated on appellate cases that were decided prior to his trial
in 2019. (Citing Melendez-Diaz v. Massachusetts (2009) 557 U.S.
305; Bullcoming v. New Mexico (2011) 564 U.S. 647; Williams v.
Illinois (2012) 567 U.S. 50; People v. Dungo (2012) 55 Cal.4th
608; People v. Lopez (2012) 55 Cal.4th 569.)
Under these circumstances, Oliva’s failure to raise his
confrontation clause objection at trial amounts to a forfeiture of
that claim on appeal. (See People v. Redd (2010) 48 Cal.4th 691,
730 [holding that a defendant forfeited a confrontation
clause claim by failing to raise it at trial]; Leonard, supra,
228 Cal.App.4th at p. 481 [noting that an appellate claim of error
is generally forfeited when the “ ‘ “ ‘objection could have been, but
was not, presented to the lower court[,]’ ” ’ ” italics added].)
B. Oliva’s Ineffective Assistance of Counsel Claim Fails
Notwithstanding a defendant’s forfeiture of a claim of error,
an appellate court may still grant relief if trial counsel’s failure to
preserve that claim constituted ineffective assistance. (See
People v. Espiritu (2011) 199 Cal.App.4th 718, 725–726.) “ ‘An
ineffective assistance claim has two components: A [defendant]
must show that counsel’s performance was deficient, and that the
deficiency prejudiced the defense.’ [Citations.]” (See In re Gay
(2020) 8 Cal.5th 1059, 1073 (Gay).) “To obtain relief, [the
defendant] must demonstrate ‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.’ ”
(Id. at p. 1086.)
Here, Oliva argues that his trial counsel’s failure to object
to: (a) Srbova’s testimony regarding Hollomon’s analysis and
(b) the introduction of Hollomon’s report constituted deficient
performance because “[t]here could be ‘ “no conceivable tactical
purpose” ’ for failing to object . . . .” With regard to prejudice,
Oliva claims there is a reasonable probability that the jury
would not have found that he possessed methamphetamine on
April 7, 2019 if his trial counsel had objected on confrontation
clause grounds to Hollomon’s report and Srbova’s testimony
relating thereto.
Oliva contends that “Hollomon’s report and conclusion were
the primary piece [sic] of evidence used by the prosecution to
support the essential fact that [Oliva] possessed
methamphetamine on April 7th,” “the fact that police recovered a
substance ‘resembling methamphetamine’ [is not] sufficient to
prove that the substance recovered was, indeed,
methamphetamine,” and evidence that Oliva possessed for sale
methamphetamine on other dates could not be offered to show
that he had a propensity to do so.
As discussed in more detail below, we reject Oliva’s claim of
ineffective assistance because he has failed to establish a
reasonable probability that if Hollomon’s report and Srbova’s
testimony relating thereto had been excluded, the jury would not
have found that Oliva possessed methamphetamine on
April 7, 2019.
Officer Padilla testified he had training and experience
concerning the packaging and sales of narcotics, the
transportation of narcotics, and the symptoms of ingesting
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narcotics. Officer Padilla also testified that he received training
on “what different types of drugs look like.”
Officer Padilla testified that the substance he found in
Oliva’s pants pocket on that date was a “clear crystal like
substance resembling methamphetamine.” Officer Padilla also
opined that he observed other circumstances indicating that this
substance was a narcotic that Oliva possessed for the purpose of
sale, including the large amount of the suspected narcotic that
Oliva possessed (i.e., 4.88 net grams), the fact that this crystal-
like substance was broken up into pieces and thus ready for
individual sales, and the fact that Oliva had money on his person
even though he admitted to being unemployed. In addition,
Officer Padilla testified that the four glass pipes he recovered
from Oliva’s shed on April 7, 2019 had a white residue that
“appear[ed] to be consistent with methamphetamine.” Given
Officer Padilla’s testimony that Oliva had emerged from the shed
shortly before the officer found the bag in Oliva’s pocket, the
presence of white residue on the glass pipes further supports the
jury’s finding that the substance in the bag was
methamphetamine.
At trial, the prosecutor asked Officer Cesar Arambula
whether Oliva had made “any admissions to [Officer Arambula]
in regard to who owned the methamphetamine that was
recovered” on April 7, 2019, and Officer Arambula responded that
Oliva stated he “receives it from a friend.” Officer Arambula’s
testimony could be interpreted reasonably to mean that Oliva
admitted to possessing methamphetamine on April 7th
irrespective of whether his friend gave it to him initially. This
interpretation is consistent with Oliva’s testimony that on
April 7, 2019, he told the police that his female acquaintance
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(Leslie) “had given the drugs to” him. Although Oliva’s appellate
counsel asserts her client merely “admitted that, at some time, he
sold methamphetamine[, which] does not prove beyond a
reasonable doubt that the substance he possessed on April 7th
was methamphetamine,” we adopt the aforementioned
construction of Officer Arambula’s testimony, as we must,
because it is reasonable and it supports the judgment of
conviction. (See People v. Giordano (2007) 42 Cal.4th 644, 666
[“On appeal, we presume that a judgment or order of the trial
court is correct, ‘ “[a]ll intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.” ’ [Citation.]”; 22B
Cal.Jur.3d (2017) Criminal Law: Posttrial Proceedings, § 937
[“[A]ll intendments and presumptions are indulged to support the
trial court on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle
of appellate practice but an ingredient of the constitutional
doctrine of reversible error,” fn. omitted].)
Moreover, as discussed in the Factual and Procedural
Background, Oliva testified that on April 7, 2019, Leslie told
Oliva she had a bag of methamphetamine, Oliva took the bag
from her so that the police would not find it on her, and the police
found the bag in Oliva’s pants pocket. (See fn. 2 and its
accompanying paragraph, ante.) Oliva does not contend that he
would have declined to testify or offered different testimony on
this point if evidence of Hollomon’s analysis had not been
admitted at trial. These omissions are crucial because Oliva
bears the burden of establishing prejudice. (See Gay, supra,
8 Cal.5th at p. 1086.)
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In fact, Oliva’s trial counsel admitted during closing
argument that Oliva was “guilty of two counts of simple
possession” of methamphetamine, and argued that “even though
it wasn’t [Oliva’s] methamphetamine and he wasn’t going to do
anything with it, he took it [on April 7, 2019], as he told us, from
the woman who was in his garage and he put it in his pocket so
that the police wouldn’t find it.”
In sum, given Padilla’s testimony regarding the
circumstances of Oliva’s arrest and the search of his shed on
April 7, 2019 and the admissions Oliva made to the police and at
trial, there is no reasonable probability that even if Hollomon’s
report and Srbova’s testimony thereon were excluded, the jury
would not have found that the substance recovered from Oliva’s
person was methamphetamine. (See U.S. v. Wright (6th Cir.
1994) 16 F.3d 1429, 1440–1441 [“To our knowledge, no court has
held that scientific identification of a substance is an absolute
prerequisite to conviction for a drug-related offense, and we too
are unwilling to announce such a rule. . . . . So long as the
government produces sufficient evidence, direct or
circumstantial, from which the jury is able to identify the
substance beyond a reasonable doubt, the lack of scientific
evidence is not objectionable.”].)
Because Oliva has not demonstrated that he suffered
prejudice from trial counsel’s alleged deficient performance, his
claim of ineffective assistance fails. (See People v. Mesa (2006)
144 Cal.App.4th 1000, 1008 [“In considering a claim of ineffective
assistance of counsel, it is not necessary to 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
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claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” ’ ”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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