Filed 6/7/13 P. v. Papenhausen 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




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



THE PEOPLE,                                                                                  C071602

                   Plaintiff and Respondent,                                     (Super. Ct. No. F11-01081)

         v.

SCOTT EVERETT PAPENHAUSEN,

                   Defendant and Appellant.




         A jury convicted defendant Scott Everett Papenhausen of selling or furnishing
methamphetamine (Health & Saf. Code, § 11379, subd. (a); count I), possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) as a lesser included offense
to that charged in count II (possession for sale, Health & Saf. Code, § 11378), and
misdemeanor resisting (Pen. Code, § 148, subd. (a)(1)) as a lesser offense to that charged
in count III (resisting by means of threat or violence, Pen. Code, § 69). In connection
with count II, the jury found that defendant personally used a deadly or dangerous
weapon, to wit, a ceramic lamp (Pen. Code, § 12022, subd. (b)(1)). In bifurcated
proceedings, defendant admitted two prior prison term allegations (Pen. Code, § 667.5,



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subd. (b)) and a prior drug conviction allegation (Health & Saf. Code, § 11370.2, subd.
(c)).
        Sentenced to state prison, defendant appeals. He contends counsel rendered
ineffective assistance and the trial court abused its discretion in sentencing. We will
affirm the judgment. We do find errors in the abstract of judgment which must be
corrected. Relevant facts will be recounted in our discussion of defendant’s contentions.
                                                I
        Defendant contends counsel rendered ineffective assistance at the suppression
hearing because he failed to call Vincent Villany to testify that the officers did not have
his consent to enter his residence to arrest defendant on a misdemeanor arrest warrant.
Had Villany so testified at the suppression hearing, defendant argues that his arrest would
have been deemed invalid, the methamphetamine found during the search incident to his
arrest would have been suppressed as fruit of the poisonous tree, and the charges would
have been dismissed. The People argue defense counsel had a valid tactical reason not to
call Villany to testify at the suppression hearing. We conclude that the record is
inadequate to evaluate whether counsel’s performance was deficient in not calling
Villany to testify at the suppression motion.
                                       Background
        Defendant represented himself at the preliminary hearing on February 1, 2012,
when Deputy Sheriff Steve Clark testified that in his presence, Deputy Sheriff Phillip
Shannon got permission from the homeowner (Vincent Villany) to enter the house.
Deputy Shannon testified at the hearing as well but was not asked about Villany’s
consent.
        Defendant represented himself at arraignment on February 16, 2012. Still
representing himself, defendant filed a motion to suppress, challenging his arrest and the
seizure of evidence incident to his arrest. On March 9, 2012, defendant requested
counsel and the trial court appointed Douglas Prouty.

                                                2
        On May 2, 2012, defense counsel filed a Pitchess1 motion attached to which were
the reports of Deputies Clark and Shannon. Deputy Clark stated in his report that Villany
consented to their entry to arrest defendant and Reatha Mercer on arrest warrants.
Deputy Shannon stated in his report that Villany at first did not want them to enter but
because defendant had lied to him about outstanding warrants, Villany consented.
        At the May 2, 2012, hearing on the Pitchess motion and defendant’s suppression
motion, defense counsel stated that defendant’s suppression motion was based on his
belief that the officers did not have sufficient cause even with the warrant. Deputy Clark
testified that he knew that there was an outstanding warrant for defendant’s arrest. On
December 26, 2011, the deputy received information from an anonymous informant that
defendant was located at a particular residence owned by Villany. Several hours later,
Deputies Clark and Shannon, and Reserve Deputy Brian Smith went to the residence and
contacted Villany. Villany explained that defendant was on the third floor and gave the
officers permission to enter. Reserve Deputy Smith stayed at the back of the house while
Deputies Clark and Shannon entered the exterior door to the second story. Deputy Clark
announced his presence but received no reply. Deputy Clark proceeded up the stairs to
the third floor loft and again announced his presence. Again there was no reply. Deputy
Clark found defendant on the floor in a closet. The deputy ordered defendant to put his
hands to his side, defendant refused, and the deputy pointed his Taser at defendant.
Defendant crawled towards a butcher knife two to three feet away and ignored the
deputy’s orders. Defendant stood up and grabbed a lamp. Deputy Clark grabbed
defendant and the two deputies then took defendant into custody.
        On cross-examination, Deputy Clark explained that he had known about the arrest
warrant for defendant for two to six months but had not seen defendant. When the




1   Pitchess v. Superior Court 11 Cal.3d 531 (Pitchess).

                                             3
deputies arrived at Villany’s residence, Deputy Shannon first spoke with Villany. Deputy
Clark approached them and heard Deputy Shannon “again” ask Villany for permission to
enter the residence. Defense counsel then inquired: “[I]sn’t it true that Mr. Villany
initially told Deputy Shannon he did not want you going into the residence?” (Italics
added.) Deputy Clark answered, “Not that I know of. I did not hear any of that -- [¶] . . .
[¶] . . . if that did happen.”
       Only Deputy Clark testified at the suppression hearing and the matter was
submitted without argument. The trial court denied the suppression motion.
       At trial which began on May 8, 2012, the defense called Villany to testify. Villany
explained that Mercer and defendant had been living in his home for about 45 days prior
to defendant’s arrest. Upon the deputies’ arrival, Villany claimed that he asked Deputy
Shannon whether he had a warrant to be on his property. Although the deputy claimed he
had one, he refused to show it to Villany and threatened to take him to jail if he did not
move out of the way. Another deputy was also present. Villany denied having been
asked for his consent to enter his residence. He did not tell them they could not enter.
Defense counsel asked what happened next. Villany responded, “They said, ‘Is Scott
here?’ I said, ‘Well, yes, he’s upstairs.’ And they said, ‘Is the door open, the door at the
top of the stairs?’ I says [sic], ‘yes, it’s always open.’ And they said, ‘Well, you go
first,’ [s]o I went up the stairs, opened the door, walked inside the second level, and I
said, ‘Scott,’ kind of loudly, twice, and got no reply. [¶] The deputies followed, pretty
much, right in back of me. And asked, ‘Well, where’s he staying?’ ‘Up there.’ And I
pointed to . . . the upper level. And the two deputies went on upstairs.” Villany opened
the second story door when the deputies asked him to do so. Villany denied that the
deputies announced their presence. Two deputies went up the stairs to the third level
while Villany stayed in the living room. After some noise and shouting, defendant, in
handcuffs, was escorted down the stairs by the deputies. Meanwhile, Villany pointed out
a downstairs bathroom where Mercer was found.

                                              4
       On cross-examination, Villany denied that Deputy Shannon told him that there
was an arrest warrant for defendant. Then, Villany admitted that Deputy Shannon
explained that he had a warrant for defendant. When Villany found out, he admitted that
he was “extremely mad.” Villany denied that he told the deputies to go ahead and arrest
defendant. Instead, Villany claimed that “[t]here was no conversation about warrants or
drugs at all, until they actually brought [defendant] down to the lower level.” Villany
then admitted that there was a conversation about a warrant when he first spoke with
Deputy Shannon. Villany stated that he asked Deputy Shannon if he had a warrant to be
on his property and that the deputy responded affirmatively but refused to show it to
Villany, claiming the deputy said, “ ‘we don’t need one, get out of the way or you’re
going right to jail.’ ” Villany had called the sheriff’s office to say the deputies acted in a
professional manner. He did not complain about Deputy Shannon’s conduct, explaining
he thought the deputy was “ ‘just excited at the time.’ ”
                                          Analysis
       To establish ineffective assistance of counsel, defendant must demonstrate that
counsel’s performance was deficient and that defendant suffered prejudice as a result.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693,
696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) To demonstrate
deficient performance, defendant “must show that trial counsel failed to act in a manner
to be expected of reasonably competent attorneys acting as diligent advocates.” (People
v. Pope (1979) 23 Cal.3d 412, 425.) “ ‘Reviewing courts will reverse convictions on the
ground of inadequate counsel only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for his act or omission.’ ” (People v. Zapien
(1993) 4 Cal.4th 929, 980.) Where “ ‘ “the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza

                                               5
Tello (1997) 15 Cal.4th 264, 266.) “[A] claim of ineffective assistance is more
appropriately made in a habeas corpus proceeding, in which the attorney has the
opportunity to explain the reasons for his or her conduct.” (People v. Wilson (1992)
3 Cal.4th 926, 936.)
       “Generally, . . . prejudice must be affirmatively proved.” (Ledesma, supra,
43 Cal.3d at p. 217.) To demonstrate prejudice, defendant must show that “ ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” (Id. at pp. 217-218; People v.
Williams (1997) 16 Cal.4th 153, 215.)
       Based on Villany’s testimony at trial and defense counsel’s questioning of Deputy
Clark at the suppression hearing, defendant claims and the People agree that it can be
reasonably inferred that counsel was aware, at the time of the suppression hearing, that
Villany did not voluntarily consent to the deputies’ entry into his home. We disagree.
       The record sheds no light on why defense counsel did not call Villany to testify at
the suppression hearing. We can fathom a satisfactory reason. Defense counsel’s
questioning of Deputy Clark at the suppression hearing whether Villany had “initially”
told Deputy Shannon that they were not allowed into the residence does not necessarily
mean that defense counsel was aware that Villany would testify at trial that he did not
voluntarily consent or that he had been threatened. Defense counsel’s questioning of
Deputy Clark at the suppression hearing reflects that he had read the report of Deputy
Shannon who had stated that Villany initially refused to consent but when he learned that
defendant had lied about not having any warrants, Villany then consented.2



2 At trial, Deputy Shannon explained that he contacted Villany when they first arrived
and that Villany did not consent to their entry. When Deputy Shannon explained that
defendant and Mercer both had outstanding warrants, Villany became upset and stated

                                              6
       Although Villany testified at trial that he had spoken to defense counsel two to
three weeks before trial began and that counsel had asked “some questions about what
happened that night,” Villany did not testify that he had explained to defense counsel at
that time or prior to the suppression hearing that he never consented to the deputies’ entry
into his home or that he had been threatened with jail if he did not move out of the way.
Also, Villany may have given defense counsel conflicting information. On cross-
examination, Villany gave inconsistent statements about his consent, first denying any
discussion with Deputy Shannon about a warrant and then admitting that he had asked
about a warrant. Villany also admitted that he was extremely mad when told that
defendant had an arrest warrant and that defendant had lied to Villany. Villany never
complained to the sheriff’s office about the deputies’ conduct but instead told the
sheriff’s office that the deputies had acted professionally.
       Defense counsel has not had an opportunity to explain his decision not to call
Villany at the suppression hearing. Defendant has failed to demonstrate on this record
that counsel’s performance was deficient. Defendant is relegated to filing a petition for a
writ of habeas corpus.
                                              II
       Defendant contends the trial court abused its discretion in imposing a consecutive
term for the subordinate offense of possession of methamphetamine to the principal
offense of furnishing or selling methamphetamine. We reject this contention.
                                        Background
       The search incident to defendant’s arrest revealed a digital scale with white
residue, a smoking pipe, and three cell phones in the room where defendant was found.
On his person, defendant had a baggie with 0.52 grams of methamphetamine and $369 in



that he had asked defendant before he moved in and defendant claimed he had no
warrants. Villany then consented to the deputies’ entry.

                                              7
cash. Mercer was found in the first floor bathroom. Prior to the deputies’ arrival, she had
smoked methamphetamine three or four times that day. Defendant had provided the
methamphetamine to her.3
       Prior to sentencing, both the prosecutor and defense counsel filed written
sentencing memorandums. Defense counsel argued for concurrent sentencing, arguing
the furnishing/selling to Mercer and his possession “all occurred not only in the same
place but in a relatively short time period as well. Those circumstances indicate the
single period of aberrant behavior which would indicate concurrent sentences would be
appropriate.” The prosecutor sought consecutive sentencing, arguing that the crimes
were predominantly independent of each other, were separate acts of violence, and were
committed at different times or separate places. The prosecutor also cited aggravating
factors in support of consecutive sentencing.
       At sentencing, the trial court stated that it had read the probation report and the
parties’ respective sentencing memorandums. Both defense counsel and the prosecutor
argued their respective positions on sentencing. Thereafter, the trial court imposed, inter
alia, the midterm of three years for furnishing/selling, the principal count, and a
consecutive one-third the midterm or eight months for possession of methamphetamine,
one of the subordinate counts, finding that the crimes were predominantly independent of
each other and committed at different times. The court stated: “I agree with you,
[defense counsel], that the probation report doesn’t accurately reflect what’s required by
the Court to assess whether or not it should be consecutive or concurrent. And what we
look at are the Rules under [California Rules of Court, rule] 4.425(a)(1), whether or not




3 Mercer also revealed that defendant bought an ounce of methamphetamine every 10
days and sold it to about 10 people. Text messages on defendant’s cell phone suggested
that he was selling methamphetamine. The jury acquitted defendant of possession for
sale but convicted him of possession.

                                              8
the crimes were predominantly independent of each other. And at trial we certainly heard
evidence that the furnishing or the giving of the methamphetamine to Ms. Mercer was
earlier in the morning and the methamphetamine was found on the Defendant later in the
evening when he was arrested were independent, predominantly independent of each
other. So I’m going to find that to be true under [rule] 4.425(a)(1). The [rule
4.425(a)(2)] factor is separate acts of violence does not seem to apply. Under [rule
4.425(a)(3)], the crimes were committed at different times or separate places. Although
they might not have been separate places, it does appear to the Court that they were
committed at different times, earlier in the day and later in the evening, even though they
were the same day. It does appear to me that they were found -- or the crimes were
committed at different times.” The trial court also cited factors in aggravation, that is,
defendant’s violent conduct of using the lamp in a menacing manner, defendant’s priors
were numerous and of increasing seriousness, defendant served a prior prison term, he
was on probation when he committed the offense, and his prior performance on probation
or parole was unsatisfactory. Defense counsel posed no objection.
                                           Analysis
       A trial court’s sentencing decision is reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) “In reviewing for abuse of discretion, we are
guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision
will not be reversed merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no

                                               9
reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-
377.)
        California Rules of Court, rule 4.425(a)(1) and (3) provide, respectively, that in
imposing a consecutive or concurrent sentence, the trial court considers whether “[t]he
crimes and their objectives were predominantly independent of each other” and
“committed at different times or separate places, rather than being committed so closely
in time and place as to indicate a single period of aberrant behavior.” California Rules of
Court, rule 4.425(b) provides that “[a]ny circumstances in aggravation or mitigation may
be considered in deciding whether to impose consecutive rather than concurrent
sentences, except: [¶] (1) [a] fact used to impose the upper term; [¶] (2) [a] fact used to
otherwise enhance the defendant’s prison sentence; and [¶] (3) [a] fact that is an element
of the crime may not be used to impose consecutive sentences.”
        Defendant contends the trial court abused its discretion in imposing consecutive
sentences by relying upon the factors that the crimes were predominately independent of
each other and were committed at different times. With respect to the trial court’s
citation of aggravating factors to support imposition of consecutive sentences, defendant
only argues “[t]his is refuted by the fact that the court chose the middle term for the
principal offense and rejected the upper term.”
        Defendant has failed to demonstrate an abuse of discretion. Defendant furnished
or sold methamphetamine to Mercer and was found in possession of a half-gram of
methamphetamine on his person later that same day (he was no longer in possession of
the methamphetamine he provided to Mercer). This fact supported the trial court’s
findings that the crimes were predominantly independent and committed at different
times. Moreover, there were several aggravating factors, none of which defendant
challenges on appeal, which supported a consecutive sentence. Had the trial court used
these aggravating factors to impose the upper term on the principal count, defendant
would now be complaining of dual use. We find no abuse of discretion

                                             10
                                             III
       We note errors in preparation of the abstract of judgment. Defendant was
acquitted of possession of methamphetamine for sale as charged in count II but was
convicted of the lesser included offense of possession of methamphetamine. The abstract
of judgment properly refers to Health and Safety Code section 11377, subdivision (a), but
misdescribes the offense as possession for sale. The abstract also erroneously reflects
that defendant was sentenced as a two-strike offender. A strike prior was neither alleged
nor proved. We will order the abstract corrected accordingly.
                                      DISPOSITION
       The trial court is directed to prepare a corrected abstract of judgment, properly
describing count II as possession of methamphetamine and not checking the box for a
two-strike offender, and to forward a certified copy of the corrected abstract to the
Department of Corrections and Rehabilitation. The judgment is affirmed.


                                             BLEASE                    , Acting P. J.


We concur:


         MURRAY                    , J.


         HOCH                      , J.




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