Filed 2/28/14 P. v. Adams CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
v.                                                                       A134308
JOYCE ADAMS,
                                                                         (Lake County
         Defendant and Appellant.                                         Super. Ct. No. CR927390)

In re JOYCE ADAMS,
         on Habeas Corpus.                                               A139103




         This is an appeal from final judgment after a jury convicted defendant Joyce
Adams of two counts of possession for sale of methamphetamine, one count of
possession for sale of marijuana and one count of possession of a controlled substance,
and the trial court found true that defendant had two prior convictions pursuant to Health
and Safety Code section 11370.2 and was on bail when she committed the second count
of possession for sale of methamphetamine.1 Defendant challenges this judgment on
direct appeal and by petition of habeas corpus, which we consider collectively. For
reasons set forth below, we affirm and summarily dismiss the habeas corpus petition.




1
         Unless otherwise stated, all statutory citations herein are to the Penal Code.


                                                             1
                 FACTUAL AND PROCEDURAL BACKGROUND
       In October 2011, an information was filed charging defendant with two felony
counts of possession for sale of methamphetamine, the first on July 15, 2011 (count one)
and the second on August 19, 2011 (count four) (Health & Saf. Code, § 11378); one
felony count of possession of controlled substances for sale on July 15, 2011 (Health &
Saf. Code, § 11351); and one felony count of possession of marijuana for sale on July 15,
2011 (Health & Saf. Code, § 11359).2 It was further alleged that, as to counts one, two
and four, defendant had suffered prior convictions pursuant to Health & Safety Code
section 11370.2, and that, as to count four, she committed the offense while released on
bail pursuant to former section 12022.1.
       These charges stemmed from two separate arrests at defendant’s Clear Lake
residence, which consisted of a “single wide” mobile home with an enclosed porch
entered through a steel security door outside a regular door. The first arrest occurred on
July 15, 2011, when Lake County Sheriff’s Detective Lucas Bingham entered
defendant’s residence through the porch pursuant to a search warrant. Defendant did not
answer the door when Detective Bingham knocked, but was present inside after a deputy
sheriff forced open the door. Detective Bingham first went to an area with a computer
desk, which stood to the right of a small wooden dresser. In a dresser drawer he found a
working digital scale with a residue resembling methamphetamine, a black plastic tray
with a substance resembling methamphetamine, a clear plastic bag with a similar
substance, ten prescription pill bottles, several bags of marijuana and numerous small
Ziploc bags. Each of the ten pill bottles contained pills and, collectively, they contained
120 morphine pills and 29 hydrocodone pills. In addition, one bottle was labeled
“oxycodone” with the name “Charlene McCracken,” and contained 56 oxycodone pills.
Another bottle was partially labeled “morphine.”
       Detective Bingham also found the following items in the residence: a post-it note
with notations identifying marijuana types and prices, 85 individual baggies containing
2
       The First Amended Consolidated Information, Nos. CR 927390 and CR 926945,
was filed on October 31, 2011.


                                             2
marijuana, $942 in cash (mostly in $20 bills), 20.7 grams of methamphetamines
(approximately $2,000 street value)3, about 3.4 pounds of marijuana (anywhere from
$1,200 to $4,000 street value, depending on quality), and a monitor showing video from a
camera aimed at the driveway. Based on the results of this search, Detective Bingham
arrested defendant after reading her Miranda rights.
       On August 19, 2011, Detective Bingham returned to defendant’s residence with a
search warrant. Defendant was again present, and did not appear under the influence of
drugs. During the search that ensued, Detective Bingham found a flat polished rock on
the computer console with a “white crystalline substance” on top. Officers also found an
additional quantity of methamphetamine in a small bag in the dresser (for a total of two
grams inside the residence), as well as two scales (one covered in a residue resembling
methamphetamine), more Ziploc bags (some unused and others holding jewelry-type
beads), a glass pipe suitable for smoking methamphetamine, and United States currency.
       Outside, Detective Bingham found a bag containing approximately four more
grams of methamphetamine. He found this bag in an area near a bush where a sergeant
had taken defendant when they began the search. About ten minutes earlier, Detective
Bingham had heard the sergeant ask defendant what she had in her hands and saw her
turn away before showing her hands, prompting him to later search the area.
       Detective Bingham thus arrested defendant a second time for possession of
methamphetamine for sale, this time while still on bail for the July 2011 charges.
       Trial began November 16, 2011. Detective Bingham testified regarding his expert
opinion that defendant possessed the various drugs for sale. In particular, with respect to
the marijuana, Detective Bingham noted the amount and packaging of marijuana (small
amounts in individual baggies), the post-it note identifying marijuana types and prices,
the large amount of cash, and the scales all indicated possession for sale. With respect to
the pills, he noted most prescription drug abusers possess only a single type of narcotic

3
        This “20.7” figure was derived by the deputy sheriff who weighed the
methamphetamine seized from defendant’s residence once they returned to the sheriff’s
office.


                                             3
rather than, as here, at least three types (one bottle with someone else’s name on it). And,
with respect to the methamphetamine, he opined the significant amounts possessed by
defendant, as well as the multiple scales and large amount of cash, indicated her intent to
sell. According to Detective Bingham, for a typical heavy user like defendant, the
amount found in the first search would suffice for 80 to 160 doses.4 He had never heard
of a user regularly ingesting one gram of methamphetamine daily; rather, he believed a
heavy user would regularly use about 0.5 gram daily. Finally, Detective Bingham added
that on neither occasion did defendant appear to be under the influence.
       Defendant also testified in self defense, describing herself as a 67-year old, heavy
user and addict of both methamphetamine and marijuana. With respect to the former, she
had been an intermittent addict since age 18 and, recently, a heavy user, ingesting about a
gram daily. Defendant would weigh this amount out on a scale, and then smoke or snort
every hour or so throughout the day. She generally would buy methamphetamine one
ounce (28.5 grams) at a time for $600 from a friend in Fresno. With respect to the
marijuana, she procured it at different times from different sources, which explained the
large amount found at her residence. Defendant had bought some of the marijuana years
ago, and had bought some of it about a month ago, paying $500 for a half pound. All the
methamphetamine and marijuana found inside her residence was for her own personal
use. Defendant knew nothing about the bag of methamphetamine found in the bush
outside her residence.
       Defendant explained that she used a video security system for her safety because
she feels vulnerable living alone. The plastic bags were for her jewelry beads and other
things, not drugs. As for the $927 in cash, defendant stated that she recently cashed a
$600 check from her neighbor, for whom she works as a home care provider. Defendant
had also saved money to cover her $450 monthly rent and her $600-to-$700 monthly
4
        Criminalist Anthony Valerio later testified that, on July 15, 2011, a total of
approximately 18.67 grams of methamphetamine was seized, slightly less (2.03 grams)
than the total described by Detective Bingham; and that on August 19, 2011, a total of
3.32 grams of methamphetamine was in the bag found outside in the bush, again slightly
less (0.68 gram) than the total described by Detective Bingham.


                                             4
drug habit. She earned monthly income from social security ($700), employment as a
home care provider ($800 to $1,000) and, during the summer, employment from event
catering (about $2,000 total monthly income).5
       Finally, with respect to the oxycodone and hydrocodone pills, defendant explained
she was safe-keeping them for her friend, Charlene McCracken, who was homeless and a
frequent visitor to defendant’s home. Similarly, defendant was safe-keeping the
morphine pills for a friend, “Lori Davis,” who had removed the label from the bottle.
       In rebuttal, Detective Bingham returned to the stand and questioned defendant’s
testimony that she used about a gram of methamphetamine daily. Specifically, he opined
this amount was simply too high based on what other addicts had told him in the past
regarding their drug consumption. One woman who was a heavy user, Detective
Bingham recalled, told him she smoked from 0.2 to 0.4 grams daily, and that when she
once used a gram, it made her pass out for 30 minutes, kept her high for three days, and
then, afterward, made her “crash” for five to eight days. Detective Bingham also opined
that, if defendant had used a gram the day before their search of her residence, she would
have been displaying lingering effects of the drug, which was not the case.
       On November 18, 2011, a jury found defendant guilty as charged as to counts one,
three and four; and guilty of the lesser included offense of simple possession of a narcotic
as to count two (Health & Saf. Code, § 11350). The trial court thereafter found true the
two prior conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)), and the
on-bail enhancement (§ 12022.1).
       At the December 19, 2011 sentencing hearing, the trial court imposed the upper
three-year term on count four (possession of methamphetamine for sale); three
consecutive eight-month (1/3 the middle) terms for counts one, two and three (possession
for sale of methamphetamine and marijuana, and simple possession of a narcotic); two
consecutive three-year terms for the prior conviction enhancements, and an additional

5
        After her July arrest, defendant owed money to the friend who bailed her out of
jail; however, she earned a fair amount of money working at a July fair, which allowed
her to buy about a half ounce of methamphetamine around August 1, 2011.


                                             5
two-year consecutive term for the “on-bail” enhancement. The trial court thus sentenced
defendant to a total term of 13 years in jail, with an order for her release under Probation
Department supervision upon service of eight years. This timely appeal followed.
                                        DISCUSSION
       Defendant raises two issues by direct appeal and three by petition for writ of
habeas corpus (writ petition). Specifically, she contends on appeal that: (1) the trial
court deprived her of the constitutional right to trial by jury by failing to instruct as to her
defense to count two, possession of a narcotic; and (2) defense counsel deprived her of
the constitutional right to effective assistance of counsel by failing to raise certain
objections during sentencing. She contends by writ petition that: (1) the prosecutor’s use
of false evidence deprived her of due process; and defense counsel denied her effective
assistance of counsel by: (2) failing to challenge this use of false evidence, and
(3) failing to adequately and accurately convey to her the terms of the prosecution’s pre-
trial plea offer. We address each issue below.
I. Was it prejudicial error to fail to instruct on defendant’s defense to count two?
       Defendant argues the trial court violated her constitutional right to have the jury
instructed on her theory of the case by failing to give an instruction on her defense to
count two, possession of a narcotic.6 Specifically, defendant’s defense to this possession
offense is that she “innocent[ly] possess[ed]” the pills on behalf of two friends, Charlene
McCracken and Lori Davis. Defendant testified in support of this defense that
McCracken had a prescription for the oxycodone pills, but nonetheless asked defendant
to keep them because she was homeless and feared they would be lost or stolen. Davis,
defendant explained, asked her to keep the morphine pills because Davis could not keep
them safe from the children and other adults with whom she lived.
       The following applicable legal principles are not in dispute. “A trial court must
instruct on the law applicable to the facts of the case. [Citation.] In addition, a defendant

6
       Recall that, on count two, the jury convicted defendant of simple possession
(Health & Saf. Code, § 11350), which is the lesser included offense of the original
charge, possession of narcotics for sale (Health & Saf. Code, § 11351).


                                               6
has a right to an instruction that pinpoints the theory of the defense. [Citation.]” (People
v. Panah (2005) 35 Cal.4th 395, 486.) However, at the same time, “courts have the duty
to screen out invalid theories of conviction [or defense], either by appropriate instruction
or by not presenting them to the jury in the first place.” (People v. Guiton (1993) 4
Cal.4th 1116, 1131.) Moreover, a “trial court must give a requested instruction only if it
is supported by substantial evidence, that is, evidence sufficient to deserve jury
consideration. [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) “ ‘It has
long been the law that it is error to charge the jury on abstract principles of law not
pertinent to the issues in the case. [Citation.] The reason for the rule is obvious. Such an
instruction tends to confuse and mislead the jury by injecting into the case matters which
the undisputed evidence shows are not involved.’ [Citations.]” (People v. Mills (2012) 55
Cal.4th 663, 680-681.)
       Applying these principles here, we conclude the trial court committed no error by
failing to give defendant’s proposed instruction on her “innocent possession” defense
because such defense finds no basis in California law. (See People v. Guiton, supra, 4
Cal.4th at p. 1131.) In fact, defendant directs us to no on-point legal authority for such a
defense; nor have we found any. Instead, defendant directs us to legal authority
supporting a different defense to possession that is wholly inapplicable to her case – to
wit, the defense of momentary possession of a controlled substance, which is set forth in
CALCRIM 2305. As the instruction makes clear, this defense requires possession of a
controlled substance by the defendant “in order to (abandon[,]/[or] dispose of[,]/[or]
destroy) it.” (CALCRIM 2305; see also People v. Martin (2001) 25 Cal.4th 1180, 1191-
1192 [“conclud[ing] that the defense of transitory possession devised in Mijares applies
only to momentary or transitory possession of contraband for the purpose of disposal, and
that the trial court did not err in refusing defendant’s requested instruction [that
possessing illegal drugs solely for the purpose of disposal does not constitute unlawful
possession]”].) Here, of course, there is no contention, much less evidence, that
defendant possessed the pills for any of those reasons. A trial court has no sua sponte
duty to instruct on “doctrines of law that have not been established by authority.”


                                               7
(People v. Michaels (2002) 28 Cal.4th 486, 529; see also People v. Flannel (1979) 25
Cal.3d 668, 680-683 [a trial court was not required to instruct on imperfect self-defense
until that defense was recognized by California decisions].)
       Finally, we decline defendant’s request to craft a “judicially-created exception of
lawful possession under [her circumstances] as a matter of public policy,” given the lack
of any worthy public policy that would in fact be served.

II.    Was defendant’s constitutional right to effective assistance of counsel denied
       during sentencing?
       Defendant contends her trial attorney’s failure to object during sentencing to the
trial court’s imposition of the upper term on count four and consecutive terms on counts
one through three denied her the constitutionally-protected right to effective assistance of
counsel. Defendant reasons that the trial court relied upon unsupported or otherwise
improper factors when rendering her sentence.
       To prevail on a claim of ineffective assistance of counsel, the defendant must
prove more than a failure by counsel to raise a particular objection. Rather, “defendant
must show counsel’s performance fell below a standard of reasonable competence, and
that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) “Prejudice”
in this context occurs only where defense 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.’ ” (People v. Kipp (1998) 18 Cal.4th 349, 366,
quoting Strickland v. Washington (1984) 466 U.S. 668, 686.) Further, if “a defendant has
failed to show that the challenged actions of counsel were prejudicial, a reviewing court
may reject the claim on that ground without determining whether counsel’s performance
was deficient.” (People v. Kipp, supra, 18 Cal.4th at p. 366.)
       In addition, “[i]f the record on appeal fails to show why counsel acted or failed to
act in the instance asserted to be ineffective, unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory explanation, the
claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
In applying this standard, the defendant must overcome a strong presumption that


                                             8
counsel’s conduct was sound trial strategy or otherwise within the wide range of
reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180;
People v. Bunyard (1988) 45 Cal.3d 1189, 1215.)
       Here, as defendant admits, a trial court’s sentencing decisions are left to its sound
discretion, subject to reversal on appeal only upon a showing of abuse. (People v.
Sandoval (2007) 41 Cal.4th 825, 847; § 1170, subd. (b).) It is within this context that we
consider the prudence of defendant’s trial counsel’s failure to object to certain factors
relied upon by the court to impose the upper term on count four and consecutive terms on
counts one through three.
       First and foremost, we note the absence of any explanation in the record for trial
counsel’s failure to object in these instances. Nor is there anything in the record
indicating that her trial counsel was asked to explain his actions or omissions. As such,
under the standards set forth above, we must reject defendant’s claim of ineffective
assistance of counsel on direct appeal “ ‘unless there simply could be no satisfactory
explanation.’ (People v. Pope (1979) 23 Cal.3d 412, 426.)” (People v. Kipp, supra, 18
Cal.4th at p. 367; People v. Kraft, supra, 23 Cal.4th at p. 1069.)
       Having reviewed this record, we conclude a plausible tactical explanation does in
fact exist for defendant’s trial counsel’s silence during sentencing, such that defendant’s
first ineffective assistance claim must fail: Counsel could have reasonably believed the
trial court’s sentencing decisions were within the broad scope of its discretion and, thus,
that any objection would have been futile. Specifically, with respect to the decision to
impose the upper term on count four, the trial court expressly relied on the following
facts: (1) the manner in which the crime was carried out indicated planning,
sophistication or professionalism; (2) defendant had numerous prior convictions; (3) “she
has served a prior prison term, in fact, more than one;” and (4) her prior performance on
parole was unsatisfactory. (Cal. Rules of Court, rule 4.421, subds. (a)(8), (b)(2), (b)(3),
(b)(5).) There was evidence in the record to support each fact. For example, there was
evidence that defendant had four prior convictions on three separate dates between 1988
and 1993, only two of which were used for enhancement purposes and thus could not also


                                              9
be used to support imposition of the upper term. Defendant challenges the trial court’s
reliance on the remaining two prior convictions, insisting one of them was ultimately
dismissed based upon her completion of a rehabilitation program. However, putting
aside the legal issue of whether a dismissed conviction constitutes a prior conviction for
sentencing purposes, the trial court nonetheless had discretion to consider it as reasonably
related to defendant’s recidivism. (People v. Medina (1990) 51 Cal.3d 870, 907
[evidence of dismissed charges admissible as aggravating evidence]; Cal. Rules of Court,
rule 4.420, subd. (b) [court may consider “any other factor reasonably related to the
sentencing decision”].)
       There was also evidence to support the trial court’s finding that defendant served
at least one prior prison term based on her 1988 conviction for possession of
methamphetamine for sale. While defendant questions whether the record supports the
trial court’s comment that there could be other prior prison terms, the law only requires
one prior term to support the court’s decision. (Cal. Rules of Court, rule 4.421, subd.
(b)(3) [court may consider as an aggravating factor that “defendant has served a prior
prison term”].)
       We further find no error in the trial court’s reliance on a notation in the probation
report that defendant had two parole violations, one on July 18, 1990 and another on
January 21, 1992. (§ 1170, subd. (b) [court may rely on the probation officer’s report,
among other things, when determining the proper prison term].) Defendant refers us to
California Rules of Court, rule 4.411.5, subdivision (a)(3) to support her claim that the
court could not rely on the parole violations referenced in the probation report because no
supporting facts regarding the violations were included in the report. However, the cited
rule requires factual support for references to “an arrest or charge not leading to a
conviction or the sustaining of a petition;” it says nothing about parole violations, which,
we note, appear to have been sustained and, in any event, are not actually disputed by
defendant.
       And finally, the trial court could reasonably have found the plethora of packaging
material, security camera, $942 in cash and multiple scales indicated sophistication,


                                             10
planning or professionalism. (People v. Sandoval, supra, 41 Cal.4th at p. 840
[“[a]ggravating circumstances considered by the trial court that are not set out in the rules
are not subject to clear standards, and often entail a subjective assessment of the
circumstances rather than a straightforward finding of facts”].) While defendant quibbles
with the weight of this evidence, she does not prove any abuse of discretion by the trial
court, particularly given that just one aggravating factor was required to support its
imposition of the upper term. (People v. Sandoval, supra, 41 Cal.4th at p. 839 [only
one].) It is quite likely defendant’s trial counsel realized this and, thus, reasonably opted
to stay silent.
       We reach the same conclusion with respect to the trial court’s imposition of
consecutive, rather than concurrent, terms on counts one through three. The trial court
relied on the following factors: (1) “the crimes and their objectives were predominantly
independent of one another; and (2) “Count four occurred at a different time than the
other counts,” thereby indicating multiple periods of aberrant behavior. (See Cal. Rules
of Court, rules 4.425(a)(1), 4.425(a)(3).) Defendant insists the court’s reasoning was
unsupported by the evidence. However, again, she has pointed to nothing indicating an
abuse of the trial court’s broad discretion. Specifically, the record demonstrates that
counts one, two and three involved different types and amounts of drugs and, in the case
of count two, a different purpose – to wit, 20 grams of methamphetamine for sale, 3.4
pounds of marijuana for sale, and a variety of prescription pills for personal use. As
such, given the reasonable factual basis for the trial court’s decision to impose
consecutive terms, we conclude there is no basis for concluding that defendant’s
constitutional right to effective assistance of counsel was violated by her counsel’s failure
to object to the court’s decision. (People v. Osband (1996) 13 Cal.4th 622, 728-729
[“Only a single aggravating factor is required to impose the upper term [citation], and the
same is true of the choice to impose a consecutive sentence [citation]”].)
       Finally, even if there were one or more valid objections to be made with respect to
the trial court’s sentencing decisions, this fact, without more, would not prove
defendant’s trial counsel had been constitutionally ineffective. As several courts have


                                              11
recognized, given the realities of criminal trials, there are potential claims in nearly all
cases that in retrospect could (and perhaps should) have been raised. (See People v.
Dunkle (2005) 36 Cal.4th 861, 916 [noting that the range of permissible mitigating
evidence admissible during sentencing is “virtually unlimited”], overruled on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Yet, “the omission of a
claim, whether tactical or inadvertent, does not of itself demonstrate ineffectiveness
unless it was objectively unreasonable, meaning that the omitted claim was one that any
reasonably competent counsel would have brought.” (In re Reno (2012) 55 Cal.4th 428,
465.) Simply put, “competent counsel may often choose to forego even a valid objection
(People v. Riel (2000) 22 Cal.4th 1153, 1197) and, in most cases, this choice is tactical
rather than proof of incompetence. (People v. Jackson (1980) 28 Cal.3d 264, 292.)
       Accordingly, we conclude defendant has failed to set forth sufficient evidence of
professional incompetence to permit her to overcome the “strong presumption” that her
counsel’s conduct during the sentencing hearing was “sound trial strategy” or otherwise
“within the wide range of reasonable professional assistance.” (People v. Burnett, supra,
71 Cal.App.4th at p. 180; People v. Bunyard, supra, 45 Cal.3d at p. 1215.)

III.   Was false evidence used against defendant in violation of due process, and
       was her attorney’s failure to object a violation of the constitutional right to
       counsel?
       Defendant next argues she is entitled to habeas relief based on false testimony
offered by prosecutorial witness, Detective Bingham. Specifically, she contends that
Detective Bingham (and the prosecutor) should have known his testimony that a heavy
user could not use a gram of methamphetamine daily was false “because it should be well
known in the law enforcement and legal professions – especially by persons who hold
themselves out as ‘experts’ – that the use of a gram of methamphetamine every day is
common among persons addicted to the substance.” Defendant thus concludes: “The
evidence [from Detective Bingham] that a heavy user could not use a gram of
methamphetamine a day was false, and it was material. The use of the false evidence




                                              12
violated California law (Pen. Code, § 1473) and petitioner’s right to due process of law
(U.S. Const., Amends. V, XIV).” The following legal principles govern this claim.
       “ ‘Penal Code section 1473, subdivision (b)(1), allows relief on habeas corpus
where the petitioner shows “substantially material or probative” false evidence was
introduced against him on the issues of guilt or punishment. We recently explained the
materiality standard for false evidence as follows: “False evidence is ‘substantially
material or probative’ if it is ‘of such significance that it may have affected the outcome,’
in the sense that ‘with reasonable probability it could have affected the outcome . . . .’
[Citation.] In other words, false evidence passes the indicated threshold if there is a
‘reasonable probability’ that, had it not been introduced, the result would have been
different. (Ibid.) The requisite ‘reasonable probability,’ we believe, is such as undermines
the reviewing court’s confidence in the outcome. [Citation.] . . . It is dependent on the
totality of the relevant circumstances. [Citation.] It is also, we believe, determined
objectively. (Cf. Strickland v. Washington [(1984)] 466 U.S. [668,] 695 [80 L.Ed.2d 674,
698 [dealing with ineffective assistance of counsel in violation of the Sixth
Amendment].)’ (In re Sassounian [(1995)] 9 Cal.4th [535,] 546.)” (In re Malone (1996)
12 Cal.4th 935, 965-966.)
       Here, for reasons set forth below, we conclude defendant’s false evidence claim
fails because she cannot establish that Detective Bingham’s expert opinions regarding the
usage patterns of methamphetamine addicts he had spoken with or been told about was
“objectively false,” which habeas law also requires. (In re Richards (2012) 55 Cal.4th
948, 963-966.) Detective Bingham testified that, in his opinion, defendant’s claim that
she used a gram of methamphetamine daily did not appear accurate based on information
he had received from other addicts, including one woman he recently spoke to who
acknowledged being a heavy user and told him she smoked from 0.2 to 0.4 grams daily.
According to Detective Bingham, this woman also told him that, when she once used a
gram, it made her pass out for 30 minutes, kept her high for three days, and then,




                                             13
afterward, made her “crash” for five to eight days.7 Detective Bingham also noted that, if
defendant had used a gram the day before their search of her residence, she would have
been displaying lingering effects of the drug, which was not the case. Detective Bingham
acknowledged, however, that he had no medical expertise or training upon which to base
his opinions regarding methamphetamine consumption; rather, his opinions were based
on his own professional experiences with addicts and other law enforcement officials
and, in many instances, were anecdotal in nature.
       Insisting Detective Bingham’s testimony was not true, defendant offers the
declaration of Rochelle Renee Miller, who attests that, during her arrest two weeks before
trial for being under the influence of methamphetamine, she told Detective Bingham,
among other things, that “she generally used a gram a day by smoking or snorting it, and
that it was not at all unusual for an addict to do so,” and that “injecting one gram all at
once had a powerful effect, but that she had done it several times.” This testimony does
appear to contradict Detective Bingham’s above-described testimony that he had never
met an addict who regularly consumed a gram of methamphetamine daily, and that one
heavy user that he recently arrested told him she used just 0.2 to 0.4 grams daily.
However, on this record, we nonetheless question whether defendant could establish that
Detective Bingham’s testimony was actually false, as opposed to a subjective, even if
mistaken, belief or recollection of past conversations. As the California Supreme Court
explains: “If, and only if, a preponderance of the evidence shows that an expert opinion
stated at trial was objectively untrue, the false evidence standard applies.” (In re
Richards, supra, 55 Cal.4th at pp. 963, 971 [habeas relief lies where “some piece of
evidence at trial was actually false” and “it is reasonably probable” that, without the
evidence, the verdict would have differed]; see also In re Pratt (1999) 69 Cal.App.4th
1294, 1314 [“ ‘the usual rule, that “evidence must be taken most strongly in support of


7
        Specifically, Detective Bingham testified that an individual he arrested two weeks
earlier for being under the influence “said that a gram of methamphetamine was the most
she had ever used [at one time]” and that she “smoked anywhere from 2/10th of a gram to
4/10th of a gram per day.”


                                              14
the order appealed from and conflicts must be resolved in favor of respondent,” is
applicable on habeas corpus review’ ”].)
       Moreover, while defendant also relies on other newly-offered evidence to prove
the falsity of the detective’s testimony, this evidence likewise fails to provide a basis for
habeas relief. For example, defendant offers the declaration of expert Halle Weingarten,
who, in defendant’s words, opined based on “[her] experience and knowledge of the
pharmaceutical literature, [that] it is common for heavy users to use a gram or more of
methamphetamine every day, because of the ‘tolerance’ they have built up for it.”
However, as the California Supreme Court explained under comparable circumstances,
“when new expert opinion testimony is offered that criticizes or casts doubt on opinion
testimony given at trial, one has not necessarily established that the opinion at trial was
false. Rather, in that situation one has merely demonstrated the subjective component of
expert opinion testimony.” (In re Richards, supra, 55 Cal.4th at p. 963.)
       Next, defendant offers “at least 11 cases which have resulted in appellate decisions
during the last 10 years” that, she claims, involved expert testimony that “heavy users of
methamphetamine use 1 gram or more per day.” According to defendant, most of these
experts in other cases were police officers, including a Lake County Sheriff’s Detective
who testified in a case for the same prosecutor involved in this case (suggesting the
prosecutor knew or should have known Detective Bingham’s testimony in this case was
false). However, as we just finished explaining, contrary expert opinions may cast doubt
on Detective Bingham’s testimony, but do not necessarily prove that his testimony was
objectively false. (In re Richards, supra, 55 Cal.4th at p. 963.) Moreover, there is a
more basic problem with defendant’s evidence. These prior appellate decisions, some
dating back several years or more, were readily available at the time of trial and, thus,
cannot be relied upon for the first time on habeas corpus. (In re Seaton (2004) 34 Cal.4th
193, 200 [“just as a defendant generally may not raise on appeal a claim not raised at trial
. . . , a defendant should not be allowed to raise on habeas corpus an issue that could have
been presented at trial,” for otherwise, “the main purpose of the forfeiture rule—to



                                              15
encourage prompt correction of trial errors and thereby avoid unnecessary retrials—
would be defeated.”].)8
       Of course, defendant may still raise as grounds for habeas relief the issue of
ineffectiveness of counsel based on her trial attorney’s failure to object to the accuracy of
Detective Bingham’s opinions. (In re Seaton, supra, 34 Cal.4th at p. 200; see also In re
Harris, supra, 5 Cal.4th at p. 834, fn. 8 [where petitioner’s habeas claim depends on facts
that could have been, but were not, placed on the record below, the claim is generally
limited to ineffective assistance of counsel].) However, the burden of proving error on
this ground is indeed quite high, as we have already explained. (Pp. 8-9, ante.) And,
here, defendant has not met this burden with respect to counsel’s failure to object to the
credibility or accuracy of Detective Bingham’s testimony.
       In fact, the record reflects defendant’s trial counsel did challenge Detective
Bingham’s testimony regarding the typical consumption patterns of heavy
methamphetamine users, albeit in a different manner than defendant now proposes.
Specifically, defense counsel directly challenged Detective Bingham’s testimony in
closing arguments, not by accusing him of perjury, but by attacking the weight of his
testimony based on his limited experience with and knowledge of methamphetamine use
and users:
“Ms. Adams has testified that she’s a heavy consumer of meth, that she’s consumed – she
consumes probably approximately one gram of meth a day. Now, Detective Bingham
testified that he thought that amount of methamphetamine seemed to be a bit much. He
testified that he never had come across anybody who used that much methamphetamine.
But he also testified that meth users who have been using for a long time will often gain
the ability to consume greater amounts of methamphetamine, and my client testified
essentially that she -- she’s a meth user since she was 18 years old. Now, she’s 67 now.
8
       Defendant’s request for judicial notice of “evidence of the record” in ten
nonpublished California appellate decisions, all of which predate these proceedings, is
denied. (See People v. Ruiz (1964) 228 Cal.App.2d 703, 707 [denying motion to produce
additional evidence on appeal where “defendant has not demonstrated that this purported
evidence was unavailable at the time of trial”].)


                                             16
So that’s 50 years, essentially, that she has been a meth user. For that length of time it’s
possible that she had obtained the ability to consume larger and larger amounts of
methamphetamine.
“Now, Mr. Bingham, I’m guessing never came across an individual who had been
consuming methamphetamine for 50 years. So he never testified that he had ever come
across a 67-year-old woman who had been consuming methamphetamine for that length
of time, so he’s never come across someone who could have possibly built up that
amount of tolerance for the methamphetamine. [¶] So just because Detective Bingham
hasn’t run across a situation where a meth user could use a gram of meth a day doesn’t
mean it’s not possible.
“He also testified that different users have different reactions to methamphetamine.
Detective Bingham is not – as he testified he’s not a medical expert, he’s not a doctor, he
doesn’t treat meth addicts, he only – his information of what meth users do comes from
the users themselves. So he doesn’t actually see them consume this methamphetamine,
he relies upon what these meth users tell them about what they consumer. [¶] Obviously,
if you’re a law enforcement officer and you’re talking to someone who is a meth user
there’s some possibility that that meth user talking to that law enforcement officer might
not always be honest with what they’re telling him. So his reliance upon his statement of
these other meth users that he’s relying upon might not be 100 percent accurate.”
       Defendant now claims her trial counsel’s closing argument was “mild as milk
toast” because the detective’s testimony could have been proved false “directly by
Rochelle Miller’s testimony” or “indirectly by producing the testimony of well-qualified
experts about tolerance and what is known in the scientific community about the amount
of methamphetamine that addicts with a high tolerance can and do consume.” However,
even if defendant is correct that another defense strategy would have been more effective,
this fact does not prove counsel’s performance constitutionally infirm. (Strickland v.
Washington, supra, 466 U.S. at p. 686 [to prove a violation of the constitutional right to
effective assistance of counsel, defendant must show “his counsel’s performance was
deficient when measured against the standard of a reasonably competent attorney”].)


                                             17
Because defendant’s trial counsel did in fact challenge the accuracy of Detective
Bingham’s opinions with respect to typical addicts’ daily methamphetamine intake, we
cannot conclude his performance was so deficient that it “resulted in prejudice to
defendant in the sense that it ‘so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.’ [Citations.]”
(People v. Kipp, supra, 18 Cal.4th at p. 366.)
       We further point out that defendant could have offered, but did not, a declaration
by her trial counsel identifying why he chose to challenge Detective Bingham’s
testimony in closing arguments rather than by calling an expert witness or another
witness (like Miller) to contradict him. In the absence of such proof we decline to
speculate that counsel’s actions or omissions were due to incompetence rather than
reasonable trial strategy (particularly in the case of Miller, who counsel may have
reasonably declined to call as a witness based on her admitted long-term heavy drug use
and state of intoxication while talking to Detective Bingham). As such, another ground
exists for rejecting defendant’s second ineffectiveness-assistance claim: “If the record
contains no explanation for the challenged behavior, an appellate court will reject the
claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.’ ” (People v.
Kipp, supra, 18 Cal.4th at p. 367.) And, finally, we add that, even assuming for sake of
argument, defendant’s counsel was constitutionally deficient, we would nonetheless
conclude no harm was done given the strength of the evidence of her possession for sale.
To name but some of this particularly strong evidence, defendant was found in possession
of large quantities of cash and narcotics, tools and packaging, including multiple scales
and small baggies, commonly used in illicit drug sales, and a home video security system
to monitor activity around her residence. Accordingly, her ineffective assistance of
counsel challenge fails on multiple grounds. (People v. Kipp, supra, 18 Cal.4th at
p. 366.)




                                             18
IV.    Was defendant’s constitutional right to effective assistance of counsel denied
       during plea bargaining?
       Defendant’s final claim is that her right to effective assistance of counsel was
denied by her trial attorney’s failure to accurately convey to her the terms of a plea
bargain offered by the prosecution prior to trial in exchange for a guilty plea. This
bargain, which defendant claims she would have accepted if accurately conveyed, was in
her own words as follows: “[P]rior to trial, she was offered under ‘re-alignment’ a 6-year
term in the county jail, consisting of 3 years of actual jail custody and 3 years of
community supervision. . . . With 1 day of conduct credit for each day of actual custody,
the 3 years would be reduced to 1 ½ years and would be further reduced by the number of
days of credit which she had already earned – probably resulting in her being incarcerated
for about 10 months.” To support her argument, defendant offers a declaration in which
she attests that defense counsel told her the offer was for six years and four months, but
failed to explain there was a three-year community-supervision component of the term.
As such, defendant attests that she mistakenly believed she would be required to serve six
years and four months of actual custody reduced to three years with half-time credits,
rather than three years of actual custody reduced to ten months with half-time credits.
       Aside from her declaration, defendant identifies but a single page of the record
that refers to a pretrial plea offer.9 This portion of the record, which is from her post-trial
sentencing hearing, states in fuller context as follows:
“[PROSECUTOR]: Your Honor, I would submit it. I ask the Court to follow the
recommendation in terms of the no probation, the upper term, the special allegations and
I believe the total would be 13 years.
“[COURT]: [Probation] also recommend a split sentence here. So after the final five
years – to be released after eight years. The final five years to be served under
community supervision of the probation department.
9
       Defendant also refers to the court minutes from an October 31, 2011 trial readiness
conference but, as the prosecution notes, there is no reference in those minutes to any
plea bargain. Moreover, neither party has provided a transcript from any hearing at
which the alleged plea bargain was made or discussed.


                                              19
“[PROSECUTOR]: Well, I don’t necessarily agree with that because it says to be
released – this is on page 16 – to be released after serving eight years, which in actuality
would be – with credits would be four years. And ─
“[COURT]: Yeah, that’s what it means.
“[PROSECUTOR]: I think that the big problem here is that if she’s on community
supervision in her home, that she was basically dealing drugs out of her home. . . .
[¶] But if she’s – if she’s out in her home after four years I don’t thing that that’s going to
be sufficient to – to prevent her from going back to dealing drugs,
“[COURT]: In your opinion should any portion of it be released with a split sentence?
“[PROSECUTOR]: Perhaps a smaller portion.
“[COURT]: Otherwise, I’m sentencing her to county jail for 13 years.
“[PROSECUTOR]: Yes, it seems very strange but that’s the law that we have.
“[COURT]: It is.
“[PROSECUTOR]: But I think at least – at the very least she should serve six years.
“[COURT]: Actual time. We’re talking about a 12-year county jail sentence with one
year suspended?
“[PROSECUTOR]: Six – yeah, six years actual time, yes. I mean she was made an offer
before she took it to trial. I think the offer at that point was six years total and she ─
[Italics added.]
“[COURT]: And do three? [Italics added.]
“[PROSECUTOR]: To do three with credits, yeah. [Italics added.] And she was well
aware of her two priors that would add on three years plus. She was on bail at the time,
that aggravates it, and she refused to take the offer.”
       As the prosecution notes, this colloquy does not describe the plea bargain in the
manner alleged by defendant. Specifically, neither the prosecutor nor the court mentions
a community-supervision component of the plea bargain that would reduce a six-year
custody requirement to three years under community supervision and only ten months of
actual time in custody. Rather, they mention only “credits” as a factor reducing a six-
year sentence to three years of actual time. Specifically, the prosecutor quite clearly


                                              20
explained: “[T]he offer at that point was six years total and she . . . [¶] To do three with
credits, yeah.” Defendant offers no declaration or other evidence from individuals
involved in the purported plea negotiations (including from her own attorney) to support
her contrary version of events, despite her burden to do so.10 (People v. Duvall (1995) 9
Cal.4th 464, 474 [“To satisfy the initial burden of pleading adequate grounds for relief,
an application for habeas corpus must be made by petition” that “(i) state[s] fully and
with particularity the facts on which relief is sought [citations], as well as (ii) include
copies of reasonably available documentary evidence supporting the claim, including
pertinent portions of trial transcripts and affidavits or declarations,” italics added]; see
also In re Clark (1993) 5 Cal.4th 750, 781, fn. 16 [same].)
       Given this limited record, we agree with the prosecution that defendant has not
made the requisite showing to warrant issuance of an order to show cause. It is well-
established that the “petitioner in a habeas corpus proceeding has the burden not only of
alleging but also proving the facts on which he relies in support of his claim for relief.”
(In re Lawler (1979) 23 Cal.3d 190, 195.) “ ‘If a criminal defendant has unsuccessfully
tested the state’s evidence at trial and appeal and wishes to mount a further, collateral
attack, “ ‘ “all presumptions favor the truth, accuracy, and fairness of the conviction and
sentence; defendant thus must undertake the burden of overturning them. Society’s
interest in the finality of criminal proceedings so demands, and due process is not thereby
offended.’ ” ’ [Citation.]” (In re Reno, supra, 55 Cal.4th at p. 451.)
       Here, defendant has not complied with these rules. As the California Supreme
Court has aptly stated: “Conclusory allegations made without any explanation of the

10
       In fact, we conclude the prosecution has provided the more reasonable version of
events: “[I]n context, petitioner’s interpretation of the prosecutor’s statement makes no
sense. The prosecutor was arguing that eight years was not a long enough sentence. She
argued that eight years, reduced by half by conduct credits to four years, is not
significantly different from six years, reduced by half by credits to three years, because
four years of custody is not that much greater than three years of custody. On petitioner’s
interpretation, the plea bargain offer was for only 10 months in custody. But it would
have made no sense for the prosecutor to argue that four years in custody is not a
significantly greater sentence than 10 months in custody.”


                                              21
basis for the allegations do not warrant relief, let alone an evidentiary hearing.” (People
v. Duvall, supra, 9 Cal.4th at p. 474.) Accordingly, we decline to issue an order to show
cause on defendant’s petition for habeas relief.
                                     DISPOSITION
       The judgment is affirmed. No order to show cause shall issue.



                                                   _________________________
                                                   Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




                                             22
