P. v. Dissinger

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Filed 1/30/07 P. v. Dissinger CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
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THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM EDWARD DISSINGER,
Defendant and Appellant.
C050329
(Super. Ct. No.
05F1154, 03F9381)
A jury found defendant William Edward Dissinger guilty of
possession of a firearm by a felon (Pen. Code, § 12021, subd.
(a)(1)),1 possession of a controlled substance (Health & Saf.
Code, § 11350, subd. (a)) and bringing a controlled substance
into jail (§ 4573), all of which were committed while defendant
was on probation in another case.
On appeal, defendant contends the trial court erred by (1)
failing to conduct further inquiry regarding two jurors’ ability
1 Hereafter, undesignated statutory references are to the Penal
Code.

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to be fair and impartial given their employer-employee
relationship, (2) failing to instruct the jury, sua sponte, with
CALJIC No. 2.23, (3) imposing separate but concurrent sentences
for the two drug-related offenses rather than staying the
sentence for possession pursuant to section 654, (4) imposing a
10 percent administrative fee, and (5) imposing consecutive
sentences in violation of defendant’s constitutional rights to a
jury trial and due process. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant reported to the Shasta County Jail Annex to
participate in the sheriff’s work release program while on
probation for a felony conviction for transportation of a
controlled substance in case No. 03F9381. A search of his
person revealed two Soma pills and seven Vicodin pills.
Defendant told sheriff’s deputies he had a prescription for the
pills, but that he had left the prescription bottles at home.
Deputies searched defendant’s car, which was registered to
his father, and found an unregistered, unloaded handgun in the
trunk. Defendant assured deputies the gun was not stolen, and
told them he bought it at a garage sale from a friend named
“Mark,” but had put it in the trunk of his car the previous
night because he was going to get rid of it.
Inside the car, deputies also found a prescription bottle
labeled “Hydro-Aceta” in the name of Renee Moreland, defendant’s
girlfriend. The bottle contained 92 Vicodin pills and two Soma
pills. Defendant told deputies the bottle belonged to his
girlfriend.

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Defendant was charged with possession of a firearm by a
felon (count 1), possession of a controlled substance (count 2)
and bringing a controlled substance into jail (count 3). The
parties stipulated to the following: (1) defendant was
previously convicted of a felony, (2) the term “Hydrocodone” is
synonymous with Vicodin, (3) the yellow pills found in
defendant’s pocket and car were Vicodin and the white pills were
Soma, and (4) a single tablet of Vicodin is a usable quantity.
At trial, Moreland testified that defendant acted as her
caregiver, helping her take her pills and keeping her
prescriptions in the car and away from her to make sure she did
not overdose. She also testified that she purchased the handgun
at a garage sale to be used for protection, but did not tell
defendant about it, hiding it in her garage. She said she
planned to “get rid of it” after defendant completed his jail
sentence, and that she put the gun in the trunk of defendant’s
father’s car one or two days before the defendant reported to
the work release program so that she could sell it to “one of
[defendant’s] friends.” Moreland admitted she knew defendant
drove his father’s car, but denied knowing anything about his
prior felony conviction. She could not remember the location of
the garage sale where she bought the gun.
Defendant testified that he was surprised there was a gun
in the trunk, and that he only told deputies it was his to
protect his father and Moreland, even though he did not know
Moreland had purchased the gun. He also testified that he kept
Moreland’s medication in the car on various occasions “for her

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protection,” and that he “forgot they were in the glove box” the
day of the search.
The jury found defendant guilty on all counts. The court
sentenced defendant to the midterm of three years in state
prison for bringing a controlled substance into the jail, one-
third the midterm, or eight months, for possession of a firearm
by a felon, to run consecutively, and the midterm of two years
for possession of a controlled substance, to run concurrently,
for an aggregate sentence of three years eight months in state
prison. The court also imposed fees and fines, including a $600
restitution fine pursuant to section 1202.4, a $600 restitution
fine (suspended) pursuant to section 1202.45, and a 10 percent
administrative fee pursuant to section 1202.4, subdivision (1),
and ordered defendant to register as a drug offender.
As for the violation of probation in case No. 03F9381, the
court revoked probation and imposed a sentence of three years in
state prison, to run concurrently with the sentence imposed in
the present case.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Juror Inquiry
Defendant contends the trial court abused its discretion by
not making further inquiry regarding the ability of two jurors
who were in an employer-employee relationship to be fair and
impartial.

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The People argue that there was no basis for further
inquiry and no abuse of discretion because there was neither
evidence nor an accusation of improper influence or other juror
misconduct. We agree.
Defendant suggests that the mere fact that an employer-
employee relationship existed between the two jurors put the
court on notice that good cause existed to discharge either one
or both of the jurors, thus triggering the need for further,
more extensive inquiry as to the jurors’ ability to be fair and
impartial. He cites People v. Farnam (2002) 28 Cal.4th 107,
People v. Burgener (1986) 41 Cal.3d 505 and People v. McNeal
(1979) 90 Cal.App.3d 830 as support for that contention. We are
not persuaded.
The cases cited by defendant address the court’s duty of
inquiry once an allegation of misconduct has been made.
Burgener dealt with allegations of juror intoxication during
deliberations. (People v. Burgener, supra, 41 Cal.3d at
pp. 516-517, overruled on other grounds in People v. Reyes
(1998) 19 Cal.4th 743, 753-754.) In McNeal, the court addressed
a statement by a juror during deliberations that her personal
knowledge about the case would affect how she voted. (People v.
McNeal, supra, 90 Cal.App.3d at p. 835.) At issue in Farnam was
the ability of a juror to be fair and impartial in a case
involving robbery after having been robbed walking back to the
courthouse after a lunch break during trial. (People v. Farnam,
supra, 28 Cal.4th at pp. 140-142.) Those cases are inapposite.

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Here, the court delivered jury instructions prior to
opening statements and, in an apparent response to those
instructions, Juror No. 175001 thought it prudent to let the
court know he employed Juror No. 177998 as his nanny. When the
court inquired whether Juror No. 175001 had discussed the case
with Juror No. 177998, Juror No. 175001 replied, “Not at all. I
will see her in the evening.” The court then explained the
importance of each juror making up his/her own mind, and that
jurors, particularly those who have “some relationship outside
of court, like husband and wife, or employer and employee,” were
not to “let that relationship in any way influence their
decision.”
There was never any indication or accusation of improper
conduct between the two jurors. Indeed, there was an express
representation that they had not discussed the case at all.
While defendant may speculate as to what might or could have
occurred, there is no evidence in the record that any misconduct
did occur such that the kind of inquiry contemplated by Burgener
was necessary or required. (See In re Hamilton (1999) 20
Cal.4th 273, 294 [juror misconduct occurs when there is a direct
violation of the oaths, duties, and admonitions imposed on
jurors, such as when a juror conceals bias on voir dire,
consciously receives outside information about the case on which
she sits, discusses the case with nonjurors, or shares improper
information with other jurors].) The record is also devoid of
any evidence that defendant raised the issue or stated an
objection at trial, and he cannot do so for the first time now.

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(In re S.B. (2004) 32 Cal.4th 1287, 1293; People v. Saunders
(1993) 5 Cal.4th 580, 590.) We conclude that the trial court
did not abuse its discretion.
II
Sua Sponte Instruction to Jury
Defendant contends the evidence of his prior conviction for
transportation of a controlled substance was highly prejudicial,
requiring the court to instruct the jury, sua sponte, with
CALJIC No. 2.23 directing them to limit their use of the prior
conviction to assess defendant’s credibility only. We disagree.
As defendant properly concedes, a trial court generally
“‘is under no duty to instruct sua sponte on the limited
admissibility of evidence of past criminal conduct.’” (See
People v. Padilla (1995) 11 Cal.4th 891, 950, overruled on other
grounds in People v. Hill (1998) 17 Cal.4th 800, 823, quoting
People v. Collie (1981) 30 Cal.3d 43, 64.) However, defendant
relies on the very limited exception to that rule set forth in
People v. Lang (1989) 49 Cal.3d 991, that a duty arises where
“unprotested evidence of past offenses is a dominant part of the
evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose.” (Id. at
p. 1020.) He urges that, because the case “turned entirely on
the credibility of [defendant] and the girlfriend with medical
problems that he cared for and whose prescription bottle had
been found in the glove box of [defendant’s] car,” the prior
conviction for transportation of a controlled substance was
“highly prejudicial and not admissible for any other valid

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purpose.” Not so. Defendant was charged with possession of a
firearm by a felon, making the issue of his prior conviction
directly relevant to prove an element of that charge. Although
the parties stipulated to the existence of the prior conviction,
defendant elected to testify on direct examination regarding the
specific nature of that offense and the fact that he pled guilty
to the charge. Evidently, defendant concluded the relevance of
that information outweighed any prejudicial effect it might
possibly have.
It is also worth noting that defendant made no request that
the court give the instruction to the jury. “If defendant
believed the instructions were incomplete or needed elaboration,
it was his obligation to request additional or clarifying
instructions.” (People v. Dennis (1998) 17 Cal.4th 468, 514.)
The court had no duty further to instruct sua sponte. (Ibid.;
People v. Saille (1991) 54 Cal.3d 1103, 1120.) We conclude the
court had no duty to give CALJIC No. 2.23 on its own volition to
limit the application of the prior conviction.
We are similarly not persuaded by defendant’s alternative
argument that his trial counsel’s failure to request CALJIC
No. 2.23 amounted to ineffective assistance of counsel. To
establish ineffective assistance, defendant bears the burden of
showing (1) counsel’s performance was deficient, falling below
an objective standard of reasonableness under prevailing
professional norms, and (2) absent counsel’s error, it is
reasonably probable that the verdict would have been more
favorable to him. (Strickland v. Washington (1984) 466 U.S. 668

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[80 L.Ed.2d 674]; People v. Hawkins (1995) 10 Cal.4th 920, 940,
disapproved on other grounds in People v. Blakeley (2000) 23
Cal.4th 82, 89.)
In order to show trial counsel’s performance was deficient,
defendant must show that counsel “failed to act in a manner to
be expected of [a] reasonably competent attorney[] acting as [a]
diligent advocate[].” (People v. Pope (1979) 23 Cal.3d 412,
425.) If the record fails to show why counsel acted or failed
to act as he did, the contention fails unless counsel failed to
provide an explanation upon request or there could be no
satisfactory explanation. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-268; People v. Pope, supra, 23 Cal.3d at
p. 425.)
We accord great deference to counsel’s reasonable tactical
decisions. (People v. Weaver (2001) 26 Cal.4th 876, 925; see
also People v. Freeman (1994) 8 Cal.4th 450, 484.) “‘Tactical
errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available
facts.’ [Citation.]” (People v. Weaver, supra, at p. 926.)
Here, the record is silent as to why trial counsel did not
request CALJIC No. 2.23. As for whether a satisfactory
explanation exists for counsel’s conduct, defendant concludes
there “could be no satisfactory explanation,” but fails to
explain why. It is, of course, entirely possible trial counsel
recognized that a request for such a limiting instruction would
be futile where defendant’s status as a convicted felon was an
element of one of the counts against him, and defendant himself

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testified regarding the nature and disposition of that
conviction as part of his defense.
Because we find defendant has not met his burden with
respect to the first prong of the test, we need not address the
second. (Strickland v. Washington, supra, 466 U.S. at p. 697
[80 L.Ed.2d at p. 699].) We reject defendant’s claim of
ineffective assistance of counsel.
III
Penal Code Section 654
Defendant contends the sentence for possession of a
controlled substance should have been stayed pursuant to section
654 because both drug-related offenses were “committed pursuant
to one objective--to have drugs available while [defendant]
participated in the work release program.” We disagree.
The search of defendant’s person revealed seven Vicodin and
two Soma tablets. For that, he was charged with bringing a
controlled substance into the jail. The discovery of 92
additional Vicodin tablets and two Soma tablets in defendant’s
car led to the additional possession charge. Given the absence
of evidence to demonstrate whether or not the pills defendant
took with him into the jail were part of those found in his
vehicle, the trial court could have inferred that the two were
unrelated. We conclude there was no error in sentencing.
IV
Imposition of 10 Percent Administrative Fee
Defendant contends the 10 percent administrative fee
imposed by the court must be stricken because “the county will

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not incur any costs in collecting restitution where [the
defendant] has been sentenced to state prison,” and because,
defendant argues, it was not imposed by the court at the time of
sentencing. Again, we disagree.
Section 1202.4, subdivision (l) gives the court clear
authority to impose an administrative fee not to exceed 10
percent of the restitution amount ordered. (§ 1202.4, subd.
(l).) The record reflects the court’s imposition of that fee.
When the court imposed sentence, and particularly when it
calculated restitution fines, the clerk sought clarification,
asking, “is it 600 for both cases or should there be 600 for the
fresh case plus the ten percent and then stay 600 and for the
violation should it be 600 stayed? I believe I have to have two
different funds.” The probation officer responded, “I think
that’s fine.” The court responded, “Let me make sure, I –-
yeah. That’s right.” We conclude from that discussion that the
court imposed a 10 percent administrative fee and, given its
authority to do so and defendant’s failure to object, we reject
defendant’s contention that the fee should be stricken.
V
Jury Trial on Consecutive Sentences
Finally, defendant contends the court’s “imposition of the
consecutive term” violated his Fifth, Sixth and Fourteenth
Amendment rights to a jury trial on “the factors upon which his
punishment was increased beyond the prescribed statutory
maximum.” Defendant is incorrect.

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The jury found defendant guilty of three separate offenses.
The court exercised its discretion by imposing sentence as to
each offense, and by ordering that the terms for counts 1 and 3
run consecutively and the term for count 2 run concurrently,
rendering a total aggregate sentence of three years and eight
months. “[A] jury trial is not required on the aggravating
factors that justify imposition of consecutive sentences. Under
section 669, the judge has discretion to determine whether to
impose sentences consecutively or concurrently. ‘Judicial
factfinding in the course of selecting a sentence within the
authorized range does not implicate the indictment, jury-trial,
and reasonable-doubt components of the Fifth and Sixth
Amendments.’” (People v. Black (2005) 35 Cal.4th 1238, 1262,
overruled in part by Cunningham v. California (Jan. 22, 2007,
No. 05-6551) ___ U.S. ___, ___ L.Ed.2d ___, 2007 U.S. LEXIS
1324, quoting Harris v. United States (2002) 536 U.S. 545, 558
[153 L.Ed.2d 524].) In any event, the three-year eight-month
sentence did not exceed the statutory maximum of four years
possible for defendant’s conviction on count 3. We reject
defendant’s contention.
We note, however, that the abstract of judgment incorrectly
reflects the sentence pronounced by the trial court, attaching
the wrong term to the wrong offense. Under our inherent
authority to correct such clerical errors, we order the abstract
of judgment be corrected to reflect a three-year term as to
count 3 (bringing a controlled substance into jail), an eight-
month consecutive term as to count 1 (possession of a firearm by

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a felon), and a two-year concurrent term as to count 2
(possession of a controlled substance). (People v. Mesa (1975)
14 Cal.3d 466, 471 [pronouncement of judgment is a judicial
function, while entry into minutes and abstract of judgment is a
clerical function; therefore, any inconsistency is presumed to
be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119,
123 [appellate court has authority to correct such clerical
errors].)
DISPOSITION
The judgment is affirmed. The trial court shall prepare an
amended abstract of judgment as directed in this opinion, and
shall forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.
CANTIL-SAKAUYE , J.
We concur:
BLEASE , Acting P.J.
BUTZ , J.

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