Opinion
G054445
11-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSICA EVANS et al., Defendants and Appellants.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant Jessica Evans. Kristin A. Erickson, for Defendant and Appellant Kemon Andreas Michalopoulos. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13NF3732) OPINION Appeal from judgments of the Superior Court of Orange County, William Lee Evans, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant Jessica Evans. Kristin A. Erickson, for Defendant and Appellant Kemon Andreas Michalopoulos. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After being convicted of possession for sale of methamphetamine and other charges, Jessica Evans was sentenced to probation, and Kemon Andreas Michalopoulos was sentenced to mandatory supervision. On appeal, Evans and Michalopoulos contend the trial court erred in failing to hold an in camera hearing before denying their motions to traverse the search warrant and suppress evidence discovered during a search of Evans's residence. They also contend their trial counsel was ineffective for failing to object to the prosecution's drug expert's testimony that Evans and Michalopoulos possessed methamphetamine for sale. Finally, Evans contends that one of her probation conditions is unconstitutionally vague and should be modified to include an express knowledge requirement. For the reasons set forth below, we will modify the challenged probation condition. As modified, we affirm both judgments.
I
STATEMENT OF CASE
A jury found Evans and Michalopoulos guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count one). The jury also convicted Michalopoulos of unlawful possession of a stun gun with a prior felony (Pen. Code, § 22610, subd. (a); count two), and Evans of child endangerment (Pen. Code, § 273a, subd. (b); count three).
The trial court sentenced Michalopoulos to the midterm of two years, with six months in county jail and the remainder on mandatory supervision. The court sentenced Evans to five years of probation on the condition she serve 60 days in county jail.
Evans and Michalopoulos timely appealed.
II
FACTS
A. Prosecution case
On November 12, 2013, Fullerton police officers served a search warrant at a residence (a condominium) on Pembroke Lane in the city of Placentia. The search warrant covered the Pembroke residence and the person of Timothy Sullivan. When the officers arrived, Sullivan was working on his car outside the adjoining garage.
After detaining Sullivan, the officers entered the residence. They first encountered Jeremy Digby exiting one of the bedrooms. Digby displayed symptoms of being under the influence of a controlled substance such as methamphetamine. After detaining Digby, the officers entered the bedroom, where they found Evans and Michalopoulos sitting on the bed. Officers found Evans's two minor children in another bedroom, located down the hallway.
On the bed in the bedroom where Evans and Michalopoulos were found, officers recovered two cell phones, 5.4 grams of methamphetamine in a cigarette pack, and a black duffel bag. Inside the duffel bag were five cell phones, a digital scale, a stun gun, a grocery bag and an empty plastic baggie. Michalopoulos claimed ownership of the cigarette pack and the duffel bag. Evans claimed ownership of the cell phones on the bed. An incoming text message on one of the cell phones stated, "'I need a gram.'" An outgoing text message stated: "'My phone's back on. Got bomb. Text me if you need to come by.'"
Fullerton Police Detective Kenneth Edgar testified that "bomb" is a slang term for high-quality methamphetamine. He testified that drug sellers often used multiple cell phones to avoid being tracked by law enforcement. He also testified that a stun gun could be used for offensive or defensive purposes. According to the officer, a methamphetamine user typically uses half a gram daily. Edgar opined that Evans and Michalopoulos possessed the 5.4 grams of methamphetamine for sale. His opinion was based on the quantity of methamphetamine and the presence of multiple cell phones, the digital scale, bags and stun gun. B. Defense case
Nick Morrow, a former deputy sheriff and expert on narcotics related matters, testified he interviewed Michalopoulos, who stated that he had been using methamphetamine since he was 16 years old. Michalopoulos asserted that at the time of his arrest, he was using four grams of methamphetamine daily. Morrow opined that Michalopoulos possessed the 5.4 grams of methamphetamine for personal use.
III
DISCUSSION
A. The trial court did not err in denying defense motions to traverse the search warrant without holding an in camera hearing.
Evans and Michalopoulos contend the trial court abused its discretion in denying their motions to traverse the search warrant without holding an in camera review of police reports and other documents.
1. Additional factual background
On November 6, 2013, Edgar prepared the application for a warrant to search the Pembroke condominium and the person of Timothy Sullivan. In a sworn affidavit, Edgar stated there was probable cause to believe that Sullivan was selling methamphetamine from the Pembroke location. According to Edgar, within the past 10 days (of September 6), he was contacted by a confidential informant (CI) who informed him that Sullivan was selling methamphetamine from the Pembroke location. The CI had purchased methamphetamine from Sullivan more than once in the past six months. Subsequently, Edgar and other police officers observed the CI engage in a controlled buy from Sullivan. Following the drug deal, the officers followed Sullivan to the Pembroke condominium. Edgar stated that he had seen Sullivan coming and going from the Pembroke residence on "two separate occasions within the last two weeks." Although Sullivan's driver's license showed a different address, Edgar asserted that Sullivan had "dominion, custody and control" of the Pembroke location.
The search warrant was issued on November 6, and as noted, the Pembroke residence was searched on November 12.
Prior to trial, Evans and Michalopoulos filed motions to traverse the search warrant and suppress evidence on the ground that Edgar's affidavit contained "materially false and misleading information." They argued that Edgar falsely declared that: (1) Sullivan exercised dominion and control over the Pembroke residence; (2) Sullivan was seen coming and going from the Pembroke residence on two separate occasions within the past two weeks; and (3) Sullivan participated in a controlled buy with the CI. In support of their claims, Sullivan submitted a sworn declaration wherein he stated that Edgar was "completely incorrect" about Sullivan having dominion and control over the Pembroke residence and about having seen Sullivan coming and going from the residence on two occasions within the past two weeks. According to Sullivan, only Michalopoulos, Evans and her two children stayed at the condominium "at all times." Sullivan asserted he never lived in the condominium and only had the keys to the detached garage. Sullivan further claimed it was impossible for Edgar to have seen him coming and going from the Pembroke location because he was out of town during that period. He stated that he had taken a road trip to Idaho and only returned to Orange County on November 5, 2013. Sullivan attached paperwork showing (1) he rented a car on October 22, 2013, in Orange County, (2) he was in Montana on November 1, 2013, for a traffic arraignment, and (3) he won a jackpot at an Idaho casino on November 4, 2013.
Evans and Michalopoulos requested a hearing on their motions to traverse the search warrant pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks), or, at a minimum, an in camera hearing under People v. Luttenberger (1990) 50 Cal.3d 1 (Luttenberger) to determine if they should receive discovery, including the name and address of the CI, the agreement between law enforcement and the CI, the date and place of the controlled buy, and the alleged dates Edgar observed Sullivan at the Pembroke residence.
The prosecutor opposed the motions to traverse the search warrant. He argued that Evans and Michalopoulos failed to show they were entitled to a Franks hearing, as they had not provided substantial proof that Edgar's affidavit contained statements that were deliberately false or make in reckless disregard of the truth. He further argued that Evans and Michalopoulos failed to make the lesser showing under Luttenberger, as their evidence failed to cast some reasonable doubt on the veracity of material statements made by Edgar.
The trial court denied the motions to traverse the search warrant. It concluded that Sullivan's declaration did not cast reasonable doubt on the veracity of Edgar's statements.
2. Analysis
On appeal, Evans and Michalopoulos contend they presented evidence sufficient to require an in camera hearing under Luttenberger, supra, 50 Cal.3d 1. In Luttenberger, our Supreme Court examined "the circumstances under which a criminal defendant may obtain discovery of information in police possession regarding a confidential informant, for purposes of challenging the accuracy of statements made in an affidavit in support of a search warrant." (Id. at p. 6.) The high court held that to obtain an in camera hearing, "a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant." (Id. at p. 21.) In addition, "the defendant must raise a substantial possibility that the allegedly untrue statements were material to the probable cause determination." (Id. at p. 23.) "Materiality will depend in part on how vital the information attributed to the unnamed sources is to a showing of probable cause." (Ibid.)
The showing required for an in camera hearing under Luttenberger was explored in People v. Estrada (2003) 105 Cal.App.4th 783 (Estrada). There, a search warrant was issued on the sole basis of a single controlled buy. (Id. at p. 788.) In the defendant's motion to traverse the search warrant and seek discovery of information relating to the CI, the defendant filed a declaration denying that the controlled buy occurred. (Id. at pp. 788-789.) The appellate court concluded that the blanket denial was sufficient to cast reasonable doubt on the veracity of material statements appearing in the search warrant affidavit. Thus, the defendant was entitled to an in camera hearing. (Id. at pp. 792-793.) In so concluding, the appellate court noted that it was not holding that "every time an accused drug trafficker files a blanket denial of culpability in camera proceedings must be commenced." Rather, a defendant is entitled to an in camera hearing only where "the entire justification for the search is vitiated" "if defendant's denial is accurate." (Id. at p. 794.)
Here, unlike in Estrada, Sullivan did not deny that he sold drugs to the CI and was followed back to the Pembroke residence. Nor did he deny having the keys to and living in the garage adjacent to the residence. Rather, Sullivan denied (1) exercising dominion and control over the main residence, as he did not live in the condominium, and (2) coming and going from the Pembroke residence within the past two weeks of when the search warrant affidavit was filed, as he was out of town during that period. However, even if Sullivan's statements were true, the controlled buy could have taken place on November 5, 2013, when Sullivan admitted he returned to Orange County. The officers' observation that Sullivan returned to the Pembroke residence after the controlled buy are sufficient to support the search of the residence. (See, e.g., People v. Romero (1996) 43 Cal.App.4th 440, 447 [probable cause existed to search defendant's residence where within minutes of agreeing to sell drugs, a drug dealer stopped briefly at the residence before driving without interruption to consummate a drug sale]; United States v. Hollis (9th Cir. 2007) 490 F.3d 1149, 1153 [where search warrant affidavit "rested primarily on the police officers' own observation of the controlled drug transaction . . . and the surveillance of [the defendant's] subsequent movements, which led to the North Hoyt apartment," trial court "properly admitted evidence obtained from the search of the North Hoyt apartment because the affidavit demonstrated a fair probability that contraband would be found there"], abrogated on another point by DePierre v. United States (2011) 564 U.S. 70.) Thus, the allegedly untrue statements challenged by Sullivan are not material to the showing of probable cause required for issuance of the search warrant. Therefore, Evans and Michalopoulos were not entitled to an in camera hearing under Luttenberger. B. Trial counsel were not ineffective for failing to object to testimony by the prosecution's expert witness.
Michalopoulos contends his trial counsel was ineffective for failing to object to Edgar's expert testimony that the 5.4 grams of methamphetamine were possessed for sale. While Michalopoulos acknowledges that a drug expert may opine that drugs were possessed for sale based on a set of hypothetical facts, he argues that an expert may not opine that a specific individual was guilty of possession of drugs for sale. He contends there was no rational basis for defense counsel's failure to object, and that he was prejudiced by the failure. In her reply brief, Evans joins in the argument.
"'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]'" (People v. Gamache (2010) 48 Cal.4th 347, 391.) As to counsel's representation, "'[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.'" (Ibid.) As an example, counsel is not ineffective for failing to proffer futile objections. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Price (1991) 1 Cal.4th 324, 386-387.)
Under Evidence Code section 801, subdivision (a), expert testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang).) If an expert's opinion is admissible because it is helpful to the jury under this test, the testimony is "not objectionable because it embraces the ultimate issue to be decided by the [jury]." (Evid. Code, § 805; Vang, supra, 52 Cal.4th at pp. 1049-1050.) The jury continues to play a critical role by deciding whether to credit the expert's opinion and whether the facts stated as the basis for the expert's conclusion are true and valid. (Ibid.)
Because the issue whether a controlled substance is possessed for personal use or for sale (e.g., based on quantity and packaging of the drug) is generally beyond the common experience of most jurors, direct expert testimony on this issue is usually viewed as helpful and is not prohibited merely because it relates to an ultimate issue to be decided by the jury. Thus, the California Supreme Court long ago recognized that in cases in which a defendant is charged with possessing a controlled substance for sale, "experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual." (People v. Newman (1971) 5 Cal.3d 48, 53 (Newman), disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Following Newman, numerous Courts of Appeal have upheld expert testimony on the ultimate issue of whether a particular defendant possessed drugs for sale as opposed to personal use. (See, e.g., People v. Harris (2000) 83 Cal.App.4th 371, 374-375 [expert opinion that defendant possessed marijuana and methamphetamine for sale based on quantity of marijuana and methamphetamines; manner drugs were transported; and quantity of postage stamps, which were typically used as currency to purchase drugs]; People v. Parra (1999) 70 Cal.App.4th 222, 227 ["Both Officer Hoffman and Detective Corbin, experienced narcotics interdiction officers, testified that, based on the quantity of the controlled substance seized and lack of drug paraphernalia in the car, defendants possessed cocaine with the specific intent to sell. It is well settled that '. . . experienced officers may give their opinion that the narcotic are held for purposes of sale'"]; People v. Carter (1997) 55 Cal.App.4th 1376, 1377 [trial court properly denied the defendant's evidentiary objection to police officer's testimony "render[ing] an expert opinion that defendant possessed rock cocaine for purposes of sale, based on the quantity of the drug possessed"]; People v. Peck (1996) 52 Cal.App.4th 351, 357 [sheriff's investigator gave opinion that the defendant possessed marijuana for sale, based on the quantity of marijuana].)
Here, Edgar opined that Evans and Michalopoulos possessed methamphetamine for sale based on the quantity of methamphetamine and the presence of other indicia of drug sales, including the multiple cell phones, the text messages, the digital scale, the stun gun and packaging materials. In light of Newman, "a reasonably competent attorney might well have determined that an objection [to Edgar's testimony] would have been futile . . . . Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price, supra, 1 Cal.4th at pp. 386-387.) In sum, Evans and Michalopoulos have not shown their trial counsel was ineffective. C. A condition of Evans's probation must be modified to include an express knowledge requirement.
We reject any argument that Vang, supra, 52 Cal.4th 1038, implicitly overruled Newman, supra, 5 Cal.3d 48, on permitting expert testimony that a specific individual possessed drugs for sales. In Vang, the high court evaluated the scope of permissible expert testimony on a gang enhancement allegation that the defendant committed an assault for gang-related reasons. In holding that the trial court properly allowed hypothetical questions based on the specific facts of the case, the Vang court repeatedly emphasized that "expert testimony is permitted even if it embraces the ultimate issue to be decided." (Vang, at pp. 1049-1050.) Although the court left open the question whether an expert can testify directly (without using a hypothetical) on whether the specific defendant committed a crime for a gang-related purpose, the court reaffirmed the general rule that expert testimony "regarding the specific defendants" may be proper if the testimony is of assistance to the trier of fact. (Id. at p. 1048, fn. 4.) Vang thus does not undermine Newman. --------
During Evans's sentencing, the trial court imposed various conditions of probation, including: "Don't associate with any person known to you to be narcotic drug users or sellers. And stay away from places commonly used by sellers to congregate." Evans contends the last condition is unconstitutionally vague. She requests that we modify the condition to state: "'stay away from places you know or reasonably should know to be commonly used by sellers to congregate.'" Citing People v. Hall (2017) 2 Cal.5th 494 (Hall), respondent argues that no modification is necessary because the knowledge requirement is implied.
Hall is not dispositive on this issue. There, our Supreme Court examined probation conditions barring possession of firearms or illegal drugs. (Hall, supra, 2 Cal.5th at pp. 497-498.) The high court concluded that the firearms and narcotics conditions were not unconstitutionally vague, as "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature." (Id. at p. 501.) Hall did not address other conditions of probations, such as the one challenged in the instant case. Notably, Hall distinguished probation conditions challenged on the basis of lack of scienter from those conditions challenged on the basis that their terms were insufficiently precise for the probationer to know what is required, such as the no-association condition found unconstitutionally vague in In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.). (See Hall, supra, 2 Cal.5th at pp. 502-503.) In Sheena K., our Supreme Court approved the Court of Appeal's reliance on the vagueness doctrine to order modification of a probation condition barring the probationer from associating with "'anyone disapproved of by probation.'" (Sheena K., supra, 40 Cal.4th at p. 889.) The high court agreed that the condition should be modified to direct the probationer "not to associate with anyone 'known to be disapproved of' by a probation officer." (Id. at p. 892.)
The probation condition at issue is akin to the no-association condition challenged in Sheena K., not the no-possession condition in Hall. As Hall is not dispositive, we conclude the probation condition should be modified to include an express knowledge requirement. (See People v. Moses (2011) 199 Cal.App.4th 374, 381 ["While we, too, could declare that a knowledge requirement shall be read into all probation conditions, we instead choose to modify and strike certain challenged probation conditions . . ."]; cf. In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [probation condition that defendant "'not remain in any building, vehicle or in the presence of any person where dangerous or deadly weapons or firearms or ammunition exist'" should be modified to include knowledge requirement]; In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [probation condition that "'minor not frequent any areas of gang related activity'" "should be revised to say that the minor not visit any area known to him to be a place of gang-related activity"].)
IV
DISPOSITION
The judgment against Michalopoulos is affirmed. The judgment against Evans imposing probation is modified as follows: As a condition of probation, "[s]tay away from places you know or reasonably should know to be commonly used by drug sellers to congregate." As modified, the judgment against Evans is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.