Filed 2/25/13 P. v. Kaufmann CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B239026

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA053422)
         v.

MAIK KAUFMANN,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of the County of Los Angeles,
Charles A. Chung, Judge. Affirmed but remanded with instructions.
         Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Chung L. Mar and Zee
Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
                                   INTRODUCTION


       Following trial, a jury found defendant and appellant Maik Kaufmann (defendant)
guilty of possession for sale of a controlled substance and maintaining a place for the sale
or use of a controlled substance. On appeal, defendant contends that the trial court
abused its discretion when it allowed testimony concerning a text message. Defendant
also contends that he received ineffective assistance of counsel because his trial counsel
failed to request limiting instructions as to evidence admitted against a codefendant who
pleaded no contest prior to the close of evidence. And defendant argues that the trial
court incorrectly instructed the jury as to the elements of one of the charged crimes. In a
supplemental brief, defendant maintains that he is entitled to additional conduct credits
and that the abstract of judgment should be corrected to reflect his aggregate sentence
pursuant to California Rules of Court, rule 4.452.
       Given the strength of the evidence in support of the findings of guilt on the two
charged crimes, we hold that defendant has failed to demonstrate that he was prejudiced
by any of the three claimed errors on appeal. We further hold that defendant is entitled to
the additional custody credits he claims and that the abstract of judgment should be
corrected to reflect accurately his conduct credits and aggregate sentence. We therefore
affirm the judgment of conviction, but remand with instructions to correct the abstract of
judgment to reflect the additional conduct credits to which defendant is entitled and to
reflect defendant’s aggregate sentence.




                                             2
                              FACTUAL BACKGROUND


       On May 13, 2011, Los Angeles County Deputy Sheriff Russell Deloof made a
traffic stop and arrested Billy Cassanoleimkuhler for, inter alia, possession for sale of
methamphetamine. He told the deputy where he bought the drugs and from whom he
bought them.
       On May 20, 2011, Deputy Deloof stopped defendant’s vehicle. During the stop,
defendant told the deputy that he lived in a pink trailer close to Division Street.
       On June 26, 2011, Deputy Deloof made a traffic stop at Division Street and
Avenue E in Lancaster. He arrested the suspect, David Knickerbocker, for possession of
methamphetamine. When Deputy Deloof asked Knickerbocker where he had purchased
the methamphetamine, Knickerbocker told him that he purchased it from Mike and Bob
who lived in a pink trailer located in a trailer park at Division Street and Avenue F-4.1
       Based on the information Deputy Deloof learned during the three traffic stops, he
obtained a search warrant for trailer 21 located at 47455 Division Street. On July 12,
2011, at approximately 5:30 a.m., Los Angeles County Sheriff’s Deputy Mark Madrid
was part of the entry team that executed the search warrant at the trailer park located at
47455 Division Street, trailer 21. The team had seven members and three or four
additional deputies contained the perimeter at the location. Deputy Deloof was not part
of the entry team. Deputy Madrid was the first member of the team to enter the trailer.
He entered through a sliding glass door into the living room area. Defendant and two
females were in the living room sitting on an L-shaped couch. The three occupants were
ordered down on the floor. Defendant took a position on the floor near where a package
of methamphetamine was later recovered.
       According to Deputy Deloof, defendant and the two females were removed from
the trailer and detained in patrol cars. In one of the female’s pockets, deputies recovered

1
      Knickerbocker testified at trial and denied telling Deputy Deloof where he
purchased the methamphetamine and who sold it to him.


                                              3
a clear plastic baggie containing methamphetamine, and underneath the front of the
couch they recovered another baggie containing methamphetamine.2 On a table in front
of the couches, deputies recovered several items: a glass tray with a white powdery
substance on it; $306 in small denomination U.S. currency; two electronic digital scales
next to the glass tray; “pay owe” sheets with names and dollar amounts written on them;
defendant’s wallet with his picture identification; four larger baggies filled with smaller
individual baggies; and three cell phones on the table and one on the floor between the
couch and table.
       One of the four cell phones recovered had a text message from codefendant Nick
McMullen that read, “Cops are here raiding Cowboy’s.”3 The text message was dated
July 12, 2011, the date the deputies executed the search warrant at defendant’s trailer.
       The deputies also observed surveillance equipment comprised of two monitors in
the living room, one of which was showing a live feed depicting the southern entrance of
the trailer park and the dirt road that led to the entrance of defendant’s trailer. On the
outside of the trailer, deputies located a small camera pointed in the direction of the
southern entrance. Based on the items found in trailer 21, the deputies arrested defendant
and the two females.4
       Based on his training and experience in narcotics investigations involving the sale
of methamphetamine, Deputy Madrid was asked a series of hypothetical questions based
on the searches of defendant’s trailer and McMullen’s trailer, and gave the following
opinions. According to Deputy Madrid, 1.78 grams of methamphetamine—the amount

2
       A criminalist testified, inter alia, that both baggies contained methamphetamine.
3
       Deputy Deloof was familiar with a man called “Cowboy” (Bob Manning) who
lived at the trailer park in trailer 20.
4
       Based on the search of trailer 21, deputies also searched trailer 20 occupied by
Cowboy and trailer 17 in which codefendant McMullen was located with
methamphetamine, drug paraphernalia, including a scale and a cutting agent, “pay-owe”
sheets, guns, and two deadly weapons—throwing stars or “shurikens.” As a result of the
search of his trailer, McMullen was arrested.


                                              4
recovered from under defendant’s couch—was a usable amount that would yield between
30 and 90 uses depending on dosage. He also opined that .48 grams—the amount found
in one of the female’s pockets—and .14 grams—the amount found in McMullen’s
trailer—were usable amounts. He explained that it was common for someone to both use
and sell methamphetamine.
       In Deputy Madrid’s opinion, based on the persons located in the trailer in the
hypothetical and the items recovered from that location, including the glass tray with
residue on it, the scales, the baggies, the cash, the “pay owe” sheets, the four cell phones,
and the surveillance equipment, the methamphetamine recovered from the trailer in the
hypothetical based on the search of defendant’s trailer was possessed for sale.5
       According to Deputy Madrid, dealers sometimes invite their customers to buy and
use methamphetamine at the location of the sale. Sellers of methamphetamine who also
use it do not cut the methamphetamine that they use; they only cut the methamphetamine
they sell to their customers.
       Deputy Madrid explained that dealers sometimes use females as “runners” because
if they are detained by male officers while in possession of methamphetamine, they
would not be as thoroughly searched as a male due to concerns about any appearance of
impropriety. For that reason, dealers often have females conceal methamphetamine on
their person.
       Based on the same hypothetical facts and circumstances that caused Deputy
Madrid to conclude that the methamphetamine found in the trailer was possessed for sale,
he also concluded that the trailer in the hypothetical based on the search of defendant’s
trailer was being used for the sale or use of methamphetamine.




5
      Deputy Madrid also opined that the methamphetamine found in the trailer in the
hypothetical was based on the search of McMullen’s trailer was also possessed for sale.


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                           PROCEDURAL BACKGROUND


       In an information, the Los Angeles County District Attorney charged defendant in
count 1 with possession for sale of a controlled substance in violation of Health and
Safety Code section 11378 and in count 2 with maintaining a place for selling or using a
controlled substance in violation of Health and Safety Code section 11366.6 Defendant
pleaded not guilty.
       Following trial, the jury found defendant guilty on counts 1 and 2. The trial court
sentenced defendant on count 1 to eight months to run consecutive to a three-year term
on a probation violation in case number MA047055, for an aggregate sentence of three
years, eight months.7 The trial court also imposed a concurrent two-year term on count 2
but stayed that sentence pursuant to Penal Code section 654. The trial court awarded
defendant a total of 267 days of presentence custody credit comprised of 179 days actual
custody credit and 88 days of conduct credit.8




6
       Codefendant McMullen was also charged in counts 1 and 2, as well as in count 3,
possession of a deadly weapon in violation of Penal Code section 12020, subdivision
(a)(1). Prior to the completion of testimony, McMullen pleaded no contest to all three
counts pursuant to a plea bargain.
7
        As the Attorney General notes, the abstract of judgment shows only the eight
month sentence imposed in this case. As defendant notes in his supplemental brief,
California Rules of Court, rule 4.452 provides that when consecutive determinate terms
are imposed in two cases, a single aggregate term must be pronounced, and sentences on
all determinately sentenced counts in a case must be combined as though they were all
counts in the current case. Therefore, the abstract of judgment should be corrected to
show the three-year term imposed in the probation violation case, as well as the
consecutive eight month term in this case, for an aggregate term of three years, eight
months.
8
       The abstract of judgment does not reflect that any custody credits were awarded.
As discussed below, it must be amended to show the correct amount of custody credits to
which defendant is entitled.

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                                       DISCUSSION


       A.     Admission of Text Message
       Defendant contends that the trial court committed prejudicial error when it
admitted testimony about the text message from codefendant McMullen advising that the
police were searching “Cowboy’s” trailer. According to defendant, because the owner of
the cell phone on which the message was found was not identified, the coconspirator
exception to the hearsay rule did not apply and the message was not relevant to
defendant’s consciousness of guilt.
       Assuming, arguendo, that defendant is correct and the text message should not
have been admitted, defendant failed to demonstrate that such error was prejudicial.
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [error will be deemed
harmless if reviewing court can conclude beyond a reasonable doubt that a rational jury
would have found defendant guilty absent the error]; People v. Watson (1956) 46 Cal.2d
818, 836 (Watson); and People v. McKinnon (2011) 52 Cal.4th 610, 665.) At best, the
text message supported an inference that McMullen was trying to warn someone in
defendant’s trailer that police had arrived and were searching another trailer. From that
inference, the jury arguably could have concluded that McMullen was aware of the sale
and use of methamphetamine in defendant’s trailer. But even without the message, the
other evidence of the sale and use of methamphetamine in defendant’s trailer was strong
and compelling. The baggie under the couch contained 1.78 grams, substantially more
than would be possessed for personal use. On the table near the couches where defendant
and the two females were sitting, deputies recovered a glass tray with powdery residue,
two scales, four large baggies each containing unused individual baggies, cash, and “pay
owe” sheets. One of the two females had a baggie of methamphetamine in her pocket
and there was a surveillance monitor displaying a live feed of the southern entrance to the
trailer park. And, all of this evidence was found in defendant’s trailer based on a search
warrant that had issued because two men arrested for methamphetamine possession told
police they bought it from defendant at his trailer.

                                              7
         In light of all the other evidence in support of the two charged crimes, the text
message was, at best, cumulative and unnecessary, such that even if it had been excluded,
a rational jury would have found defendant guilty of the charged crimes.


         B.     Evidence Admissible Only as to Codefendant
         In his opening brief,9 defendant next contends that he received ineffective
assistance of counsel because his trial counsel failed to request limiting instructions
concerning the use of the evidence against codefendant McMullen once he pled no
contest and was no longer a part of the trial. Defendant’s ineffective assistance
contention implicitly concedes that his trial counsel was under an affirmative duty to
request the limiting instructions in issue, but failed to do so. That concession, in turn,
raises an issue as to whether defendant forfeited the issue by failing to raise it in the trial
court.
         But even assuming, without deciding, that defendant did not forfeit that issue, he
again has failed to show that he was prejudiced by his trial counsel’s failure to request the
limiting instructions. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p.
836.) As discussed above, the evidence of defendant’s guilt on the two charged crimes
was strong and compelling. Thus, the additional evidence concerning the search of
McMullen’s trailer—which, at best, supported an inference that more than one trailer in
the park was being used for methamphetamine sales—was weak on the issue of
defendant’s guilt and cumulative in any event. Therefore, even if the jury had been
instructed to disregard the evidence relevant only to the charges against McMullen, a




9
        In his reply brief, defendant appears to change theories on appeal and argue that
the trial court’s failure to strike the evidence against McMullen and give limiting
instructions concerning that evidence was prejudicial error, an argument that suggests the
trial court had a sua sponte duty to strike the evidence and instruct the jury. Because we
are not required to address contentions raised for the first time in a reply brief (People v.
Tully (2012) 54 Cal.4th 952, 1075), we will not entertain defendant’s new theory on
appeal.

                                               8
rational jury would nevertheless have concluded that defendant was guilty of the two
charged crimes.


          C.     Instructional Error
          Defendant also argues that the trial court incorrectly instructed the jury on the
elements of count 2—maintaining a place for the sale or use of a controlled substance.
Citing People v. Franco (2009) 180 Cal.App.4th 713, 718-719, defendant argues that the
instruction on count 2, a 2003 version of CALJIC 12.08, did not inform the jury that in
order to commit the crime charged in count 2, the defendant must allow others to use the
controlled substance because it is not a violation of Health and Safety Code section
11366 for the defendant to use the substance himself.
          The Attorney General agrees that the trial court incorrectly instructed the jury with
CALJIC 12.08, but argues that the erroneous instruction was not prejudicial. We agree.
          An instructional error that improperly omits an element of an offense, or that
raises an improper presumption, is subject to harmless error analysis. (People v. Flood
(1998) 18 Cal.4th 470, 502-503.) As noted, the error will be deemed harmless if the
reviewing court can conclude beyond a reasonable doubt that a rational jury would have
found defendant guilty absent the error. (Chapman, supra, 386 U.S. at p. 24; see Watson,
supra, 46 Cal.2d at p. 836 [California harmless error standard—reasonable probability
test].)
          Here, based on the items recovered from defendant’s trailer, the expert concluded
that the male in the hypothetical possessed the methamphetamine found in his trailer for
sale, not simply for personal use. Similarly, based on the same evidence, including that
one of the two females found in the trailer with the male in the hypothetical had
methamphetamine on her person and both women did not live in the male’s trailer, the
expert concluded that the male in the hypothetical was providing his trailer to the two
women as a place to use or sell methamphetamine. Because the hypothetical questions
were based on the items recovered from defendant’s trailer, the expert’s opinions
supported a reasonable inference that defendant was guilty of the charged crimes. Given

                                                 9
the strength of the evidence, it is clear that a rational jury would have found defendant
guilty on count 2 even if the jury had been correctly instructed on the elements of count
2.


       D.     Custody Credits
       Defendant contends in his supplemental brief that under the Penal Code section
2933 as of the time of the offense—July 11, 2011—and section 4019 as of the time he
was sentenced—January 6, 2012—he was entitled to two days of conduct credit for every
two days spent in actual custody. Under this formula for calculating his conduct credits,
defendant contends that he was entitled to 178 days of conduct credit, based on the 179
days of actual custody credit awarded by the trial court. Because the trial court awarded
defendant only 88 days of conduct credit, defendant argues that he was entitled to 90
additional days of conduct credit. The Attorney General agrees with defendant.
       Based on our review of the parties’ briefs and applicable law, we agree that
defendant was entitled to an additional award of 90 days of conduct credit, for a total
award of conduct credit of 178 days. Accordingly, the abstract of judgment must be
corrected to reflect this award.




                                             10
                                      DISPOSITION


       The judgment of conviction is affirmed, but the matter is remanded to the trial
court with instructions to amend the abstract of judgment to reflect that defendant was
sentenced on the probation violation to a term of three years and in this case to a
consecutive term of eight months, for an aggregate term of three years, eight months and
to reflect that he was awarded 178 days of conduct credit, in addition to the 179 days of
actual custody credit, for a total award of 357 days of custody credit.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  MOSK, J.


We concur:



              ARMSTRONG, Acting P. J.



              KRIEGLER, J.




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