Opinion
E032438.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID LOPEZ IBARRA, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, and Harry Zimmerman for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant of possession for sale of heroin, methamphetamine, and marijuana, and four counts of felony child abuse. The jury found defendant was personally armed with a firearm in committing possession for sale of the heroin and methamphetamine. The court found defendant had suffered previous convictions for drug offenses and sentenced him to 24 years 8 months. We affirm.
I
FACTS
About 2:00 or 3:00 a.m. on May 24, 2000, Detective Koahou of the Colton Police Department saw a man walking from a room of the Valley View Motel toward a vehicle. After parking his car nearby, Detective Koahou saw a vehicle leave the motel parking lot and drive past him. Detective Koahou believed the driver was under the influence and conducted a traffic stop of the vehicle. He also called in Officer McFarland for assistance.
The vehicle was occupied by the man Detective Koahou had seen walking from the motel room. On the front seat of the vehicle, Detective Koahou found a substance he believed to be heroin. The substance was in an amount larger than what would normally be possessed for personal use, indicating potential sales activity. Detective Koahou later weighed the substance and found it weighed one gram.
The officers went with the driver of the car, whose name was Randy Moss, back to the motel. They identified the room he had come from as number 119. They went to the room, and Officer McFarland knocked on the door. A woman, later identified as Gloria Delgado, looked out through the curtains. Detective Koahou displayed his badge, told Delgado they were police officers, and asked that the occupants of the room come to the door.
The door opened. Delgado and a man, later identified as defendant, were standing there. Defendant was wearing only a pair of boxer shorts. Detective Koahou said he was conducting a narcotics investigation and that a man leaving their room had been found with heroin. He asked if there were any drugs in the room.
Defendant said it was just him, Delgado, and his or their children in the room, and there were no drugs. Detective Koahou asked defendant whether he knew Randy Moss. Defendant said he did and that Moss was working on a vehicle that belonged to defendant. Defendant said he did not know where Moss had obtained the heroin.
While Detective Koahou was talking to defendant, Delgado walked to the sink at the back of the room. She appeared to be fumbling with something at the sink. She then turned around, went into the bathroom, and closed the door.
Detective Koahou asked if he could come in and speak with defendant. Defendant stepped back, and Detective Koahou and Officer McFarland entered the room. Detective Koahou saw three girls, ages 4, 9, and 13, and an infant about one and one-half or two years old.
Detective Koahou continued conversing with defendant. Defendant eventually said he did have some heroin in the room and that he was a heroin user. Defendant said there were some syringes containing heroin near the sink. Detective Koahou looked near the sink and saw a ladies purse hanging in the closet, with several syringes in one of the pockets. Some of the syringes contained residue and appeared to have been used.
Detective Koahou knocked on the bathroom door and asked Delgado to come out. She opened the door, and Detective Koahou saw her sitting on the toilet starting to pull her pants up. In front of her was a purse containing about six syringes, two of them "loaded," i.e., containing heroin. Detective Koahou also saw a rag with what appeared to be fresh blood on it. Heroin users sometimes use a rag to constrict blood flow while injecting a vein and to clean up the blood after injecting. Users also sometimes withdraw some of their blood, mix the heroin with it, and then reinject it.
Also in front of Delgado was a tool box with a mirror and a spoon on it. Heroin users often use a spoon to mix the drug with water before injecting it. Based on the items in the bathroom, Detective Koahou believed Delgado was injecting heroin.
Returning to the sink area, Detective Koahou found a brown paper grocery bag filled with dozens of syringes, some of them loaded. Some of the syringes were used. Detective Koahou also found a gallon size plastic bag containing smaller bags filled with what appeared to be marijuana. The marijuana was in a gym bag between the closet and the foot of the bed.
Detective Koahou summoned narcotics investigators. He also arranged for Socorro Ibarra, whom Delgado said was the childrens grandmother, to take charge of the children.
Detective Koahou asked Delgado where the supplies for the infant were. She said they were in a nylon bag near the closet. Detective Koahou opened one of the pockets of the bag and found two handguns. One gun was loaded. There were also several bullets scattered throughout the bag. The bag also contained childrens clothing, in a separate compartment from the guns.
Officers who later searched the room pursuant to a search warrant found a third gun, a small two-shot handgun, next to the bathroom. They also found a plastic gram scale, a telephonic pager, and a programmable scanner. In addition, they found a key to a Toyota automobile parked in front of room 119. Inside the Toyota were documents with defendants name on them. Other documentation showed the Toyota had been transferred to defendant on May 19, 2000. In the center console of the Toyota was a "brick" of marijuana weighing approximately one pound.
Officer McFarland found cash in a dresser drawer, which Detective Koahou estimated to be around $40,000. The cash was tightly wrapped in rubber bands and placed into a camera case. The cash included bills of different denominations, including some $100 and $20 bills. The drawer also contained childrens clothing.
There were syringes scattered all over the room, even in the bed in which the infant had been lying. The syringes were used and unused, loaded and unloaded. In all, there were between 150 and 200 syringes.
In addition to the heroin in the syringes, there were several pieces of suspected solid heroin in the room, including a piece on one of the beds. Other pieces were found on the vanity of the bathroom sink and in a purse in the vanity area. Methamphetamine was also found in the purse in the vanity area.
The substances found in the motel room were tested by a criminalist and confirmed to be heroin, methamphetamine, and marijuana.
Based on the amount of heroin found in the room, enough for about 570 doses, and the presence of the scale, cash, and firearms, Detective Koahou formed the opinion that the heroin was possessed for the purpose of sale. He believed the presence of used syringes indicated that buyers were coming to the room, purchasing heroin, and injecting the drug there in an effort to avoid detection.
Based on the same factors, and the fact there were no paraphernalia for using methamphetamine in the room, Detective Koahou formed the opinion that the methamphetamine, which was enough for about 17 doses, was possessed for sale. Based on the amount of the marijuana found, enough for about 2,000 cigarettes, Detective Koahou formed the opinion that the marijuana was possessed for sale.
Detective Koahou took defendant into custody. When he was being booked, defendant said he was unemployed.
Officer Morehouse was part of the narcotics investigation team summoned by Detective Koahou. In addition to other items, he found an answering machine in the motel room. He listened to the messages, of which there were approximately 50. The callers had asked for "Gloria" and "David," and also "Angel." Some, though not all, of the callers had requested illegal drugs, using slang terms for the drugs and quantities they wanted. Perhaps 15 of the calls were drug related. The majority of the messages that were sales oriented were directed mainly toward "David."
II
DISCUSSION
A. Testimony Regarding Telephone Messages
1. Relevant trial proceedings
During direct examination of Officer Morehouse, the prosecutor asked whether any messages on the answering machine found in the motel room related to drug language or lingo. Defense counsel objected based on hearsay. The prosecutor stated the evidence was not being offered for its truth. Defense counsel responded that in that case the evidence was not relevant.
The court overruled defense counsels objection. Defense counsel then objected on the basis that "we have no recording. I have no transcripts. I have no discovery as to those recordings." The prosecutor responded that Officer Morehouse had only listened to the messages, not recorded them or taken the recording from the machine. The court stated that in that case the defense had all the discovery the prosecution had and again stated defense counsels objection was overruled.
When the prosecutor resumed questioning Officer Morehouse and asked whether any of the messages were directed to defendant, defense counsel objected as calling for speculation and also stated, "Ill object to hearsay." The court overruled that objection. Officer Morehouse then testified as previously stated ante.
2. Contentions on Appeal
Defendant contends the admission of Officer Morehouses testimony regarding the phone messages deprived defendant of his rights to a fair trial, to trial by jury, and to due process of law. He argues that the content of the messages was not relevant to whether he possessed drugs for sale, because there was no evidence showing when the messages were left or even that the answering machine had been set up to receive calls on the telephone at the motel room. Therefore, the messages were not relevant to whether drugs were currently being possessed for sale in the motel room. Admitting the testimony was prejudicial because without it there was no evidence affirmatively establishing that defendant, as opposed to Delgado, was selling drugs.[] Finally, if the foregoing arguments were waived because defense counsel failed to assert them at trial, counsel provided ineffective assistance.
Ironically, the trial court reached just the opposite conclusion, granting Delgados Penal Code section 995 motion because it found insufficient evidence to connect her, as opposed to defendant, to the room and its contents.
3. Standard of Review
"Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 717.) In particular, a court "examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. [Citations.]" (Ibid.)
4. Waiver
We agree with the Attorney General that defendant waived his current argument against admission of Officer Morehouses testimony. An objection to the admission of evidence is waived on appeal unless, in the trial court, the objection was "so stated as to make clear the specific ground of the objection . . . ." (Evid. Code, § 353, subd. (a).)
As our recitation shows, defense counsel at trial argued the phone messages were inadmissible because (1) their contents were hearsay; (2) if the messages were not being offered for their truth, they were not relevant; (3) defense counsel was not provided with recordings or transcripts of the messages; and (4) whether the messages were directed to defendant was speculation. Notwithstanding the passing reference to relevance, defense counsel never asserted the specific ground defendant now argues, i.e., that the evidence was irrelevant because it did not show when or where the calls were received and therefore did not tend to show that the premises were being used to sell drugs.
In fact, defense counsel expressly stated he was not objecting to the prosecutions use of the calls "as circumstantial evidence of the use of the premises, which the cases seem to indicate is appropriate."[] As defense counsel failed to articulate the specific ground on which defendant now argues the evidence was inadmissible, that ground was waived. The remaining question is whether defendant is correct in contending that, if the argument was waived, counsel was ineffective.
The cases to which counsel referred were those cited by the prosecution, i.e., People v. Ventura (1991) 1 Cal.App.4th 1515 and People v. Nealy (1991) 228 Cal.App.3d 447. As explained post, those decisions authorize the use of evidence of telephone calls to a place occupied by the defendant to prove the defendant was selling drugs.
5. Ineffective Assistance
"Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence. [Citations.]" (People v. Freeman (1994) 8 Cal.4th 450, 490-491.) We are not persuaded the failure to object in this case was ineffective assistance.
"A claim of ineffective assistance of counsel based on a trial attorneys failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission [citation], but also that the motion or objection would have been meritorious . . . ." (People v. Mattson (1990) 50 Cal.3d 826, 876.) Defendant cannot show here that a relevance objection, based on the lack of evidence showing when and where the phone messages were received, would have been meritorious. Relevant evidence means evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210; People v. Boyette (2002) 29 Cal.4th 381, 428.) The definition of relevant evidence in Evidence Code section 210 "is manifestly broad." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843; see also People v. Tauber (1996) 49 Cal.App.4th 518, 525.)
Several cases have considered whether evidence of telephone calls made to a place occupied by the defendant is admissible to prove that the defendant was selling drugs. In People v. Nealy, supra, 228 Cal.App.3d 447, while executing a search warrant at the defendants apartment a police officer answered the telephone and spoke with a caller who asked for the defendant and inquired about purchasing drugs. The officer also made two telephone calls to numbers recorded on a beeper found in the apartment. In both cases, the person who answered asked for the defendant and wanted drugs. The court held the evidence of the three calls was relevant and admissible as circumstantial evidence to show that drugs found in the apartment were possessed for sale. (Id. at pp. 451-452.)
In People v. Ventura, supra, 1 Cal.App.4th 1515, police officers executing a search warrant at the defendants apartment answered several phone calls in which the callers asked for the defendant and discussed the purchase of narcotics. The court held the evidence of the phone calls was admissible as circumstantial evidence showing someone was in possession of the premises for the purpose of narcotic sales. (Id. at p. 1519.)
Defendant asserts that in Nealy and Ventura the police officers contemporaneously participated in calls made to each defendants apartment, while here the calls were not intercepted at the time of the search, and it is unknown when they were made. Defendants asserted distinction is not entirely accurate, since in Nealy the officer himself made two of the calls, and there was no evidence as to when the numbers had been recorded on the defendants beeper. Moreover, in People v. Fields (1998) 61 Cal.App.4th 1063 (Fields), there was a substantial lapse of time between the date of a telephone call and the date of the information connecting that phone number with the defendant, yet the court upheld the admission of the evidence.
In Fields, a drug dealer agreed to help undercover officers purchase cocaine. He went to a public phone and made a call. Shortly after that, he received a call back and eventually arranged a cocaine purchase. The defendant participated in the sale and was promptly arrested. A pager found in the defendants possession contained the number of the public telephone from which the dealer had made the initial call.
Although in Fields the dealers phone call took place on September 4, 1996, a detective did not determine the number of the public telephone used by the dealer until March 5, 1997. No testimony was offered as to the number of the telephone on September 4, 1996. Accordingly, the defendant argued there was insufficient evidence the pager actually reflected the number of the telephone used by the dealer at the time he made the call.
Notwithstanding the lapse of six months from the use of the phone to the identification of the number on the pager, the Fields court held the pager evidence was properly admitted. The court noted that the evidence established the dealer had made a call from the public telephone, had received a return call shortly thereafter, and the number appeared on the defendants pager. "Sufficient foundational facts were present so as to allow the trial court to permit the jury to determine whether this was just a big coincidence or compelling evidence of guilt. [Citations.]" (Fields, supra, 61 Cal.App.4th at p. 1071.)
In an analogous context, the Supreme Court also has held that the lapse of several months between the use of an item to commit a crime and the connection of that item with the defendant does not render the item inadmissible as evidence of guilt. In People v. Farnam (2002) 28 Cal.4th 107, a homicide victims screen door was slit, and her telephone cords were cut. Two months after the homicide, a knife was found in the defendants possession. The police could not show the knife had been used to slit the door or cut the cords, only that it could have been. The defendant argued "the knife evidence was irrelevant to any disputed material issue because there was no showing as to when he acquired the knife." (Id. at p. 156.) The Supreme Court disagreed, stating: "`Standing alone the inference may have been weak, but that does not make the evidence irrelevant. . . . [¶] It does not matter that the prosecution could not conclusively connect defendants knife to the . . . crime scene." (Id. at pp. 156-157.)
The same result should follow here. The fact the prosecution was unable to show when the calls were made weakened the probative value of the phone messages but did not make them irrelevant. Evidence need not be strong to be relevant. Rather, "`[e]vidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury. [Citation.]" (People v. Freeman, supra, 8 Cal.4th 450, 491.)
The court in exercising its discretion whether to admit the evidence of the phone messages had to evaluate their relevance not in isolation, but in combination with the other evidence connecting defendant with the motel room and the drugs found in it. That evidence amply provided "[s]ufficient foundational facts . . . to allow the trial court to permit the jury to determine whether" the messages were "just a big coincidence or compelling evidence of guilt." (Fields, supra, 61 Cal.App.4th at p. 1071.) Indeed, there was extensive evidence, despite the lack of a record of when the calls were made, to show defendant was living in the room and actively selling drugs at the time the room was seized.
First, defendant lied to the officers when initially questioned about whether there were drugs in the room, suggesting a consciousness of guilt. Second, a key to the car recently registered to defendant, which contained a large quantity of marijuana, was in the room. Third, the grandmother of the children occupying the room had the same last name as defendant, and defendant told the officers the children were his or his and Delgados. Fourth, Detective Koahou had conducted a traffic stop of defendant, about a block away from the motel, a week earlier.
In addition, defendant admitted he was a heroin user. Evidence that a defendant is a drug addict is admissible to show his motive to sell drugs. (People v. Conrad (1973) 31 Cal.App.3d 308, 326.) The inference that defendant was selling drugs to support his habit was particularly strong here, since defendant claimed to be unemployed but evidently managed to obtain enough money to support his drug use.
On these facts, the court did not abuse its discretion in concluding the phone messages had a sufficient tendency to prove defendants connection with the sale of drugs from the motel room to be relevant. An objection on the basis argued on appeal would not have been meritorious, and counsel therefore was not ineffective for failing to make one. Moreover, given the other evidence connecting defendant with the room and the drugs, even if counsel had succeeded in excluding the phone messages it is not reasonably probable defendant would have obtained a better result. Therefore, defendants ineffectiveness claim fails. (People v. Mayfield (1993) 5 Cal.4th 142, 199.)
B. CALJIC No. 17.41.1
Over defendants objection, the court gave CALJIC No. 17.41.1.[] Defendant claims the instruction infringed his constitutional rights to due process, a fair trial, and a jury trial. He acknowledges the Supreme Court in People v. Engelman (2002) 28 Cal.4th 436, 444 held that giving CALJIC No. 17.41.1 does not violate a defendants right to trial by jury but contends the court failed to recognize that the instruction creates a substantial risk of infringement upon the right to jury trial that would not be apparent from the record, due to the confidentiality of jury deliberations. Therefore, giving the instruction cannot be shown to be harmless beyond a reasonable doubt.
CALJIC No. 17.41.1, as given in this case, states, "The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
Regardless of whether the Engelman court may have overlooked arguments militating against its holding, we are bound to follow that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject defendants claim of instructional error.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., GAUT J.