Filed 3/3/15 P. v. Quinones CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058882

v.                                                                       (Super.Ct.No. RIF1106224)

LOUIS JOHN QUINONES,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge.

(Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art.

VI, § 6, of the Cal. Const.) Affirmed.

         Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Randall D. Einhorn, and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
                                                 I

                                        INTRODUCTION

          Defendant Louis John Quinones appeals from judgment entered following a jury

conviction for possessing heroin for sale (Health & Saf. Code, § 11351). In a bifurcated

trial, the trial court also found true the enhancement allegations that defendant suffered a

prior conviction in 2004 (Health & Saf. Code, § 11370.2); a prior prison term (Pen. Code,

§ 667.5, subd. (b))1; and a prior serious or violent felony conviction (§§ 667, subd.

(e)(1)). The trial court sentenced defendant to an aggregate term of seven years in state

prison.

          Defendant contends his trial attorney committed ineffective assistance of counsel

(IAC) by (1) failing to object to expert opinion testimony on whether defendant

possessed heroin for sale; (2) stipulating to allowing the prosecution to search his two cell

phones and photograph text messages found on the phones; and (3) failing to object to the

prosecution introducing into evidence the California Law Enforcement

Telecommunication Systems (CLETS) report. In addition, defendant argues the trial

court committed prejudicial error by failing sua sponte to give the jury CALCRIM No.

225, and abused its discretion in denying defendant’s motion to strike his 2004 prior

felony conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero motion). Finally, defendant contends cumulative error supports reversal of his

convictions. We reject defendant’s contentions and affirm the judgment.


          1   Unless otherwise noted, all statutory references are to the Penal Code.

                                                 2
                                             II

                                            FACTS

      While on patrol around 3:00 p.m. on December 26, 2011, sheriff’s department

investigator Jerry Abbott and deputy John Carroll noticed three men sitting on the ground

by a tree, near the roadway. Abbott parked his patrol vehicle nearby and the two officers

walked towards the men from behind them. Abbott initially saw defendant sitting on the

ground with his back to the officers. Abbott was about 10 feet away when he saw

defendant stand up and glance back at the officers. Abbott saw a red glue tube cap

sticking out of the palm of defendant’s hand. Defendant dropped the item on the ground.

      The officers walked around the tree and approached defendant from the front.

Defendant kneeled down. He appeared to be attempting to pick up something on the

ground. Abbott saw a black fanny pack on the ground in front of defendant. The officers

told defendant to stand up. As he did so, defendant handed the fanny pack to Carroll,

stating, “‘You can search it. I have nothing.’” The officers looked through the bag and

found two cell phones, a black and white notebook containing a “pay/owe sheet”

(ledger), a bag of rubber bands, and about $360 in different denominations. Defendant

told Abbott the two cell phones were his.

      When searching the area where defendant had been sitting, Carroll found a red

Super Glue tube on the ground. Inside the tube were two bindles of heroin. The parties

stipulated the officers found two bindles of heroin weighing .12 and .09 grams inside the

glue tube and each bindle contained a usable amount. The officers did not find anything



                                              3
else in the area and defendant did not appear to be under the influence. Defendant was

placed under arrest and transported to the station.

       After arriving at the station about 30 minutes later, defendant’s two cell phones

began ringing. Within a five-minute period, they rang at least 10 times. Abbott answered

the phones. During the first call, someone identified himself as Big Sapo. Abbott asked

him what he needed. Big Sapo said, “I need three” and he wanted “three tadpoles.”

Based on Abbott’s expertise as an undercover narcotics officer, he concluded this meant

the caller wanted three bindles of heroin. The second caller identified herself as Christa

and said she needed two. Abbott believed this meant she wanted two bindles of heroin.

       Narcotics detective Matthew Lackey testified defendant possessed the heroin for

sale. Lackey said he based his expert opinion testimony on the presence of heroin, the

relatively large amount of cash in various denominations found in defendant’s pocket,

and the fact defendant was not under the influence or in possession of any drug

paraphernalia. Lackey believed the large amount of cash in defendant’s possession was

proceeds from defendant’s heroin sales earlier that day. Lackey also relied on evidence

of the incoming calls Abbott received from Big Sapo and Christa, who Lackey believed

were purchasers calling defendant for heroin. In addition, Lackey testified the ledger was

a record keeping log of defendant’s drug sales. He used the ledger “to ensure he’s not

losing money and he knows who owes him and he knows who he sold to.” The name

Sap was in the ledger. Lackey believed Sap referred to Big Sapo. Lackey testified that

the numerous calls on defendant’s cell phones and the large number of names and entries

in defendant’s ledger indicated defendant had a large volume business selling heroin.

                                             4
       In concluding defendant was in possession of heroin for sale, Lackey also relied

on evidence there were close to 10 text messages on the two phones. The texts

referenced defendant’s name and contained drug sales terms, such as “re-upping,” which

meant “out of a quantity”, and “[v]ente,” which was a common street term for $20 worth

of heroin. The text message, “Let me know when you got something” was a common

phrase for “Let me know when you’re holding” or when “you have some product.” The

text messages, “Need something” and “Rather get your stuff” were also drug related.

Lackey testified the text message, “You said you would be open,” meant defendant was

not in his usual location with drugs when the texter was looking for him. Also, the text,

“I want three, Ted wants two,” was an order for heroin.

       Lackey explained that the text messages indicated defendant’s heroin sales

business required him to be at a certain location selling heroin or his customers would get

sick. Defendant’s usual time for sales was not 2:00 or 3:00 p.m., when defendant was

arrested. By that time, numerous sales had already been made. When asked if Lackey

believed defendant nevertheless still possessed the heroin for sale when defendant was

arrested, Lackey replied, “Without a doubt. I just think Investigator Abbott was late.”

Lackey said he did not believe defendant possessed the heroin for personal use, although

Lackey acknowledged someone who sells drugs can also be a user.




                                             5
                                             III

                EXPERT TESTIMONY ON POSSESSION OF HEROIN

       Defendant contends his attorney’s failure to object to opinion testimony offered by

the prosecution’s expert witness, law enforcement narcotics detective Matthew Lackey,

violated his Sixth Amendment right to effective assistance of counsel.

A. Law Applicable to IAC Claims

       Reversal of a conviction based on IAC requires proof that: (1) counsel’s

performance was deficient when measured against the standard of a reasonably

competent attorney, and (2) counsel’s deficient performance so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result. This court must presume counsel’s conduct fell within the wide

range of reasonable professional assistance and accord great deference to counsel’s

tactical decisions. (In re Crew (2011) 52 Cal.4th 126, 150 (Crew); People v. Lewis

(2001) 25 Cal.4th 610, 674 (Lewis).) If an IAC claim can be determined on the ground of

lack of prejudice, a court need not decide whether counsel’s performance was deficient.

(Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland), Crew, at p. 150.)

       Because it is inappropriate for a reviewing court to speculate about the tactical

reasons for counsel’s actions, when the reasons are not readily apparent in the record, the

court will not reverse unless the record discloses no conceivable tactical purpose. (Lewis,

supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light on the reasons for

counsel’s actions, a claim of IAC is more appropriately decided in a habeas corpus

proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

                                             6
B. Admissible Expert Testimony on Possession for Sale of Heroin

       Defense counsel’s failure to object to Lackey’s expert testimony did not constitute

deficient performance when measured against the standard of a reasonably competent

attorney, because Lackey’s testimony was admissible expert testimony.

       “As a general rule, the opinion of an expert is admissible when it is ‘[r]elated to a

subject that is sufficiently beyond common experience that the opinion of an expert

would assist the trier of fact . . . .’ (Evid. Code, § 801, subd. (a).) Additionally, in

California: ‘Testimony in the form of an opinion that is otherwise admissible is not

objectionable because it embraces the ultimate issue to be decided by the trier of fact.’

(Evid. Code, § 805.)” (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178

(Summers); in accord, People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang).)

       Although expert testimony is generally inadmissible on common topics jurors of

ordinary knowledge and education could decide as intelligently as an expert, “an expert

may testify on a subject about which jurors are not completely ignorant. [Citations.] In

determining the admissibility of expert testimony, ‘the pertinent question is whether,

even if jurors have some knowledge of the subject matter, expert opinion testimony

would assist the jury.’ [Citations.]” (People v. Lindberg (2008) 45 Cal.4th 1, 45.) We

review the trial court’s decision to admit or exclude evidence for abuse of discretion.

(People v. Vieira (2005) 35 Cal.4th 264, 292.)

       As explained by Justice Mosk in People v. Bassett (1968) 69 Cal.2d 122, 141:

“‘The chief value of an expert’s testimony . . . rests upon the material from which his

opinion is fashioned and the reasoning by which he progresses from his material to his

                                               7
conclusion . . . it does not lie in his mere expression of conclusion.’ (Italics added.)

[Citation.] In short, ‘Expert evidence is really an argument of an expert to the court, and

is valuable only in regard to the proof of the facts and the validity of the reasons

advanced for the conclusions’ (Italics added.) [Citations.]” (In accord, People v. Hunt

(1971) 4 Cal.3d 231, 237 (Hunt).)

       Here, defendant challenges Lackey’s expert opinion testimony regarding the

charged offense of possession of heroin for sale. To secure a conviction for possession

for sale of a controlled substance, the prosecution must prove beyond a reasonable doubt

that the defendant possessed a controlled substance in an amount sufficient to be used

“for sale or consumption as a controlled substance,” and that the defendant had the

specific intent to sell it. (People v. Parra (1999) 70 Cal.App.4th 222, 225-226 (Parra).)

“‘Intent is rarely susceptible of direct proof and usually must be inferred from the facts

and circumstances surrounding the offense.’ [Citation.] ‘Evidence of a defendant’s state

of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as

direct evidence to support a conviction.’ [Citation.]” (People v. Rios (2013) 222

Cal.App.4th 542, 567-568; People v. Harris (2000) 83 Cal.App.4th 371, 374 (Harris)

[intent to sell controlled substance may be established by circumstantial evidence].)

       The testimony of a qualified narcotics expert is sufficient to support a finding that

a controlled substance was possessed with the intent to sell. (People v. Newman (1971) 5

Cal.3d 48, 53, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857,

861; see Parra, supra, 70 Cal.App.4th at p. 227 [opinion based on quantity and lack of

drug paraphernalia constitutes substantial evidence of intent]; Harris, supra, 83

                                              8
Cal.App.4th at pp. 374-375 [opinion based on quantity of marijuana and

methamphetamines; manner drugs were transported; and quantity of postage stamps,

which were typically used as currency to purchase drugs]; People v. Carter (1997) 55

Cal.App.4th 1376, 1377-1378 [opinion based on quantity of rock cocaine]; People v.

Peck (1996) 52 Cal.App.4th 351, 357 [opinion based on quantity of marijuana].)

       In cases involving heroin possession, “it is settled that an officer with experience

in the narcotics field may give his opinion that the narcotics are held for purposes of sale

based upon matters such as quantity, packaging, and the normal use of an individual. On

the basis of such testimony convictions of possession for purposes of sale have been

upheld. [Citations.]” (Hunt, supra, 4 Cal.3d at p. 237.) This is because, “[i]n the heroin

and marijuana situations, the officer experienced in the narcotics field is experienced with

the habits of both those who possess for their own use and those who possess for sale

because both groups are engaged in unlawful conduct.” (Ibid.)

       The prosecution’s narcotics expert, Lackey, testified after hearing investigators

Abbott and Furtado testify. He concluded that, although possessing $375 in twenties,

tens, fives and ones, “is not a crime and the denominations are not illegal, when you add

in everything, the fact that the defendant possessed that money while sitting in a field

with heroin, I believe that those are proceeds from the sales of heroin.” Lackey further

testified that he believed defendant had only two small packages of heroin in his

possession because “most of the sales were completed for the day, . . . And I don’t base

that solely on the money or the heroin. Those could probably go either way. It’s a small

quantity and a large quantity of money. It probably doesn’t seem like a lot, but for these

                                              9
purposes, it’s a lot of money. [¶] I base it on the text messages and I base it on the book

[ledger] that the defendant has a clear business that he needs to be at a certain time or

people get sick. . . . I think Detective Abbott arrested the defendant after numerous sales

were made.”

       Defendant argues his attorney committed IAC by not objecting to Lackey’s expert

testimony on grounds Lackey expressed an opinion on whether a crime was committed

and whether defendant was guilty of the charged offense. Defendant also asserts Lackey

improperly commented on defendant’s state of mind by testifying he believed defendant

possessed heroin for sale, and then stating in detail the evidence upon which he based his

opinion.

       “A witness may not express an opinion on a defendant’s guilt. [Citations.] The

reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion

testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or

innocence are inadmissible because they are of no assistance to the trier of fact. To put it

another way, the trier of fact is as competent as the witness to weigh the evidence and

draw a conclusion on the issue of guilt.’” (People v. Coffman and Marlow (2004) 34

Cal.4th 1, 77; in accord, Vang, supra, 52 Cal.4th at p. 1048; Summers, supra, 69

Cal.App.4th at p. 1183.) It is also improper for an expert witness to express an opinion as

to whether a crime has been committed. (People v. Torres (1995) 33 Cal.App.4th 37, 47

(Torres).)

       Here, Lackey did not testify that he believed defendant was guilty or merely

express a general opinion as to whether a crime was committed. Rather, he testified

                                              10
regarding specific circumstances and conduct, which Lackey believed, based on his law

enforcement experience, indicated defendant was selling heroin. (Hunt, supra, 4 Cal.3d

at p. 237.) Lackey’s insight and awareness of facts and circumstances indicating drug

sales activity, was generally beyond that of a lay person and therefore was helpful to the

jury in determining whether there was sufficient circumstantial evidence to find that

defendant possessed heroin for sale, as opposed to mere possession, and had the requisite

specific intent to sell heroin. Lackey’s expert opinion testimony did not usurp the fact

finders’ function. Rather, it assisted the fact finder in providing insight into the

significance of evidence supporting a finding of possession of heroin for sale. As

instructed by the court, the jurors were not required to accept Lackey’s expert opinion,

and could form their own opinion based on the evidence presented.

       Defendant’s reliance on Torres, supra, 33 Cal.App.4th 37, for the proposition

Lackey improperly testified defendant was guilty of the charged offense, is misplaced.

Torres is distinguishable in that the Torres defendant was charged with robbery and

murder, not possession for sale of a controlled substance. Defendant’s drug-related crime

involved facts beyond the common experience and knowledge of a lay person. A lay

person might not understand or appreciate the significance and meaning of coded

language used during the phone calls to defendant, in the texts found on defendant’s cell

phones, and his ledger of sales. Likewise, a lay person might not be aware of the

significance of various activities and circumstances common to heroin sales. Lackey’s

opinion testimony assisted the jury in this regard in determining whether defendant was

involved in the sale of heroin.

                                              11
       Furthermore, the improper expert testimony in Torres was by a police officer

testifying as to the legal meaning of the terms “robbery” and “extortion,” which usurped

the province of the judge. (Torres, supra, 33 Cal.App.4th at pp. 45-46.) In the instant

case, Lackey did not define any legal terms. In addition, in Torres, the court held the

police officer’s testimony, that the defendant had engaged in robbery, was tantamount to

stating defendant was guilty of robbery and first degree felony murder. (Id. at pp. 42, 46-

47.)

       Lackey did not similarly testify directly to guilt. Although he indicated he

believed defendant possessed heroin for sale, he provided additional testimony

enumerating the various factors and circumstances leading him to believe this. He relied

on evidence that a lay person might not have realized supported a finding of intent to sell

heroin. His testimony therefore was admissible, even though it encompassed ultimate

issues, because it concerned matters beyond common experience, that might assist the

jury in determining whether defendant possessed the heroin with intent to sell it. (Vang,

supra, 52 Cal.4th at p. 1048; People v. McDonald (1984) 37 Cal.3d 351, 371, overruled

on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914; People v. Valdez

(1997) 58 Cal.App.4th 494, 506; Evid. Code, § 801, subd. (a).) We conclude defense

counsel could have reasonably declined to object to Lackey’s expert testimony because it

was proper and not likely to be excluded. Defendant therefore has not established that his

attorney’s failure to object to Lackey’s testimony constituted IAC.




                                            12
                                              IV

                     SEARCH OF DEFENDANT’S CELL PHONES

       Defendant contends he received ineffective representation or, alternatively,

defense counsel exceeded his authority by waiving defendant’s Fourth Amendment

rights, when his trial attorney stipulated to the prosecution searching text messages on

defendant’s two cell phones and photographing the text messages. We conclude

defendant has not established IAC.

       At a trial readiness conference on June 27, 2012, defense counsel, who was

standing in for defendant’s trial attorney, told the court that defendant’s trial attorney and

defendant stipulated that the district attorney investigator “can go to the property room

where the two cell phones were booked into evidence and can go into those cell phones to

retrieve text messages and to ascertain the telephone numbers that belong to those

numbers so we can find out who they belong to. If the Court can make an order so that

we can go do that.” In response, the trial court asked, “That has already been stipulated

to; correct?” Defense counsel stated, “Yes.” The trial court then agreed to “order that

pursuant to the stipulation on Mr. Quinones’ matter, that the district attorney is allowed to

obtain any cell phones from the property of Mr. Quinones so they can review the phone

numbers, registered users, and text messages. [¶] . . . [¶] . . . And to take photographs of

the text messages.” The trial court again inquired, “That is pursuant to the previous

stipulation?” Defense counsel confirmed the order was “fine.”

       Defendant was present and did not object to defense counsel’s representations

regarding the stipulation or to the trial court ordering, pursuant to the stipulation, the

                                              13
prosecutor reviewing the phone numbers, registered users, and text messages on

defendant’s two cell phones, and also photographing the text messages. The hearing

minute order states that defendant was present at the June 27, 2012 hearing, he was

represented by counsel, and counsel stipulated that the prosecution was permitted to

obtain defendant’s cell phones to review phone numbers and texts, and was allowed to

take photographs of them.

       Citing Riley v. California (2014) 134 S.Ct. 2473, defendant argues that the

warrantless search of his cell phones violated his Fourth Amendment guarantee against

unreasonable search and seizure. In Riley, the United States Supreme Court held that a

warrant is generally required before searching a cell phone for data, even if the phone is

seized incident to arrest. The Riley court concluded interests in protecting the officers’

safety and preventing destruction of evidence did not justify dispensing with the warrant

requirement for searches of cell phone data. (Id. at pp. 2493-2495.) Riley is not

dispositive because in the instant case there is substantial evidence that defendant

personally waived his Fourth Amendment rights against unreasonable searches of his cell

phones.

       Defendant argues the record does not clearly establish defendant knowingly and

intelligently waived his Fourth Amendment rights against search and seizure of his cell

phones. In People v. Bravo (1987) 43 Cal.3d 600 (Bravo), the Supreme Court rejected

the argument that a probation condition waiving Fourth Amendment search and seizure

protections should be narrowly construed. The court noted that case law applies a strict

standard to waivers of constitutional rights generally but does not strictly construe

                                             14
waivers of Fourth Amendment protection, such as consent to searches. (Id. at pp. 606-

607; in accord, In re Curtis T. (1989) 214 Cal.App.3d 1391, 1395 (Curtis T.)

       The Bravo court relied on Schneckloth v. Bustamonte (1973) 412 U.S. 218

(Schneckloth), in which the United States Supreme Court stated: “There is a vast

difference between those rights that protect a fair criminal trial and the rights guaranteed

under the Fourth Amendment. Nothing, either in the purposes behind requiring a

‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a

requirement suggests that it ought to be extended to the constitutional guarantee against

unreasonable searches and seizures. [¶] A strict standard of waiver has been applied to

those rights guaranteed to a criminal defendant to insure that he will be accorded the

greatest possible opportunity to utilize every facet of the constitutional model of a fair

criminal trial. Any trial conducted in derogation of that model leaves open the possibility

that the trial reached an unfair result precisely because all the protections specified in the

Constitution were not provided. . . .

       “The protections of the Fourth Amendment are of a wholly different order, and

have nothing whatever to do with promoting the fair ascertainment of truth at a criminal

trial. . . . The guarantees of the Fourth Amendment stand ‘as a protection of quite

different constitutional values—values reflecting the concern of our society for the right

of each individual to be let alone. . . .’ [Citation.] [¶] Nor can it even be said that a

search, as opposed to an eventual trial, is somehow ‘unfair’ if a person consents to a

search. . . . And, unlike those constitutional guarantees that protect a defendant at trial, it



                                              15
cannot be said every reasonable presumption ought to be indulged against voluntary

relinquishment.” (Schneckloth, supra, 412 U.S. at pp. 241-243.)

       Relying on Schneckloth, the California Supreme Court in Bravo, supra, 43 Cal.3d

600 concluded the strict test of waiver and principles of narrow construction have no

application in determining the scope of the defendant’s consent to search given as a

condition to the grant of probation. The Bravo court instead interpreted the defendant’s

waiver of his Fourth Amendment rights on the basis of an objective test. (Id. at pp. 606-

607; in accord, Curtis T., supra, 214 Cal.App.3d at p. 1396.) Bravo and Schneckloth

support the proposition that “a strict and formal waiver of Fourth Amendment rights is

not required as a prerequisite in obtaining consent to allow a search.” (Curtis T., at p.

1397.) In the instant case, the record shows that defendant personally agreed to allow the

prosecution to review the phone numbers and text messages on defendant’s two cell

phones, and also to photograph the text messages on the phones. Defendant was present

when his attorney told the court defendant had personally agreed to the cell phone

stipulation, and defendant did not object or disagree.

       Under such circumstances, in which defendant’s attorney informed the court, in

defendant’s presence, that defendant had personally stipulated to the prosecution looking

at his phones and photographing text messages, we conclude the record provides

sufficient evidence establishing that defendant intentionally and knowingly waived his

Fourth Amendment search and seizure rights to his cell phones. (Brewer v. Williams

(1977) 430 U.S. 387, 404.) Defendant’s attorney therefore did not commit IAC by not



                                             16
objecting to the prosecution having access to defendant’s two cell phones, reviewing text

messages on the phones, and photographing the text messages.

       We also reject defendant’s alternative contention his trial attorney exceeded his

authority by waiving defendant’s Fourth Amendment rights. The record not only shows

defendant personally waived his Fourth Amendment rights but, in addition, there is no

showing of prejudice. Even assuming under Riley, the prosecution could not legally

search defendant’s phones without a warrant, it is highly probable the trial court would

have granted the prosecution a warrant to search defendant’s cell phones, if requested. In

turn, the same evidence would have been introduced at trial and defendant would have

received the same verdict. (Strickland, supra, 466 U.S. at p. 697.)

       Issuance of a search warrant requires “‘a substantial basis for concluding a fair

probability existed that a search would uncover wrongdoing.’” (People v.

Carrington (2009) 47 Cal.4th 145, 161, quoting People v. Kraft (2000) 23 Cal.4th 978,

1040.) In determining whether to grant a warrant, the issuing magistrate must consider

whether, “given all the circumstances set forth in the affidavit before him [or her],

including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238; in accord,

Carrington, at p. 161.) We give deferential review to this determination of probable

cause. (Ibid.)

       Here, the prosecution had ample evidence to support a search warrant for

defendant’s cell phones. Defendant admitted the fanny pack and cell phones found inside

                                             17
the fanny pack belonged to him. Defendant was also observed holding the glue tube

containing two bindles of heroin, and the ledger book found nearby also supported a

finding defendant was selling narcotics. The totality of the evidence, apart from the

phone evidence, indicated there was a high probability defendant was using the phones to

sell heroin. The evidence was thus more than sufficient to support a search warrant for

defendant’s two cell phones, to allow the prosecution to search the phones for evidence

defendant was selling heroin.

       Any failure by defense counsel to object to allowing the prosecution to search

defendant’s cell phones or any improper waiver of defendant’s Fourth Amendment

search and seizure rights, was harmless error because it is highly probable the trial court

would have granted a search warrant, allowing the prosecution to search defendant’s cell

phones, had defendant and his attorney not consented to the search.

                                              V

                           CALCRIM INSTRUCTION NO. 225

       Defendant contends the trial court’s failure to give sua sponte CALCRIM No. 225

violated his due process right to a properly instructed jury, to present a complete defense,

and to a fair trial. Alternatively, defendant argues his attorney provided IAC by not

requesting CALCRIM No. 225. Defendant argues that the failure to give CALCRIM No.

225 was prejudicial because it allowed the jury to find him guilty without finding he had

the required special intent to sell the heroin. Defendant asserts the jury could have

concluded the heroin was possessed for use, without finding defendant harbored the

specific intent to sell it at the time of the offense. We disagree. The totality of the

                                              18
instructions, in the absence of CALCRIM No. 225, sufficiently instructed the jury on the

element of specific intent based on circumstantial evidence.

       The parties did not request, and the trial court did not give, CALCRIM No. 225,

which states that the People must prove not only that the defendant did the act charged,

but also that the defendant acted with a particular intent, as defined by the instruction for

the charged crime. The instruction further states that intent may be proved by

circumstantial evidence and that, before the jury may rely on circumstantial evidence, the

jury must be convinced that the People proved each fact essential to that conclusion

beyond a reasonable doubt. If the jury can draw two or more reasonable conclusions

from the circumstantial evidence, the jury must conclude that the required intent was not

proved by the circumstantial evidence.

       The Bench Notes for CALCRIM No. 225 state: “The court has a sua sponte duty

to instruct on how to evaluate circumstantial evidence if the prosecution substantially

relies on circumstantial evidence to establish the element of a specific intent or a mental

state. [Citation.] [¶] Give this instruction when the defendant’s intent or mental state is

the only element of the offense that rests substantially or entirely on circumstantial

evidence. If other elements of the offense also rest substantially or entirely on

circumstantial evidence, do not give this instruction. Give CALCRIM No. 224,

Circumstantial Evidence: Sufficiency of Evidence. [Citations.]” The Bench Notes for

CALCRIM No. 224 state: “If intent is the only element proved by circumstantial

evidence, do not give this instruction. Give CALCRIM No. 225, Circumstantial

Evidence: Intent or Mental State. [Citation.]”

                                             19
       This court determines whether a jury instruction correctly states the law under the

de novo standard of review. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

(Ramos).) “Review of the adequacy of instructions is based on whether the trial court

‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In determining whether

error has been committed in giving or not giving jury instructions, we must consider the

instructions as a whole . . . [and] assume that the jurors are intelligent persons and

capable of understanding and correlating all jury instructions which are given.”

[Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support

the judgment rather than defeat it if they are reasonably susceptible to such

interpretation.’ [Citation.]” (Ibid.)

       Construed in light of these principles, and in the context of the instructions as a

whole, the absence of CALCRIM No. 225 does not constitute prejudicial error. (Ramos,

supra, 163 Cal.App.4th at p. 1088.) The trial court sufficiently instructed the jury on

determination of the specific intent element based on circumstantial evidence. The court

gave CALCRIM Nos. 223 (circumstantial evidence defined), 224 (circumstantial

evidence; sufficiency of evidence), and 251 (union of act and intent; specific intent or

mental state). Instruction on intent was also provided in CALCRIM Nos. 2302 (elements

of the charged crime, possession of a controlled substance for sale) and 2304 (elements of

the lesser included offense, possession of a controlled substance).

       Even assuming the trial court erred in not giving sua sponte CALCRIM No. 225

(People v. Hughes (2002) 27 Cal.4th 287, 347), any such error was harmless error under

People v. Breverman (1998) 19 Cal.4th 142, 178, because the instructions, as a whole,

                                             20
adequately instructed the jury regarding finding specific intent based on circumstantial

evidence. It is not reasonably probable defendant would have obtained a more favorable

outcome had the trial court given CALCRIM No. 225 instead of CALCRIM No. 224.

We reject defendant’s IAC challenge for the same reason: defendant was not prejudiced

by the court not giving CALCRIM No. 225. There is not a reasonable probability that the

outcome would have been more favorable, had defense counsel requested CALCRIM No.

225. (Crew, supra, 52 Cal.4th at p. 150.)

                                                 VI

                            ADMISSIBILITY OF CLETS REPORT

       Defendant asserts he received ineffective representation when his attorney failed

to object to the prosecutor introducing into evidence a CLETS report to prove

defendant’s 2004 prior conviction allegation under Health and Safety Code section

11370.2, subdivision (a).

A. Background Facts and Procedure

       During a bifurcated court trial on sentence enhancements, the trial court heard

testimony and reviewed evidence concerning the special allegation that defendant

previously served prison sentences under sections 667 and 667.5, and was convicted of

three prior crimes, including violating Health and Safety Code section 11351 in 2004.

District Attorney Forensic Technician Linda Risaliti testified she assisted attorneys with

preparing for trials, including processing fingerprint, photograph, and fingerprint

comparison evidence. Risaliti had training on how to review 969b packets and had

testified in court regarding 969b packets over 70 times. Risaliti explained that a 969b

                                            21
packet consists of documents and paperwork on an individual that has been sentenced to

prison. Risaliti stated she had reviewed two prison packets (969b packets) relating to

defendant’s convictions in 1992 and 2010 for violating sections 459 and 666 (exhs. 3 and

4). Risaliti was shown the two 969b packets in court, and compared the fingerprints in

the 969b packets with a ten print fingerprint card of defendant’s fingerprints. Risaliti

testified the fingerprints on the fingerprint card matched those in the two 969b packets.

       The prosecutor also requested admission into evidence of a copy of the CLETS

report (exh. 2), containing defendant’s criminal history. Defense counsel stated he had

no objection, and the CLETS report was received into evidence. The prosecutor

described the CLETS report as a certified rap sheet belonging to defendant and noted the

California Department of Corrections (CDC) number listed on the rap sheet matched

defendant’s CDC number on the 969b packets. The CLETS report shows defendant pled

guilty on July 26, 2004, and was convicted of violating Health and Safety Code section

11351. The CLETS report included a signed statement, dated the same day as the

bifurcated trial on defendant’s priors, certifying that the CLETS report was a true and

original document received from CLETS by the district attorney’s records section.

       Defense counsel declined to provide any argument refuting that defendant suffered

a section 11351 conviction in 2004. After counsel submitted on the matter, the trial court

found defendant suffered the 2004 conviction and therefore found true the section

11370.2, subdivision (a), prior conviction sentence enhancement allegation.




                                             22
B. Discussion

       Defendant argues his trial attorney’s failure to object to the trial court admitting

into evidence the CLETS report constituted IAC because the CLETS report was

inadmissible hearsay evidence, the section 969b hearsay exception does not apply to a

CLETS report, and the CLETS report was the only evidence supporting defendant’s

sentence enhancement based on his 2004 prior conviction.

       Section 969b provides in relevant part: “For the purpose of establishing prima

facie evidence of the fact that a person being tried for a crime or public offense under the

laws of this State has been convicted of an act punishable by imprisonment in a state

prison, county jail or city jail of this State, and has served a term therefore in any penal

institution, . . . the records or copies of records of any state penitentiary, reformatory,

county jail, city jail, or federal penitentiary in which such person has been imprisoned,

when such records or copies thereof have been certified by the official custodian of such

records, may be introduced as such evidence.”

       Section 969b “is essentially a ‘hearsay exception’ that allows certified copies of

the specified records ‘to be used for the truth of the matter asserted in those records,’ i.e.,

that a person served a prison term for a prior conviction. [Citation.] However, section

969b ‘“is permissive and not mandatory. . . . [I]t does not restrict the People from using

other forms of proof . . .” to establish the fact of previous imprisonment. [Citation.]’

[Citation.]” (People v. Martinez (2000) 22 Cal.4th 106, 116 (Martinez).)

       Section 969b is inapplicable to a CLETS report because the CLETS report is not a

record from a state penitentiary, reformatory, county jail, city jail, or federal penitentiary.

                                              23
Nevertheless, it is admissible to establish a prison prior if it satisfies applicable rules of

admissibility, such as the official records hearsay exception (Evid. Code, § 1280;

Martinez, supra, 22 Cal.4th at p. 116.) In Martinez, the court rejected defendant’s

argument that, by not referring to CLETS and other criminal records data banks in

enacting or amending several statutes expressly dealing with the use of computer records,

the Legislature indicated CLETS records could not be used as evidence of prior

convictions and service of prior prison terms. (Martinez, at p. 119.)

       Evidence Code section 1280 defines the official records hearsay exception as

follows: “Evidence of a writing made as a record of an act, condition, or event is not

made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to

prove the act, condition, or event if all of the following applies: [¶] (a) The writing was

made by and within the scope of duty of a public employee. [¶] (b) The writing was

made at or near the time of the act, condition, or event. [¶] (c) The sources of

information and method and time of preparation were such as to indicate its

trustworthiness.” “A trial court has broad discretion in determining whether a party has

established these foundational requirements. [Citation.]” (Martinez, supra, 22 Cal.4th at

p. 120.) A reviewing court may overturn the trial court’s exercise of discretion “‘“only

upon a clear showing of abuse.”’ [Citations.]” (Ibid.) The trial court’s ruling on

admissibility in the instant case implies that, whatever finding of fact is prerequisite to

applying the hearsay exception, a separate or formal finding was unnecessary. (Evid.

Code, § 402, subd. (c); Martinez, at p. 120.)



                                               24
       Unlike the business records hearsay exception (Evid. Code, § 1271), the official

records hearsay exception “‘permits the court to admit an official record or report without

necessarily requiring a witness to testify as to its identity and mode of preparation if the

court takes judicial notice or if sufficient independent evidence shows that the record or

report was prepared in such a manner as to assure its trustworthiness.’” (Martinez, supra,

22 Cal.4th at p. 129, quoting the Cal. Law Revision Com. com., reprinted at 29B pt. 4

West’s Ann. Evid. Code (1995 ed.) foll. § 1280, p. 347.)

       In the instant case, defendant argues the official records hearsay exception (Evid.

Code, § 1280) was inapplicable to the CLETS report because the prosecution did not

establish the third element of the official records hearsay exception, which requires a

showing of its trustworthiness. (Evid. Code, § 1280, subd. (c).) But People v. Dunlap

(1993) 18 Cal.App.4th 1468 and Martinez support the proposition defendant’s certified

CLETS report was admissible under the official records hearsay exception because it is a

trustworthy document. In Dunlap, the court held a certified CLETS report was

admissible under the official records hearsay exception, even though there was no

testimony regarding preparation of the printout, based on “the presumption that official

duty was regularly performed to satisfy itself that the record was sufficiently

trustworthy.” (Id. at p. 1480.)

       Martinez also supports the proposition the certified CLETS in the instant case is

admissible. In Martinez, supra, 22 Cal.4th 106, the Supreme Court held that the trial

court did not abuse its discretion in ruling an uncertified CLETS report was admissible

under the official records hearsay exception. (Id. at pp. 129, 134.) The Martinez court

                                             25
based its holding in part on the fact the trial court could take judicial notice of the statutes

that require public entities, such as the DOJ, Attorney General, and local law enforcement

agencies, to report and record dates of crimes and convictions. (Martinez, supra, 22

Cal.4th at pp. 121-125.) Those statutes (§§ 11101, 11104, 11105, 11107, 11115-11117,

13100, 13125, 13150-13152, 13175-13176; CLETS statutes, Gov. Code, §§ 15150-

15167) “establish that the sources of the information in the CLETS printout were public

employees of California who had a duty to observe, report, record, and disseminate the

information. . . . Under these statutes, ‘the public employees involved in the recording or

reporting of criminal offender record information in the CLETS system have a duty to

employ methods ensuring a reasonable level of accuracy and reliability.’ [Citation.]”

(Martinez, supra, 22 Cal.4th at pp. 129-130.) The Martinez court also noted that the

Legislature enacted statutes (§§ 11120-11121, 11124, 11126) affording defendants an

opportunity to refute any erroneous or inaccurate criminal history information stated in a

CLETS report. (Martinez, at p. 131.)

       In rejecting the Martinez defendant’s contention the CLETS report was not

trustworthy, because it was a government computer record, the Martinez court stated:

“Defendant’s arguments are unpersuasive. First, as we have already explained, in 1971

the Legislature statutorily established a process for review and correction of the criminal

history information in the Department’s possession. (§ 11120 et seq.) . . . Second, our

courts have refused to require, as a prerequisite to admission of computer records,

testimony on the ‘acceptability, accuracy, maintenance, and reliability of . . . computer

hardware and software.’ [Citation.]” (Martinez, supra, 22 Cal.4th at p. 132.)

                                              26
       Defendant attempts to distinguish Martinez, by arguing that in Martinez, the

prosecution presented additional evidence establishing the trustworthiness of the CLETS

report, which included testimony by a district attorney paralegal, who generated the

printout. There also was testimony by a deputy sheriff, who had previously questioned

the defendant about his criminal history and to whom the defendant made admissions

consistent with the computer printout. (Martinez, supra, 22 Cal.4th at p. 131.) Although

there was no similar testimony in the instant case establishing trustworthiness of the

CLETS report, it was not required because, unlike in Martinez, the CLETS report was

certified. It contained a certification stamp on the last page, which was signed by a

district attorney records section employee, and the stamp was dated the day the document

was introduced into evidence. Certification of the CLETS report was sufficient to

establish the third element of the official records hearsay exception, without presenting

additional testimony establishing trustworthiness. We therefore reject defendant’s IAC

challenge, since the CLETS report was admissible under the official records hearsay

exception.

                                            VII

                                   ROMERO MOTION

       Defendant contends the trial court abused its discretion in denying his Romero

motion to dismiss his 1992 prior serious felony conviction under section 1385. We

disagree.




                                            27
A. Procedural Background and Facts

       Defendant was charged with suffering a prior serious felony conviction under

sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). On September

16, 1992, defendant sustained the prior conviction for burglary (§ 459). During a

bifurcated trial on defendant’s prior conviction enhancements, the prosecution presented

evidence establishing the 1992 prior strike conviction (1992 prior) and the trial court

found true the allegation.

       Defendant filed a motion under People v. Superior Court (Romero), supra, 13

Cal.4th 497, requesting the trial court to dismiss his 1992 prior under section 1385,

subdivision (a). Defendant argued doing so was warranted based on the nature and

circumstances of his present and prior felony convictions, and based on his background,

character, and prospects. The prosecution opposed the motion on grounds the 1992 prior

was not remote in relation to defendant’s entire criminal history.

       At the hearing on the motion, the trial court acknowledged defendant did not have

a history of committing any violent crimes but he had been unable to restrain himself

from perpetrating crimes. Defendant “can’t seem to stay out of trouble long enough to

prove he can be a law-abiding citizen.” The trial court denied defendant’s Romero

motion, explaining: “[I]t’s a one strike case, and I notice in some of these cases, Mr.

Quinones got 365. He hasn’t suffered much consequence of that strike before in terms of

going to prison. He never seems to learn, and I think the whole spirit of the three strike

law is that the ante goes up when the conduct doesn’t get better. [¶] And so I’m going to



                                             28
deny the motion on that basis. If there had been a long period of time, or this was a [de

]minimis offense, I would consider it. . . .”

B. Applicable Law

       Section 1385, subdivision (a), vests the trial court with discretion to dismiss a

qualifying strike conviction in furtherance of justice, but such discretion must be

exercised in strict compliance with section 1385, subdivision (a). (People v. Superior

Court (Romero), supra, 13 Cal.4th at p. 530; People v. Williams (1998) 17 Cal.4th 148,

158 (Williams).) “[I]n ruling whether to strike or vacate a prior serious and/or violent

felony conviction allegation or finding under the Three Strikes law . . . or in reviewing

such a ruling, the court . . . must consider whether, in light of the nature and

circumstances of his present felonies and prior serious and/or violent felony convictions,

and the particulars of his background, character, and prospects, the defendant may be

deemed outside the [three strikes] scheme’s spirit, in whole or in part, and hence should

be treated as though he had not previously been convicted of one or more serious and/or

violent felonies.” (Williams, at p. 161.) These factors are commonly referred to as the

“Williams factors.”

       We review the trial court’s decision not to dismiss a prior strike allegation under

section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)

“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes

the trial court’s power to depart from this norm and requires the court to explicitly justify

its decision to do so. In doing so, the law creates a strong presumption that any sentence

that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . . ‘[I]t

                                                29
is not enough to show that reasonable people might disagree about whether to strike one

or more’ prior conviction allegations. . . . Because the circumstances must be

‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of

the very scheme within which he squarely falls once he commits a strike as part of a long

and continuous criminal record, the continuation of which the law was meant to attack’

[citation], the circumstances where no reasonable people could disagree that the criminal

falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id.

at p. 378.)

C. Discussion

       Defendant contends the trial court abused its discretion in failing to dismiss his

1992 prior, which occurred in 1992, 21 years before the trial in the instant case.

Defendant argues the trial court’s decision denying his Romero motion was arbitrary and

irrational because consideration of the Williams factors compelled a finding defendant

did not fall within the spirit of the three strikes law and therefore his 1992 prior

conviction should have been stricken.

       With regard to the Williams factors, defendant asserts his present minor,

nonviolent drug offenses, coupled with his drug abuse, do not support a finding he falls

within the spirit of the three strikes law. Defendant also argues he was not the type of

career criminal or flagrant recidivist who poses a danger to society, justifying an

enhanced sentence. The majority of defendant’s prior convictions were nonviolent theft

and drug-related crimes. Defendant suffered only one prior serious felony conviction, the

1992 conviction for first degree burglary. Defendant argues the remoteness of the

                                              30
conviction should operate as a mitigating factor, since his charged offenses were not

particularly egregious. As to defendant’s background, character, and prospects,

defendant states he earned his Generalized Education Development certificate (GED),

went to upholstery trade school, and during the last 15 to 20 years, worked as a

landscaper.

       Defendant has not established the trial court abused its discretion in denying his

Romero motion. Defendant has not led a crime-free life after suffering his strike

conviction in 1992. (Williams, supra, 17 Cal.4th at p. 163 [passage of 13 years between

strike offense and new offense not significant given defendant’s failure to refrain from

criminal activity in the interim]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813

(Humphrey) [trial court abused its discretion by striking 20-year-old prior where

defendant did not subsequently lead a legally blameless life]; People v. Jefferson (2007)

154 Cal.App.4th 1381, 1388 [declining to strike 22-year-old strike].) Defendant has at

least 15 convictions between 1978 and 2010, resulting in being placed on probation and

incarcerated on numerous occasions. Defendant also violated parole or probation after

the 1992 prior at least six times. In addition, defendant’s 1992 conviction for residential

burglary was one of eight felony convictions defendant committed prior to the charged

offenses, and at the time of the charged crimes in December 2011, defendant was on

parole for committing petty theft with a prior theft related conviction (§ 666).

       As the court in Humphrey, supra, 58 Cal.App.4th at page 813, articulately stated

regarding remote prior convictions: “We must add a new category to the list of improper

bases for the striking of a prior. In determining whether a prior conviction is remote, the

                                             31
trial court should not simply consult the Gregorian calendar with blinders on. To be sure,

a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is

sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries

the connotation of a crime-free cleansing period of rehabilitation after a defendant has

had the opportunity to reflect upon the error of his or her ways. Where, as here, the

defendant has led a continuous life of crime after the prior, there has been no ‘washing

out’ and there is simply nothing mitigating about a 20-year-old prior. Phrased otherwise,

the defendant has not lead a ‘legally blameless life’ since the 1976 prior. [Citations.] Far

from being ‘washed out,’ this prior was ‘dyed in.’”

       As to defendant’s background, character, and prospects, they also are not

particularly favorable. Defendant has only a tenth grade education and, contrary to

defendant’s statement in his appellant’s opening brief, the probation report states he did

not earn his GED. Although defendant was self-employed as a landscaper, his age of 54

years at the time of sentencing and his physical condition, after abusing drugs since the

age of 14, including heroin since age 16, may limit his prospects of future self-

employment upon release from prison. Furthermore, his lengthy history of recidivism

and substance abuse supports the trial court’s finding that defendant falls within the spirit

of the three strikes law. The record shows the trial considered the Williams factors,

balanced the relevant facts, and did not abuse its broad discretion when denying

defendant’s Romero motion.




                                             32
                                            VIII

                                 CUMULATIVE ERROR

       Defendant asserts reversal of his convictions is required based on the cumulative

effect of errors collectively undermining the fundamental fairness of his trial and the

reliability of his guilty verdict. Because we have found no errors, defendant’s claim of

cumulative error also fails. (People v. Seaton (2001) 26 Cal.4th 598, 639.)

                                            IX

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                           J.

We concur:


KING
                Acting P. J.


MILLER
                          J.




                                             33
