Opinion
G056135
03-29-2019
THE PEOPLE, Plaintiff and Respondent, v. JESUS ALEJANDRO SAMANO, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF0829) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
* * *
In 2018, Jesus Alejandro Samano was convicted by a jury of possessing methamphetamine for sale (Health & Saf. Code § 11378). The trial court allowed him to remain out of custody pending sentencing. When Samano failed to appear on his sentencing date, he was sentenced in absentia to a total of five years in custody to be served in county jail. Samano appeals from that conviction and sentence. We appointed counsel to represent him.
Appointed counsel has filed a brief pursuant to the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. State of California (1967) 386 U.S. 738. In his attached declaration counsel indicated that he "thoroughly reviewed the record in this case" which consists of 328 pages of clerk's transcript and 577 pages of reporter's transcript. Counsel did not argue against Samano, but advised the court he was unable to find any issue to argue on appellant's behalf. Counsel further indicated he advised Samano that he "may personally file a supplemental brief in this case raising issues to the court's attention." Samano has not filed a supplemental brief.
We have examined the entire record and, like counsel, we have not found an arguable issue on appeal. Accordingly, we affirm the judgment.
FACTS
Following our usual standard of review on appeal, we recite the facts "in the light most favorable to the judgment." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
In December of 2014, Samano was dating a woman named Kaycee Robinson who rented a room in a residence in the City of Huntington Beach. Although he did not live there, Samano was at the home frequently and spent the night there on occasion. On December 17, 2014, plain clothes detectives from the Newport Beach Police Department arrived at the residence in the early evening to serve a search warrant. Before entering the home, they conducted surveillance of the area. At some point during the surveillance, officers observed Samano and another man arrive in separate cars. Officers observed both men approach the home through a gate before they lost sight of them. Minutes later, the officers observed one of the men drive away from the residence. Officers followed and effected a traffic stop of that individual, who was alone in his vehicle. The man was detained and searched. A bag with 3.4 grams of methamphetamine was located in his car. Roughly 20 to 30 minutes later, Samano exited the gate in front of the home. He was immediately approached by officers and detained. Officers observed him throw a single scissor blade to the ground as they approached.
The search warrant was then executed. Upon entry into the residence, officers found several people inside, including Kaycee Robinson. They searched her bedroom. Inside they found, among other items, a purse containing Robinson's California identification card, both men's and women's clothes, a digital scale, documents they characterized as "pay-owe sheets," three scissor blades, and 3.5 grams of methamphetamine. Also seized during the search process were two cells phones, one linked to Samano and the other to Robinson. Text messages along with call and message logs were later extracted from both phones; these implicated Samano and Robinson in drug sales activity. After executing the search warrant, officers searched Samano. He did not have any drugs on his person; his wallet contained more than $1,700 in cash.
Samano and Robinson were charged with possessing methamphetamine for sale. Just prior to trial Robinson entered a plea of guilty to the charge. Samano proceeded to trial alone and was convicted. It was then determined by the court that his three prior felony conviction allegations were true.
DISCUSSION
Following the Wende guidelines, we have reviewed counsel's brief and the entire appellate record. In his brief, counsel identifies four potential appellate issues:
"1. The admission of text messages sent by third parties to Robinson; and if there was error, was it arguably prejudicial?
"2. The admission of printouts of call and message logs recovered from appellant's and Robinson's phones; and if there was error, was it arguably prejudicial?
"3. Whether Officer Hayward offered an improper opinion as to an ultimate fact when he testified that in his opinion appellant and Robinson were working together to sell drugs; and if there was error, was it arguably prejudicial?
"4. Whether trial counsel should have been relieved at the sentencing hearing based on counsel's statement that he had a conflict of interest in representing appellant based on statements appellant posted about counsel on social media."
Our review of the record causes us to conclude that none of these issues, or any other issue, is reasonably arguable on appeal.
As to the first two potential issues highlighted by counsel, the trial court conducted lengthy pretrial hearings concerning the admissibility of the text messages and call and message logs extracted from the seized cell phones. The court concluded that the contested evidence was legally seized, that it was relevant, and that it was admissible. We agree. The text messages that allegedly passed between Samano and Robinson were relevant to potentially establish the conspiratorial relationship the People argued existed between the two. They were admissible under Evidence Code sections 1220 and 1223, as either party admissions or co-conspirator admissions. Whether these messages were in fact what the People alleged they were was a question of fact that was properly for the jury to answer.
The third potential issue involves application of Evidence Code section 801, which deals with expert witnesses, to the testimony of Officer Hayward. The prosecutor, on direct examination, engaged in the following exchange with her investigating officer:
"Q. Detective Hayward, did you have an opinion on whether or not Miss Robinson was working with the defendant?
"A. Yes.
"Q. What is that opinion?
"A. That they were working together.
"Q. Based on what information?
"A. Based on the text messages mainly between the two of them and the people if you read the text messages on Miss Robinson's phone, they refer to each other and it's very obvious they are working in concert in this drug business."
As framed by the court and counsel, the issue at trial focused largely, if not exclusively, on a single factual question: since Samano was not found with any drugs on his person, and he did not reside at the house in which the drugs were located, did he actually or constructively possess the drugs seized by police with the intent to sell them? Defense counsel was transparent with respect to his strategy which was to challenge the people's evidence related to his client's alleged involvement in the illegal drug-related activities. Nonetheless, when the district attorney proffered these questions, counsel did not object.
We believe any objection would have been futile. It is well established that "[t]here is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case." (People v. Wilson (1944) 25 Cal.2d 341, 349 (Wilson).) "'[T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case.'" (Ibid.)
In People v. Valdez (1997) 58 Cal.App.4th 494 (Valdez), the court was required to determine "the propriety of expert opinion concerning whether defendant acted for the benefit etc. of a gang." (Id. at p. 507.) Citing Wilson, the court determined that expert testimony on this "ultimate issue" was appropriate. And so it is here.
In any event, as noted above, counsel failed to object to these questions when they were asked. Samano has therefore waived any error involving these questions. (Valdez, supra, 58 Cal.App.4th at p. 505.) Samano might raise this issue pursuant to a claim of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668.) But we are in no position based on the current record to evaluate such a claim or formulate any opinion as to its potential viability. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
Finally, counsel alerts us to the fact that at sentencing, in Samano's absence, trial counsel engaged in this exchange with the court:
"The Court: Do you know where your client is?
"Counsel: I do not.
"The Court: Have you been in touch with him?
"Counsel: I have not. He has been in touch with me indirectly. He posted on my social media website, if you will, a long dissertation that I was probably retiring or wanted to become a judge. There was a lot of other scurrilous information that was left thereon, but that is the only time I heard from him directly or indirectly."
Counsel thereafter suggested that this post might create a "direct conflict" between him and Samano. The court proceeded to discuss this issue at some length with both the prosecutor and Samano's counsel. After considering both counsel's thoughts on the subject, the court determined that this post did not create a conflict of interest that prevented counsel from appearing on Samano's behalf at sentencing.
We have examined this issue and, like counsel and the trial court, have found little legal guidance. We are, however, persuaded by trial counsel's concession that, had Samano appeared as ordered for sentencing, trial counsel would not have declared a conflict in the face of any expression of dissatisfaction by his client with the jury's verdict. As observed by the trial court, dissatisfaction with the verdict on the part of a convicted client "is nothing new in the system." We are aware of no authority that such dissatisfaction creates a conflict of interest between a client and his trial counsel that would prevent counsel from continuing to represent his client through the sentencing process.
As we said at the outset, our review of this entire record has disclosed to us no issue reasonably arguable on appeal. This includes our examination of the circumstances under which the trial court elected to sentence Samano in absentia after he failed to appear on the appointed date. We find the court acted on this issue, as it did throughout Samano's trial, within its appropriate range of discretion.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: FYBEL, ACTING P. J. THOMPSON, J.