People v. Balden
| Decision Date | 14 March 2017 |
| Docket Number | F071445 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES BALDEN, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION*
APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.
Suzanne Marie Morris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo- A jury found Michael James Balden guilty of illegal possession of a firearm and two misdemeanor drug offenses. He argues the trial court abused its discretion in allowing amendment of the information at the close of the prosecution's evidence to add a count for misdemeanor possession of hydrocodone. He also argues there was insufficient evidence to support the imposition of an enhancement. We reject each of these arguments.
However, we requested the parties brief the question of whether defense counsel was ineffective for failing to object to the testimony that led to the amendment of the information to add the possession count. We conclude this is the rare case where an ineffective assistance of counsel argument can prevail on direct appeal instead of a habeas corpus proceeding as there is no possible explanation for defense counsel's failure to object. As a result, we reverse the conviction for the possession count, and remand the matter to the trial court for resentencing.
The complaint contained four counts: (1) residential burglary (Pen. Code, § 459),1 (2) grand theft of a firearm (§ 487, subd. (d)), (3) possession of a firearm by a felon (§ 29800, subd. (a)(1)), and (4) misdemeanor possession of hydrocodone, a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The complaint also alleged as enhancements (1) the victim was over the age or 60 within the meaning of section 1203.09, subdivision (f) (count 1), and (2) Balden had suffered two prior convictions within the meaning of section 667.5, subdivision (b) (counts 1, 2, and 3).
At the commencement of trial, the prosecutor filed the first amended information without objection by defense counsel. The changes in the first amended information as filed include (1) the first enhancement refers to section 1203.09, subdivision (a) insteadof subdivision (f), (2) the charge in count two was reduced from a felony to a misdemeanor, (3) the charge in count four was changed to misdemeanor being under the influence of methamphetamine, a controlled substance, in violation of Health and Safety Code section 11550, subdivision (a), and (4) the prior prison term enhancement referred to only counts 1 and 3. The possession of hydrocodone count was eliminated from the complaint.
After the testimony, the prosecution moved to amend the information by adding a misdemeanor possession of hydrocodone in violation of Health and Safety Code section 11350, subdivision (a), as count five. The trial court granted the motion over the objection of defense counsel.
Clayton Carl Farlow, the 89-year-old victim, met Balden through his church. Balden had been staying with some church members, but one of them was injured, so they asked if Farlow would rent a room to Balden. Farlow, who had converted his basement into an apartment, agreed to do so. There is a stairway from the apartment up to the main living area where Farlow lived, as well as an entrance from the outside to the apartment.
Farlow had guns on display at his house that he and his sons had collected. When Balden moved in, he commented that he could get into trouble with the police if he was found with guns, so Farlow agreed to store the guns in Farlow's bedroom closet. Farlow believed Balden helped him move the guns into the closet.
Approximately four months after Balden moved into the house, Farlow discovered two guns were missing. In the box for one of the guns was a fabricated item made from junk designed to resemble the size and weight of a rifle.
Since Farlow discovered the two guns were missing, he had not found any other items in the home missing. Nor did Farlow find any signs of forced entry into thehouse. However, at that time the house was usually unlocked. Farlow did not believe anyone other than Balden knew the rifles were stored in the closet.
San Joaquin County Deputy Sheriff Andrew Theodore was employed by the Sonora Police Department at the time of the incident. He responded to Farlow's house in response to Farlow's report of the theft. He later interviewed Balden with probation officer Anthony Johnson, who was supervising Balden while he was on post release community supervision. At one point in the interview, Balden stood up from the bed on which he had been sitting. When Balden stood up, Theodore observed a white pill directly beneath where Balden had been sitting. Theodore identified the pill as hydrocodone. Theodore also testified that Balden did not have a prescription for the pill.
During Theodore's interview, Johnson observed behavior that suggested Balden was using illegal drugs, so he obtained a urine sample from Balden. The parties stipulated testing revealed the presence of methamphetamine.
Balden testified in his defense. He explained he had some health issues, including renal failure. He had been working for various individuals in the area. When he had to move, one of the families for whom he had been working suggested he contact Farlow. Farlow and Balden agreed to an arrangement, and Balden moved into the basement apartment. Over time their relationship expanded, and the two spent time together.
Balden did not know Farlow had guns when he moved into the house. One day Balden discovered a rifle in one of the rooms, and he told Farlow he could not be around guns because he was on probation. Balden asked Farlow to lock his guns in a closet. Balden did not see the guns again.
Farlow also showed Balden some gold coins he kept in a filing cabinet. Balden pointed this out to suggest, apparently, if he were going to steal from Farlow he would have taken the coins, not guns. Balden explained he did not know who took Farlow's guns, but he identified two people who he thought may have done so. Regarding thehydrocodone, Balden said he had a prescription for the drug, and he informed Theodore of this fact.
Theodore testified on rebuttal that Balden did not tell him he had a prescription for the hydrocodone.
The jury could not reach a verdict on the burglary count and on the theft of a firearm count. A mistrial was declared on these counts and they were eventually dismissed after motion by the prosecution. The jury found Balden guilty of (1) felony possession of a firearm, (2) misdemeanor being under the influence of methamphetamine, and (3) misdemeanor possession of hydrocodone.
Prior to the commencement of trial, Balden admitted the two prior prison term enhancements.
The trial court sentenced Balden to the midterm of two years for the firearm charge, plus one year for each of the prior prison term enhancements. The trial court imposed a one-year sentence for each of the misdemeanor drug charges to run concurrent to the firearm charge. The total prison sentence imposed was four years.
Balden asserts the trial court erred in two respects during the trial. First, he argues the trial court erred by allowing the prosecutor to amend the information to add the possession of hydrocodone count after the prosecution's case had been presented to the jury. Second, Balden argues the trial court erred when it imposed one of the prior prison term enhancements because it was not supported by substantial evidence.
As stated in the summary, prior to trial the prosecutor dismissed the misdemeanor possession of hydrocodone count, and instead charged Balden with being under the influence of methamphetamine. However, Theodore testified that when he interviewedBalden he found a white pill where Balden had been sitting, and he identified the pill as hydrocodone.
Based on Theodore's testimony, the prosecutor moved to amend the information by adding a misdemeanor possession of hydrocodone count. The trial court granted the motion over the objection of defense counsel. Balden now argues the trial court's ruling was an abuse of discretion.
The parties agree on the relevant law. Section 1009 permits the amendment of an information at any stage of the proceedings, but the information cannot be amended to add a charge not shown by the evidence taken at the preliminary hearing. (People v. Goolsby (2015) 62 Cal.4th 360, 367.) (Id. at pp. 367-368.) We review the trial court's ruling for an abuse of discretion. (People v. Miralrio (2008) 167 Cal.App.4th 448, 458.)
Here, it is clear that the amendment did not cause Balden any prejudice. Balden was charged with possession of hydrocodone in the original complaint. He was held to answer to the charge after the evidence was presented at the preliminary hearing. The charge was pending up until the commencement of trial. Accordingly, defense counsel would have prepared any defense to the...
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