Opinion
C083506
03-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DANNY LEE CLARK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE009785)
Defendant Danny Lee Clark was arrested after driving without a license while carrying 15.1 grams of methamphetamine in the folded cuff of his pant leg. A jury convicted him of possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)). After the court found several prior conviction allegations true, including a strike prior, it sentenced him to an aggregate term of 13 years in state prison.
Prior to sentencing, the court denied defendant's motion for new trial in which he argued that the verdict was contrary to the evidence and that the prosecution belatedly disclosed misleading information about its narcotics expert thereby violating his due process rights. Raising the same arguments on appeal, defendant contends the court abused its discretion in denying his motion for new trial. Finding no abuse of discretion, we shall affirm the judgment.
FACTS AND PROCEEDINGS
On May 17, 2016, Detective Lizardo Guzman of the Sacramento County Sheriff's Department initiated a traffic stop on a vehicle defendant was driving for several vehicle and driving infractions. At the time, defendant was on parole and subject to search.
Officers searched defendant and the car. A clear plastic sandwich bag was found in the folded cuff of defendant's pant leg. The plastic bag was twisted or knotted and melted at the top, and contained a crystalline substance. Later tests revealed that the bag contained 15.1 grams of methamphetamine. Although a small amount of cash was found in the car, no weapons, scales, pay-owe sheets, cell phones, drug paraphernalia, or other contraband was found in the car or on defendant. According to Detective Guzman, at the time of his arrest defendant did not exhibit symptoms of being under the influence of methamphetamine, or of coming down from a methamphetamine high.
Defendant was arrested and charged in an amended information with possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378—count one), transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)—count two), and driving without a valid California driver's license (Veh. Code, § 12500, subd. (a)—count three). It was further alleged that defendant had previously been convicted of a serious or violent felony which constituted a strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and that he had served seven prior prison terms (§ 667.5, subd. (b)). Defendant pleaded not guilty to the charges and denied the enhancements.
The amended information also included a fourth count for driving a motor vehicle without valid registration (Veh. Code, § 4000, subd. (a)), but the People later dismissed the charge.
Undesignated statutory references are to the Penal Code.
At the preliminary hearing, the prosecution called Detective Guzman, its only witness, as an expert in methamphetamine sales. Detective Guzman testified to the circumstances of the stop and the discovery of the methamphetamine. He also testified that, based on his training and experience, narcotics sellers who use other people to transport drugs for sale will use a melted knot on the packaging so that the buyer knows the package had not been tampered with upon delivery. Based on the amount of the methamphetamine defendant was carrying as well as the packaging, Detective Guzman opined that defendant possessed the drugs for sale.
On cross-examination, Detective Guzman stated that he had only ever seen the melted knot packaging when a person, or "mule," transports drugs for the purpose of sale. Although he conceded that cell phones, pay-owe sheets, large amounts of cash, scales, and weapons could be indicia of narcotics sales, he testified that those items were not always present in a sales case and the absence of those items did not change his opinion that defendant had possessed the methamphetamine for sale.
On the day set for trial, the prosecutor provided an updated witness list to defense counsel. In addition to Detective Guzman, the list included Detective David Treat, who searched defendant, Caitlin Little, a criminalist who tested the narcotics, and Detective Darryl Meadows of the Sacramento County Sheriff's Department, the prosecution's narcotics expert. During a hearing that morning on motions in limine, defense counsel advised the court that she had not received any discovery regarding Detective Meadows, and she requested, at a minimum, a summary of his anticipated testimony and the basis of his opinion. The prosecutor responded that Detective Meadows had not prepared a written report; she said she would ask him for the requested information.
Two days later the prosecutor provided defense counsel with a paragraph summarizing Detective Meadows's qualifications and the basis of his opinion. The paragraph stated: "I am currently employed as a narcotic investigator with the Sacramento County Sheriff's Department. I have been a sworn Peace Officer for approximately 23 years and have provided expert testimony on no fewer than 10 occasions in both State and Federal Court. I have made no fewer than 20 arrests for possession, possession for sale and manufacturing of methamphetamine. Based on the hypothetical scenario presented to me it is my opinion that the amount (15g) is possessed for purposes of sale based on the amount." Defense counsel acknowledged receiving the summary and did not request additional information.
During trial, Detective Guzman and Detective Treat testified about the circumstances surrounding defendant's arrest as well as the discovery of the crystalline substance in the melted, knotted bag found in defendant's pant leg. Little testified that she tested the substance and confirmed it was 15.1 grams of methamphetamine.
Detective Meadows testified as the prosecution's narcotics expert on possession of methamphetamine for sale. He had been a narcotics investigator for approximately 16 years and had in excess of 400 hours of formal training. He also worked for two years as an undercover officer purchasing and selling methamphetamine, and he was one of only six people in the sheriff's department responsible for dismantling methamphetamine labs. Detective Meadows had conducted well over 200 investigations for possession for sales or transportation for sales of methamphetamine, and had testified as an expert in over 50 cases.
Based on a hypothetical tracking the facts of the case, Detective Meadows opined that the methamphetamine was possessed for sale. His opinion was based primarily on the amount of the drugs. The melted knot indicated that the drugs had been sealed, and that either a dealer had prepackaged it or someone had "been hired as a runner to take it from point A to point B," and that the dealer wanted to prevent tampering. He testified that during his undercover experience, not all individuals selling narcotics would have a scale, pay-owe sheets, or a weapon.
On cross-examination, Detective Meadows said it was not always common for drug dealers to have cell phones because having a cell phone puts everyone at risk. He explained, for example, that if a drug runner had a phone with him and got arrested, then everyone in the runner's contacts "now has to drop their phone and get a new phone number." He also acknowledged that packaging materials, scales, pay-owe sheets, cell phones, large denominations of money, and weapons could be indicative of sales, but he said those items were not always present in sales cases.
On redirect, Detective Meadows reiterated the point of drug contacts having to get new phones if a runner gets arrested. He also explained that although he had testified approximately 50 times that drugs were possessed for sale, he had also been involved in numerous cases or investigations where he determined that the drugs were not possessed for sale but were possessed for personal use.
Defendant's mother and girlfriend testified on his behalf. They each testified that defendant used drugs and that they gave him money to support him and his habit. Both denied ever seeing defendant sell narcotics.
During closing, the prosecutor argued that although there was no evidence of pay-owe sheets, cell phone messages, or any confession, the amount of the methamphetamine and Detective Meadows's expert testimony showed defendant possessed the narcotics for sale. A personal drug user, she emphasized, does not "go out and buy a hundred and fifty doses ahead of time. They just don't." She also argued that the melted knot was "a way to seal [the methamphetamine] either when he picked it up from who he bought it from to go and sell later or to keep it closed and to protect the amount that's in there. There's nothing to show that he was using on that day."
Defense counsel argued in closing that defendant used methamphetamine, but did not sell it, and asked the jury to convict defendant of the lesser included offense of possession. Counsel emphasized that Detective Meadows was not involved in arresting or investigating defendant; he just happened to be on-call when the prosecutor needed an expert. She attempted to discredit his opinion by arguing that in the approximately 50 times he had testified for the prosecution, he had always concluded the defendant possessed the drugs for sale. This was so regardless of whether common indicia of sales such as scales, money, large drug quantities, and weapons were present or not.
Defense counsel also addressed the drug mule theory during closing. She argued: "Since I don't get a rebuttal argument, I have to address every potential argument the District Attorney's making from the get-go. [¶] So I'm assuming that maybe [the prosecutor will] get up here and say well, you know, maybe he was just a runner, so you can convict him of the transportation because of that. [¶] Well, I would disagree, because the District Attorney still has to prove that he, Danny Clark, not someone else, intended to actually sell drugs, and specifically that methamphetamine."
In rebuttal, the prosecutor cautioned the jury to consider the totality of Detective Meadows's responses and not just his responses during cross-examination. She also reminded the jury that while defendant attempted to discredit Detective Meadows's opinion as biased because he had testified approximately 50 times that narcotics were possessed for sale, Detective Meadows had also explained the numerous investigations that he had done where he concluded drugs were possessed for personal use. He testified that the facts of each case were different, and that cases had to be evaluated on their own merits.
During deliberations, the jury sent a note to the trial court asking, "For Count 1 does the prosecution must prove [sic] that the defendant himself was intending to sell the meth or that it was merely intended to be sold by anyone?" The court responded to the jury's question as follows: "The requisite mental state of 'intent to sell' can be satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally. That is, the defendant must possess either (1) the specific intent to sell the controlled substance personally or (2) possess the specific intent that someone else will sell the controlled substance. People v. Parra (1999) 70 Cal.App.4th 222, 227. [¶[ As to Count 1, you must determine whether the defendant possessed the drugs for sale, or whether he possessed them for personal use."
The jury found defendant guilty of all counts. Defendant waived his right to a jury trial on the prior conviction allegations, and the court later found the allegations true.
Defendant moved for a new trial pursuant to section 1181 and on nonstatutory grounds, arguing: (1) that he was deprived of notice of the "nature and cause" of the charges against him; (2) that the defense was misled as to the nature of the prosecution's expert testimony; and (3) that the verdict rendered was contrary to the evidence. The People responded in part that based on the testimony elicited at the preliminary hearing, defendant was on notice that a drug mule theory was possible, and that defendant made tactical decisions that did not render his trial unfair.
The court denied the motion for new trial, finding the charging document properly advised defendant that he was accused of transporting methamphetamine for sale, the jury instructions and case law made it clear that the element of possession for sale could be met by either possession for the purpose of personally selling the drug to another or possession for the purpose of delivering it to another who will sell it to others, that based on the preliminary hearing, defendant was aware of a possible drug mule theory, and that the prosecution's experts at the preliminary hearing and at trial testified consistently. The court also found substantial evidence supported the verdict.
The court sentenced defendant to an aggregate term of 13 years in state prison; the midterm of three years for count two, doubled to six years for the strike prior, plus seven consecutive years (one year each) for the seven prior prison term enhancements. The court also sentenced defendant to the midterm of two years, doubled to four, on count one and stayed the sentence under section 654. Defendant received a 90-day concurrent sentence for count three. Defendant timely appealed.
DISCUSSION
Defendant contends his convictions on counts one and two must be reversed, or, alternatively, reduced to the lesser included offenses of simple possession of methamphetamine because the court erred in denying his motion for new trial, which violated his federal due process rights under the Sixth and Fourteenth Amendments. He argues the evidence was contrary to the verdict, and that the prosecution belatedly disclosed misleading information about its expert, Detective Meadows.
Under section 1181, subdivision (6), a trial court may grant a new trial or modify the verdict to a lesser included offense when the verdict is "contrary to law or evidence." (§ 1181, subd. (6).) Section 1181 provides in relevant part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial . . . [¶] . . . [¶] 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed." (§ 1181, subd. (6).)
In determining whether the verdict is contrary to the evidence for purposes of a new trial motion, the trial court "independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' " (Porter v. Superior Court (2009) 47 Cal.4th 125, 133, italics omitted.) "The court extends no evidentiary deference in ruling on a section 1181(6) motion for new trial." (Porter, at p. 133.) "If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to [the] . . . evidence.' " (Ibid.; § 1181, subd. (6).)
Courts have also granted new trial motions on nonstatutory grounds such as denial of a fair trial after being deprived of an opportunity to present a defense. (People v. Davis (1973) 31 Cal.App.3d 106, 109-110.) Defendant asserts both statutory and nonstatutory grounds for a new trial here.
" ' "The determination of a motion for new trial rests so completely within the [trial] court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) " ' "[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background." ' " (Ibid.)
We conclude there is no basis for disturbing the trial court's denial of defendant's new trial motion.
I
The Evidence Was Not Contrary to the Verdict
Defendant first argues that the verdicts on counts one and two were contrary to the evidence. Not so.
Defendant's convictions were based primarily on Detective Meadows's expert testimony. It is well settled that the testimony of a single witness is sufficient to support a conviction. (People v. Price (1992) 4 Cal.App.4th 1272, 1274-1275 [court did not abuse its discretion in denying motion for new trial where testimony of one witness supported conviction].)
Here, Detective Meadows testified that 15.1 grams of methamphetamine was equivalent to approximately 150 individual doses, and that in his experience it would be unusual for a methamphetamine user to buy such a large quantity of the narcotic. Based on the amount, he opined that the drugs were possessed for sale rather than personal use.
Detective Meadows had conducted over 200 investigations for possession for sales or transportation for sales of methamphetamine, and had testified as an expert in over 50 cases. He had been a narcotics investigator for approximately 16 years and had in excess of 400 hours of formal training. He also worked for two years as an undercover officer purchasing and selling methamphetamine. Based on this extensive training and experience, we cannot say the trial court abused its discretion in finding his opinion was sufficient to establish defendant possessed the methamphetamine for sales rather than for personal use.
Defendant's argument that because Detective Meadows did not personally know defendant and his drug habits his expert opinion was insufficient to support the verdict is without merit. Experts in criminal matters often do not personally know the defendant on trial. Their expertise is not based on their personal knowledge of the defendant, but rather their specialized training and experience in a particular field. Here, Detective Meadows was properly qualified as an expert in methamphetamine sales, and the trial court could reasonably rely on his opinion when independently determining that sufficient evidence supported defendant's convictions in counts one and two.
Equally unavailing is defendant's argument that the trial court erred in relying on Detective Meadows's opinion because he had testified as a narcotics expert approximately 50 times and had always concluded the drugs were possessed for sales regardless of whether other sales indicia were found. The trial court presided over the trial and observed Detective Meadows's testimony on these issues. The court heard Detective Meadows testify that each case had to be decided on its own facts, that drug dealers sometimes but not always had indicia of sales such as packaging materials, scales, pay-owe sheets, cell phones, large quantities of cash, and weapons, and that he had conducted numerous investigations where he concluded that a person possessed drugs for personal use. The court did not err in weighing this evidence in the People's favor.
Likewise, defendant's assertion that the only evidence of sales was Detective Meadows's allegedly surprise testimony regarding runners is unpersuasive. As the above discussion makes clear, there was ample evidence from which the court could independently determine that defendant did not possess the 15.1 grams of methamphetamine for personal use. The evidence showed that defendant possessed an amount equal to 150 individual doses of methamphetamine in a heat-sealed package—something Detective Meadows, in his expert opinion, testified was not consistent with personal use.
After independently weighing the evidence as required, the trial court reasonably concluded that sufficient evidence supported defendant's drug convictions. The court, therefore, did not err in finding that the evidence was not contrary to the verdicts.
II
Belated Disclosure of Expert
Defendant next contends that the prosecution not only failed to timely disclose information about its expert witness but that the information it did belatedly disclose was misleading. Because he did not have proper information about Detective Meadows, including impeachment information, defendant claims his trial was fundamentally unfair and the trial court should have granted a new trial on this nonstatutory ground. We disagree.
Section 1054.1 (the reciprocal-discovery statute) requires the prosecution to disclose to the defense "[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial" (§ 1054.1, subd. (a)), and "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts." (§ 1054.1, subd. (f).) " 'Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial.' " (People v. Verdugo (2010) 50 Cal.4th 263, 280; §§ 1054.1, subd. (c), 1054.7.) A violation of section 1054.1 is subject to the harmless error standard announced in People v. Watson (1956) 46 Cal.2d 818, 836. (Verdugo, at p. 280 [violation of reciprocal-discovery statute is basis for reversal only where it is reasonably probable that the omission affected the trial result].)
In this case, the prosecutor did not disclose Detective Meadows as a witness until the day the case was assigned to trial. After defense counsel requested a summary of Detective Meadows's anticipated testimony and the basis of his opinion because she had not received any discovery on him, the prosecutor provided a paragraph summarizing Detective Meadows qualifications and stating that it was his opinion, based on the amount of the methamphetamine, that defendant possessed the drugs for sale.
Thus, the prosecutor failed to comply with section 1054.1. No reason appears in the record for the late disclosure. Defendant argues that the error cannot be considered harmless because the late disclosure misrepresented Detective Meadows's experience by significantly downplaying the number of times he had testified as an expert and the number of narcotics arrests he had made. He also argues that the paragraph summary of Detective Meadows's testimony did not disclose a sales theory based on being a mule or drug runner, and therefore he was surprised when that theory was presented at trial. Finally, he contends he was prevented from filing a Pitchess motion seeking potential impeachment evidence against Detective Meadows. We are not persuaded.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). --------
While it is true that Detective Meadows had conducted more investigations and arrests and testified as an expert more times than disclosed in the paragraph summary, defendant fails to articulate how the failure to disclose these details about his expertise resulted in an adverse outcome at trial. Defense counsel extensively questioned Detective Meadows on his training, qualifications, and on his past expert experience. Counsel aptly got Detective Meadows to concede that every time he had testified as an expert, he opined that narcotics were possessed for sale, and that he had never served as a defense expert. Given counsel's thorough cross-examination of Detective Meadows, the jury, and, later, the trial court, had an adequate opportunity to properly evaluate his qualifications, expertise, and potential biases.
Defendant's claim of surprise fares no better. He argues that he could not anticipate that Detective Meadows would testify that a drug mule or runner might not have a phone because it put people at risk, and that had the summary of his testimony included such a theory he may have presented evidence, through his mother or girlfriend, explaining the absence of a cell phone. Defendant should not have been surprised. The fact that he did not have a cell phone in his possession was raised and its significance explored during the cross-examination of Detective Guzman by defense counsel at the preliminary hearing, following Guzman's testimony suggesting that defendant possessed the methamphetamine as a drug mule. At trial, the absence of a cell phone was not offered by the prosecution to support its theory of guilt. Rather, the absence was raised by defense counsel during the cross-examination of Detective Meadows to suggest the contrary: that those who deal in drugs usually carry cell phones and thus the absence of a cell phone would be exculpatory. The response provided by Detective Meadows—that dealers and drug mules may not always have cell phones—should have been anticipated in light of the earlier testimony of Detective Guzman.
Finally, defendant contends that he was prejudiced because he was deprived of the opportunity to file a motion pursuant to Pitchess, supra, 11 Cal.3d 531, 537-538, to discover potential complaints in Detective Meadows's personnel file to impeach him. During trial, the court prohibited defense counsel from asking Detective Meadows about an alleged incident in which he was present when other officers supposedly tampered with an evidence locker. Had Detective Meadows been timely disclosed as a witness, defendant argues that he could have explored the incident and potentially others through a Pitchess motion.
"Under California law, the procedures that the Legislature enacted to codify [the Supreme Court's] Pitchess decision allow defendants access to certain information in the arresting officer's personnel records that is 'material' to their defense." (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7; Evid. Code, §§ 1043-1045.) "To show the requested information is material, a defendant is required to 'establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' " (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.)
Here, defendant's defense to the drug charges was that he was a methamphetamine user. In other words, he possessed the methamphetamine for personal use and not for sales. Defendant did not claim that the drugs had been planted or that the methamphetamine seized by Detective Treat was different than the substance Little analyzed and confirmed was 15.1 grams of methamphetamine. In fact, he asked the jury to convict him of possession as a lesser included offense to the charges. Thus, the jury had to decide whether that amount of methamphetamine was possessed for sales or personal use.
It is not reasonably probable that complaints in Detective Meadows's personnel file as described by defendant would have been material to the issue the jury was called upon to decide in accepting or rejecting defendant's personal use defense. Detective Meadows did not arrest defendant and he played no part in investigating the case. He merely served as the prosecution's expert witness because he happened to be on call when the case was tried.
We also note that the prosecutor disclosed during trial that no Brady material existed for Detective Meadows. (See Brady v. Maryland (1963) 373 U.S. 83 (Brady).) "Under Brady, [citation] the prosecution must disclose to the defense any evidence that is 'favorable to the accused' and is 'material' on the issue of either guilt or punishment." (City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 7.) "Evidence is material under the Brady standard 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " (Id. at pp. 7-8.) "The prosecution's disclosure duty under Brady applies even without a request by the accused; it pertains not only to exculpatory evidence but also to impeachment evidence." (Id. at p. 8.) "Because Brady's constitutional materiality standard is narrower than the Pitchess requirements, any citizen complaint that meets Brady's test of materiality necessarily meets the relevance standard for disclosure under Pitchess." (Id. at p. 10; Evid. Code, § 1045, subd. (b).)
The undisputed facts of the case and defendant's defense, together with the fact that no impeachment evidence was required to be disclosed under Brady based on the record before us, leads us to conclude that defendant was not prejudiced even if the prosecution's late disclosure of Detective Meadows as a witness prevented him from filing a Pitchess motion.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. MURRAY, J.