Filed 11/19/13 P. v. Lyons CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C069222

                   Plaintiff and Respondent,                                             (Super. Ct. No.
                                                                                         CR-F-10-4307)
         v.

BART LORAN LYONS,

                   Defendant and Appellant.




         Defendant Bart Loran Lyons contends the prosecutor in his trial for possessing a
controlled substance for sale and other drug offenses committed misconduct when, during
cross-examination, he asked defendant’s expert witness about defendant’s prior arrests
and convictions for possession and transportation for sale. Defendant admits his counsel
did not object. Having forfeited a direct challenge to this issue, defendant claims he
suffered ineffective assistance of counsel. We disagree, and, except to order the abstract
of judgment amended to record the correct amount of presentence credit, we affirm the
judgment.



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                        FACTS AND PROCEDURAL HISTORY
       A jury convicted defendant of transportation of a controlled substance (Health &
Saf. Code, § 11379, subd. (a)), possession of a controlled substance for sale (Health &
Saf. Code, § 11378), and possession of controlled substance paraphernalia (Health & Saf.
Code, § 11364), on the following facts:
       Police officers searching defendant’s vehicle following a traffic stop found two
bags of narcotics, one under the driver’s side floor mat and the other in the console
between the two front seats. They found four hypodermic syringes and a “glass narcotic
smoking pipe” in the trunk, and a second pipe near the center console. They found no
scales or pay-owe sheets.
       At the scene, defendant said he thought he had three bags of methamphetamine.
He said he could not go back to jail, and that “there must be something he could do to
help us.” At the police department, defendant said the drugs were “extremely good,
extremely pure” narcotics.
       In the booking room, officers found a third bag of narcotics on the floor next to
defendant. Defendant said it had fallen out of his pants. He had considered smuggling it
into jail and “making money off of it,” but he decided to tell the police about it instead.
       The three bags contained a total of 11.87 grams of a substance containing
methamphetamine, divided in amounts of 9.08 grams, 2.45 grams, and 0.34 grams.
       At trial, the principal contested issue was whether defendant possessed the drugs
for sale. Yolo County Sheriff’s Deputy Gary Hallenbeck testified as an expert for the
prosecution. He said one-tenth of a gram of methamphetamine was an average dose or
common dosing unit. In his opinion, a person who possessed 12 grams of
methamphetamine, or roughly one-half ounce, divided into three bags of different
amounts, who bragged about the drug’s quality, and who stated his intention of selling
some of it in jail, was a person who possessed the drug with the intent to sell. He held the



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same opinion even if the person who possessed the methamphetamine was an addict and
the police found no scales.
       Dr. Donald Siggins, a licensed psychotherapist, testified as an expert witness for
the defense. He disagreed with Deputy Hallenbeck that the possession of 12 grams of
methamphetamine indicated the person intended to sell. He believed 12 grams could be
possessed for personal use. He has clients who use four or five grams of
methamphetamine a day. In his opinion, the more a person tolerates a drug, the more that
person is addicted. He believed defendant had a severe long-term addiction to
methamphetamine, and that he was the type of addict who could easily use 12.5 grams
for his personal use.
       The trial court sentenced defendant to 12 years in state prison, calculated as
follows: the upper term of four years on the transportation conviction, plus an additional
three years each for two enhancements for prior felony drug convictions (Health & Saf.
Code, § 11370.2, subd. (c)), plus one year each for two enhancements for prior prison
terms (Pen. Code, § 667.5, subd. (b)). The court stayed imposition of a three-year prison
sentence on the possession for sale conviction, and it imposed a concurrent 180-day jail
term on the drug paraphernalia conviction.
                                       DISCUSSION
                                              I
                              Ineffective Assistance of Counsel
       On cross-examination, the prosecutor asked Dr. Siggins whether he had spoken
with defendant about a prior arrest for possession for sale and a prior conviction in that
case for transportation for sale. Defendant claims the prosecutor committed misconduct
by his questioning. Defense counsel did not object to the questions, but defendant asserts
we may still hear the issue because an admonition by the court could not have cured the
alleged error. Alternatively, he claims counsel rendered ineffective assistance by failing
to object. We conclude defendant has forfeited a direct challenge on this issue, and there

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is no showing an admonition would not have cured any error. We thus address the claim
of ineffective assistance, and we reject it.
A.     Additional background information
       Before trial, defendant moved to exclude “any mention of any prior uncharged
acts and/or arrests” incurred by him. Hearing this motion, the trial court asked the
prosecutor if there were any uncharged acts or arrests “that’s anticipated.” The
prosecutor knew of none. With that understanding, the trial court granted defendant’s
motion but reserved jurisdiction to reconsider it. The court said it did not “know to what
extent -- obviously if you [defense counsel] bring anything up . . . or your expert does,
obviously that might be fair game. We will see how that goes.”
       In an Evidence Code section 402 hearing, Dr. Siggins testified defendant was a
long-term drug addict, and thus the amount of methamphetamine he possessed did not, by
itself, determine whether he possessed it for sale. The prosecutor, exploring the basis for
that opinion, asked Dr. Siggins whether he had reviewed defendant’s record. This
dialogue then occurred:
       “A     I reviewed [defendant’s] record through interviewing [defendant] to the
degree that he had been charged with drug offenses in the past and that he had many
attempts at rehabilitation.
       “Q     Did you talk to him about -- so did he tell you that he had been arrested for
possession for sale before?
       “A     Yes, sir.
       “Q     Did he tell you when he had been arrested for possession for sale?
       “A     I don’t’ recall exactly the date that he mentioned.
       “Q     The fact that he has been arrested for possession for sale before didn’t clue
you in that this might be somebody who sells drugs? [¶] . . . [¶]
       “[A] It was certainly -- it was certainly a part of the evidence that I looked at, but
I wasn’t, you know, hired to ascertain if he had possessed an amount for sales, you know,

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in that case. [¶] What I was looking at was very specifically whether or not the amount
of drugs that he was holding was indicative of a pattern or a holding for sales in this
instant case.”
       At trial, Dr. Siggins testified as an expert as summarized above. On cross-
examination, the prosecutor asked Dr. Siggins if he had spoken with defendant about why
he was arrested in this case. Dr. Siggins had spoken with him about that, as well as his
drug abuse history. This dialogue followed:
       “Q        Okay. And talking to him about his drug abuse history, you talked to him
about the fact that he’s been arrested for drugs before; correct?
       “A        Yes, sir.
       “Q        You talked about how he has been arrested for possession for sale of
methamphetamine before; correct?
       “A        Yes, sir.
       “Q        And how he was convicted in that case of transportation for sale; correct?
       “A        Yes, sir.”
       Defense counsel did not object to this testimony.
       A few minutes later, the prosecutor summarized Dr. Siggins’s testimony:
       “Q        It is your testimony today that based on your interview with [defendant],
that twelve grams, in and of itself, is not enough to say that it is possessed for sale?
       “A        That’s correct.”
B.     Analysis
       A defendant who fails to object to prosecutorial misconduct at trial and request a
jury admonition forfeits the claim of error on appeal. (People v. Stanley (2006) 39
Cal.4th 913, 952.) Defendant admits his attorney did not object to the questioning or
seek an admonition, but he asserts we may still consider the issue because no jury
admonition would have cured the harm caused by the alleged error. (People v. Dykes
(2009) 46 Cal.4th 731, 760.) We disagree.

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       There is no evidence this trial was so poisoned with misconduct or
mismanagement that a jury could not have responded to an admonition to disregard the
prosecutor’s questions and Dr. Siggins’s answers. (See People v. Hill (1998) 17 Cal.4th
800, 820-822 [prosecutor’s misconduct and trial court’s errors rendered objections
futile].) Even defendant admits that an admonition “would have largely ameliorated the
prosecutor’s misconduct and further demonstrated that the prosecutor’s implied
representations concerning [defendant’s] criminal history were not trustworthy.”
Because defense counsel did not object or seek an admonition, and because an
admonition would have cured any alleged harm, defendant has forfeited this ground of
appeal.
       We thus address defendant’s contention that his trial counsel rendered ineffective
assistance by failing to object to the prosecutor’s questioning. “To establish
constitutionally inadequate representation, a defendant must demonstrate that (1)
counsel’s representation was deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms; and (2) counsel’s representation
subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for
counsel’s failings, the result would have been more favorable to the defendant.
[Citations.]” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
       Defendant has failed to show counsel rendered ineffective assistance. He has not
shown counsel’s representation was deficient. Any objection by counsel to the
prosecutor’s questioning would have been meritless, and “failure to make a meritless
objection does not constitute deficient performance.” (People v. Mitcham (1992) 1
Cal.4th 1027, 1080.) An expert witness may be “fully” cross-examined on “the matter
upon which his or her opinion is based and the reasons for his or her opinion.” (Evid.
Code, § 721, subd. (a).) So long as the material the expert reviewed and that forms a
basis of his opinion is reliable, “even matter that is ordinarily inadmissible can form the



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proper basis for an expert’s opinion testimony. [Citations.]” (People v. Gardeley (1996)
14 Cal.4th 605, 618, original italics.)
       If an expert examines a defendant’s prior record of misconduct, “he could be
cross-examined on it, without offending any constitutional guaranty, to determine
whether he took it into account in forming an opinion . . . .” (People v. Osband (1996) 13
Cal.4th 622, 712 [cross-examination of expert based on his review of defendant’s
juvenile record permitted].)
       Dr. Siggins testified he reviewed defendant’s prior drug abuse history, including
his arrest and conviction history. The prosecutor was thus free to ask Dr. Siggins
whether he took these items into account in forming his opinion. No ineffective
representation occurred, because an objection to the prosecutor’s questions would have
been without merit.
       Whether the prosecutor misstated defendant’s criminal history by stating his arrest
for possession for sale resulted in a conviction of transportation for sale is not clear.
According to the probation report, defendant has not been previously convicted of
transportation for sale under Health and Safety Code section 11379, subdivision (b), but
he has been convicted twice for transporting, importing or selling under Health and
Safety Code section 11379, subdivision (a). Defendant was sentenced to state prison for
each of those convictions. Had defendant on those occasions transported for his personal
use, he could not have been incarcerated. (Pen. Code, §§ 1210, subd. (a), 1210.1, subd.
(a).) He thus may have been convicted for a drug offense that involved transporting and
selling. Defendant has not shown the prosecutor misstated the truth or that his counsel
should have objected to the prosecutor’s questions. As a result, counsel’s failure to
object was not deficient representation.
       Defendant has also failed to show he was prejudiced by the prosecutor’s questions.
It is not reasonably probable defendant would have obtained a more favorable result had
the prosecutor not asked the questions or had defense counsel objected and sought an

                                               7
admonition. There was no doubt defendant was guilty of transporting a controlled
substance and possessing drug paraphernalia, and the evidence showing he possessed a
controlled substance for sale was very strong. Defendant possessed three separate bags
of methamphetamine weighing nearly 12 grams. Only one-tenth of a gram is a common
useable amount; defendant thus possessed the equivalent of 120 doses. He bragged to
officers about the drugs’ purity and quality. He said he had considered smuggling some
of the drugs into jail so he could sell them there. This was more than sufficient evidence
to support defendant’s conviction of possession for sale, and an objection to the
prosecutor’s questions would not have disturbed the import of this evidence and resulted
in a more favorable outcome. Indeed, the jury heard Dr. Siggins testify that, in his expert
opinion, defendant’s possessing 12 grams was insufficient to constitute possession for
sale. A sustained objection to the prosecutor’s questions would not have changed the
jury’s verdict. Defendant did not suffer ineffective assistance.
                                             II
                                   Abstract of Judgment
       The abstract of judgment states the trial court awarded defendant a total of 288
days of credit for time served; 144 days of custody credit and 144 days of conduct credit.
After the abstract was filed, however, the trial court recalculated the presentence credit,
and it awarded defendant 326 days of custody credit and 326 days of conduct credit. We
order an amended abstract of judgment be filed that reflects the correct award. The trial
court’s order mistakenly states this totals 752 days. We rely on the court’s awards of
specific credit, and order defendant be awarded 652 days of presentence credit.
                                      DISPOSITION
       The trial court clerk is ordered to prepare an amended abstract of judgment
awarding defendant 326 days of custody credit, and 326 days of conduct credit, for a total




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of 652 days of presentence credit, and to forward the amended abstract to the Department
of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.



                                                       NICHOLSON             , Acting P. J.



We concur:



      ROBIE                 , J.



      MURRAY                , J.




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