Filed 3/23/16 P. v. Davis 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                                           NOT TO BE PUBLISHED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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C076665

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F07456)

         v.

SCOTT RANDOLPH DAVIS,

                   Defendant and Appellant.




         Appointed counsel for defendant Scott Randolph Davis has asked this court to
review the record to determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the record, we find a clerical
error in the abstract of judgment, which we will correct, and we affirm the judgment.
         We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)




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                                FACTS AND PROCEEDINGS

      On November 13, 2013, Sacramento Police Officer Jason Start contacted Dennis
Jackson at a convenience store and escorted him to his apartment along with a team of
other officers. After knocking and announcing their presence, two females opened the
door and allowed the officers inside. Inside, the officers conducted a protective sweep of
the apartment. Probation Officer Brian Rossi entered a bedroom, pulled back a sheet
covering the closet, and found defendant lying on the ground. Officer Rossi handcuffed
defendant and placed him in the patrol car.
      Sacramento Police Officer Christopher Shippen searched the closet where
defendant was found. Inside, Officer Shippen found two pill bottles sitting on a shelf
alongside some clothing and shoes. The larger bottle contained a plastic bag inside of
which were 63 smaller bindles of heroin. The smaller bottle contained crystal
methamphetamine.
      In the bedroom, Officer Shippen found a cell phone plugged into a wall outlet and
sitting on top of a small table. Shippen looked through the photos on the cell phone to
determine ownership and saw several photos of defendant and a few photos of an
unidentified man. There were also photos of a gun on the cell phone, including one with
a person’s left hand with tattoos matching those on defendant’s hand. The date stamp on
the phone indicated the photos were taken a few days earlier. Shippen then found a gun
similar to the one in the photo approximately three feet from the cell phone. The gun was
a semi-automatic pistol and appeared to be operable.
      The People subsequently charged defendant with violations of Penal Code section
29800, subdivision (a)(1), felon in possession of a firearm, Health and Safety Code
section 11351, possession of heroin for sale, and Health and Safety Code section 11377,
subdivision (a), possession of methamphetamine. The People also alleged defendant
served three prior prison terms and was previously convicted of a strike offense.



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       Jury trial began in April 2014. Caitlin Little from the Sacramento County District
Attorney’s Laboratory of Forensic Services (the lab) testified. She explained her process
for testing the suspected heroin found in the closet with defendant, which was consistent
with the lab’s policy. After visually inspecting the 63 bindles found in the larger pill
bottle and determining that none stood out “as significantly different from the others,”
she randomly selected one of the bindles for testing. She confirmed that bindle was
heroin and opined that the remaining bindles also were heroin because they were
packaged together. She also determined that the total weight of the 63 bindles, including
packaging, was 6.72 grams.
       Sacramento Police Officer Darby Lannom, who was not associated with the
investigation of this case, testified as an expert on narcotics use and sales. He described a
usable amount of drugs as any amount that can be manipulated and would cause some
effect on the body when ingested. Based on his training and experience, he said heroin is
typically broken down into smaller amounts and packaged for sale in either plastic bags
or saran wrap.
       Officer Lannom inspected the 63 bindles found inside the closet with defendant
and recognized the packages as similar to those sold on the street for $20. He also
testified that, in his opinion, a heroin user would not have 63 bindles because each
package was typically a single dose and a user either would not possess so many at one
time or it would be packaged differently. It was his opinion that a person who possessed
this amount of heroin is involved in its sale rather than just personal use.
       Moreover, in Officer Lannom’s experience, a person selling drugs often possesses
a firearm for protection and a cell phone to arrange drug sales. In prior investigations,
Officer Lannom also saw photos of drug dealers “holding or flashing large amounts of
cash.” He looked at the pictures from defendant’s cell phone in which defendant is
displaying large amounts of cash and testified that, in his opinion, that “kind of cash” is
consistent with a drug dealer, not a drug user.

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          Officer Lannom also testified that 0.88 grams of methamphetamine is a usable
amount.
          The jury found defendant guilty as charged and in a bifurcated proceeding the trial
court found true all the alleged enhancements. The court then denied defendant’s motion
to strike the prior strike conviction and sentenced defendant to an aggregate term of 13
years eight months in state prison. Defendant filed a timely notice of appeal.
          After defendant filed his notice of appeal, the trial court redesignated defendant’s
conviction for possession of methamphetamine to a misdemeanor pursuant to Penal Code
section 1170.18, subdivisions (f) through (g). The sentence was deemed time served and
the court resentenced defendant to an aggregate term of 12 years four months in state
prison.

                                           DISCUSSION

          Appointed counsel filed an opening brief that sets forth the facts of the case and
requests this court to review the record to determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief
raising numerous claims on appeal. He contends: (1) there was insufficient evidence to
convict him of “possession or possession of sales,” (2) there was prosecutorial
misconduct, (3) the prosecutor withheld exculpatory evidence, citing Brady v. Maryland
(1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady error), and (4) he received ineffective
assistance of counsel. We affirm the judgment.

          A. Sufficiency of the Evidence

          Defendant contends there was insufficient evidence to convict him of possession
or possession for sale. In support of his contention, defendant argues he had no money
when he was arrested, he did not live in the home where he was arrested, he was “not
fully aware of the narcotic,” and there was no evidence proving he knew about the




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narcotics. We conclude there was sufficient evidence to convict defendant of possessing
methamphetamine and possessing heroin for the purpose of sale.
       “ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] . . . “[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citation.]’ ” (People v. Nelson (2011) 51 Cal.4th 198,
210.) Reversal on the ground of insufficiency of the evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support . . .’ ” the jury’s finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       Here, the heroin and the methamphetamine were found within defendant’s reach in
a closet where defendant appeared to be hiding from the police. It was the expert’s
opinion that the heroin was packaged for sale and not for personal use and the
methamphetamine was a usable amount. A gun was found in the room with defendant as
well as a cell phone. Pictures on the cell phone, taken only days earlier, showed
defendant holding the gun and displaying a large amount of cash. According to the
expert, people who sell drugs often keep a firearm for protection and use a cell phone to
arrange drug sales. The expert also testified that, in his experience, he has seen photos of
drug dealers “holding or flashing large amounts of cash.” On defendant’s cell phone
were pictures of defendant displaying a large amount of cash.




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       Based on this evidence, the jury could reasonably conclude the drugs were in
defendant’s possession and he intended to sell the heroin. Accordingly, substantial
evidence supports defendant’s convictions.

       B. Prosecutorial Misconduct

       Defendant also contends the People engaged in misconduct by conducting an
improper investigation and introducing irrelevant photographs of defendant holding
money, which served no purpose other than to “make . . . defendant seem he was a drug
dealer.” Defendant failed to raise these objections in the trial court. They are thus
forfeited on appeal. (People v. Thomas (2012) 54 Cal.4th 908, 937-938.)

       C. Brady Error

       Defendant next contends the People committed Brady error by withholding
exculpatory evidence, namely DNA and fingerprint tests from the pill bottles that were
“inconclusive.” The record, however, does not include any report on DNA and
fingerprints from the pill bottles. In fact, the only reference to DNA and fingerprint
evidence is Officer Shippen’s testimony that he submitted a request for “CSI to print and
DNA” the gun found inside the apartment but never received a report. Accordingly, the
record does not support defendant’s contention.

       D. Ineffective Assistance of Counsel

       Defendant further contends he received ineffective assistance of trial counsel. We
are not persuaded.
       “ ‘ “[If] 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.’ [Citations.] A claim of ineffective assistance in such a case is




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more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
       Here defendant contends trial counsel failed to call a private investigator to testify
that during his investigation he interviewed a witness who said the drugs found in the
closet with defendant did not belong to defendant. Trial counsel was never asked for any
explanation as to why he failed to call the investigator and there is none provided to us.
There could easily be a satisfactory explanation, such as the statement would be hearsay
and not subject to an exception, or the witness with whom the investigator spoke was not
credible.
       Defendant also contends trial counsel was ineffective for advising him not to “cop
out to the hand weapon.” Assuming that was the advice trial counsel gave defendant,
counsel was never asked for any explanation as to why he so advised defendant and there
is none provided to us. Again, there could easily be a satisfactory explanation. For
example, if admitting the gun charge would not have resulted in a reduction in the
charges or enhancement allegations as part of plea negotiations, the admission would be
of no benefit to defendant.
       In sum, defendant has failed to establish he received ineffective assistance of trial
counsel.

       E. Wende Review/Clerical Error

       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
       We did, however, find a clerical error that requires correction. At sentencing, the
trial court ordered defendant to pay $260 “in penalties and assessments.” The abstract of
judgment does not include those penalties and assessments. “The oral pronouncement of
judgment controls over any discrepancy with the minutes or the abstract of judgment.
[Citations omitted.]” (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) Accordingly,


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the trial court must prepare a corrected abstract of judgment reflecting the $260 in
penalties and assessments. (Ibid.)

                                       DISPOSITION

       The judgment is affirmed. The clerk of the superior court shall prepare an
amended abstract of judgment reflecting the $260 in penalties and assessments ordered
by the trial court and forward a certified copy to the Department of Corrections and
Rehabilitation.



                                                        HULL                  , J.



We concur:



      BLEASE                , Acting P. J.



      MURRAY                , J.




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