Opinion
G036755
4-24-2007
THE PEOPLE, Plaintiff and Respondent, v. MARTIN LEE KLETT, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Martin Klett was sentenced to five years and eight months in state prison based on three offenses, all involving methamphetamine. (See Health & Saf. Code, §§ 11378 [possession for sale] & 11379, subd. (a) [transportation].) Count 1 alleged possession of methamphetamine for sale on January 18, 2005. Count 2 alleged transportation of methamphetamine on January 18, 2005. Count 3 alleged possession of methamphetamine for sale on November 17, 2004.
The sentence consisted of a middle term of three years for the January transportation count, augmented with another two years because the crime was committed when Klett was out on bail for the November crime, plus one-third of the middle term for the November possession count.
On appeal, Klett raises three attacks on the judgment:
— (1) A suppression motion based on a failure to give a Miranda warning involving events leading to the November arrest (count 3) should have been granted.
— (2) There was insufficient evidence to sustain either possession for sale or transportation (counts 1 and 2) for the January arrest.
— (3) As regards the January arrest for transportation (2), the jury should have been instructed sua sponte specifically that it had to find that Klett was transporting a "usable quantity" of methamphetamine. (The jury did receive an instruction that it needed to find that Klett possessed "an amount sufficient to be used as a controlled substance.")
We affirm.
I. Miranda Issue and the November 2004 Arrest
A. Facts
Kletts trial attorney made an oral motion to exclude Kletts statement to officers, during the execution of a search warrant, that there were drugs at his home, where those drugs were located, and their quantity. The theory of the motion was that, at the time of the search pursuant to the warrant, Klett was being subjected to a "custodial interrogation" requiring the standard warning pursuant to Miranda v. Arizona (1966) 384 U.S. 436.
The evidence on the motion to suppress evidence from the November 2004 arrest was this:
There was a search warrant for Kletts home on Watson Street in Costa Mesa. The warrant was executed at six in the evening on November 17, 2004. More than ten officers participated in executing the arrest, all of them either in uniform or in "full raid gear." In "just a few minutes" the officers "secured" the house, which appears to have meant ascertaining that "no other persons were found" and "it was deemed safe." During those few moments, handcuffs were placed on Klett, who was standing either in the garage or the kitchen area of the house. A detective then approached Klett, and told him he was "not under arrest, but [was] being detained pursuant to the search warrant." The initial conversation also included the detective introducing himself.
The detective then asked Klett "if there were any drugs inside the residence because we were going to be searching for that, thats what the search warrant was for." Klett said no. The detective "again asked him, looked him in the eyes, said, `Marty, are we going to find any drugs? If there are, its easier if you just come clean and we go about our business doing it as opposed to going through every single thing in the house." Klett then said "yeah." In this conversation only "two or three" other officers were present in addition to the detective.
Klett immediately led officers to the backyard and some bushes along the west wall, then he "stuck his head in the bushes" and "indicated that the drugs were in there." The detective shook the bushes and a black pouch fell out and fell to the ground. The detective inquired as to how much methamphetamine was in the pouch, and Klett replied "about a half pound." The detective asked if "there was anything else inside the house" and Klett said no.
During these events no officers had any guns drawn, no one touched Klett (except for the initial handcuffing) and no one used any force on him. No threats were voiced, and the time from the initial statement there was no narcotics to the time of the pouch falling from the bushes was "a few minutes."
B. Analysis
A finding as to whether there was a custodial interrogation requiring a Miranda warning is reviewed for substantial evidence. (People v. Clair (1992) 2 Cal.4th 629, 678.) Custodial interrogation is a category that does not include "temporary detention for investigation." (Clair, supra, 2 Cal.4th at p. 679; see also People v. Mickey (1991) 54 Cal.3d 612, 648 ["Absent `custodial interrogation, Miranda simply does not come into play."].)
The most dramatic fact supporting Kletts suppression motion, the fact he was handcuffed simultaneously with the appearance of the officers, does not by itself establish "custodial interrogation" under Miranda. (See U.S. v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289-1290 [rejecting argument that defendants were "automatically under arrest once they were handcuffed because from that moment on they were "`not free to leave"].) And the fact that force was involved in an initial approach to a suspect does not transform a temporary detention into a "custody." (Clair, supra, 2 Cal.4th at p. 679.)
Rather, as Kletts brief recognizes, custodial interrogation is analyzed as a factor-test based on "objective indicia of custody for Miranda purposes." (See People v. Bellomo (1992) 10 Cal.App.4th 195, 198-199, quoting People v. Lopez (1985) 163 Cal.App.3d 602, 608.) The factors are not exhaustive, but certainly include: (1) whether there is a formal arrest; (2) length of detention, assuming there isnt a formal arrest; (3) location; (4) ratio of officers to suspects; (5) demeanor of officer, including the nature of the questioning, and also including whether the questioning is accusatory.
We must conclude that, on balance, the factors here tilt in favor of detention rather than custody: The very first thing that Klett was told was that there was no formal arrest, but that there was a search being conducted and his detention was "pursuant" to a search warrant. That fact tends to vitiate not only the handcuffing, but the other point stressed by Klett in his briefing: the ratio of officers to suspects. It would be logical for police searching a suspected meth dealers house to ensure that the suspect not be able to, say, bolt for the bathroom and try to dispose of his inventory, or, perhaps, even fight back. Concomitantly, a large number of officers would be inherently needed for such a search operation: some officers to insure that any occupants of the house did not have an opportunity to destroy evidence or otherwise bolt or interfere with the police, and other officers who could devote their attention to conducting a thorough search quickly.
The length of the detention here was quite short. There was no third-degree wearing down; simply two questions, easily uttered in a few moments. The suspect was not transported to any area beyond his residence, that is, he stayed in his own home where the search itself was being conducted. The ratio of officers to suspects, to be sure, tends in the direction of arrest, but, as we have just noted, that large number was inherently needed to conduct a safe and quick search pursuant to the warrant. Further vitiating that factor was that only two or three other officers were present when the detective asked Klett the two questions, and such a number would seem merely prudent under the circumstances.
The nature of the questions, taken in the context of a search, also favor a finding of detention rather than custody. The key fact is that his initial, two (unMirandized) questions both integrally related to the fact of the ongoing search. The first question directly referenced the search pursuant to the warrant ("thats what the search warrant was for") and the second question simply made the argument that Klett had something to gain (not having his house torn up) by "com[ing] clean." The final question, concerning the contents of the pouch, was merely the logical extension of Kletts decision to answer the second.
In sum, Kletts statements were properly admitted irrespective of the lack of a Miranda recital of rights and waiver.
II. Sufficiency of the Evidence for the Counts Based on the January 18 Arrest
A. Facts
After Klett was released on bail from the November arrest, another search warrant was issued, resulting in his arrest on January 18. The warrant was for the search of a residence on Glencoe Street in Huntington Beach and for a white Ford Explorer. Klett was the registered owner of the Explorer. As officers approached the residence, the Explorer was leaving. Klett was driving; there was a male passenger.
At the corner of Beach and Alhambra, the Explorer stopped and the passenger got out. A detective stopped the male passenger and searched him. The detective found a baggie with 2.12 grams of methamphetamine (about two-thirds of an "eightball," as explained in our discussion below) in his right front pocket. The passengers backpack was also found to have a tin pill box with a paper bindle of a third of a gram of methamphetamine.
Meanwhile, another detective followed the white Explorer, which was heading in the direction of the Glencoe residence. The Explorer stopped when the siren was turned on. Klett was found with two large amounts of cash: $450 in $20 bills in a front pocket of his shorts and $6,500 in cash in an envelope in a cargo pocket.
A trained drug dog reacted to the center console in the front of the vehicle, where, underneath a cup holder fastened with scratched screws that had clearly been tampered with, there was a dirty sock with seven small baggies of methamphetamine, each baggie containing one-eighth of an ounce. The baggies were identical to the baggie found on the passenger. There were scratches around the screw heads of the cup holder.
The prosecution presented expert testimony to the effect that one-eighth of an ounce is a quantity is commonly called an "eightball." (One-eighth of an ounce is 3.5 grams.) The expert also pointed out that use of one-eighth of an ounce of methamphetamine would be "extreme" in terms of use: Addicts or heavy users of the drug typically ingest one-half to one gram, that is, less than a third of an "eightball."
B. Analysis
1. Quantity for Sale
We will begin with the quantity found in the Explorer. It was rather unusual: Seven-eighths of an ounce in total, all divided into seven portions as if one ounce had originally been divided into eight portions.
There was expert testimony that one-eighth of an ounce is a common commercial quantity in the methamphetamine trade, the so-called "eightball," but that even a heavy user would not normally consume an eightball in a day. The idea that Klett had the seventh-eights of an ounce in his possession — all neatly divided into amounts suitable for sale as eightballs — merely for his personal use is thus unreasonable. The expert testimony readily established that seven-eighths of an ounce, in bulk, is not a marketable quantity. No mere consumer would have occasion to purchase such an amount for personal consumption. Nor would any mere consumer, having purchased seven-eighths of an ounce in bulk, divide his purchase into seven equal portions each equaling one-eighth of an ounce. One-eighth is too large to be an individual unit of consumption, but it is perfect for distribution to another user or addict. Consider that it is relatively easy to divide things into eighths: Separate into two halves, separate each of those halves by half again, separate each remaining amount by half again. But a users buying seven-eights in bulk makes no sense at all (and indeed there was expert testimony that simple users generally do not buy such amounts). Trying to divide any quantity of material into sevenths is a painstaking chore: You cant use the trick of successively dividing by halves. If you are dealing with a drug, you must spend time fiddling with scales that can precisely measure amounts much smaller than an ounce, estimating initial quantities and then re-allocating them to account for any inexactitude in initial allocations.
On top of that was the fact that Kletts passenger was found with methamphetamine in a baggie identical to those found in Kletts car, and was found to have a quantity almost equal to the remaining eightball: Two-thirds of an eightball in a baggie in the passengers pants, one-third of a gram in the paper bindle in the pill box. It is almost impossible to square such facts with any scenario other than a sale from Kletts inventory of eight eightballs to his passenger, with about a gram disposed of at the time of the transaction. (There was also expert testimony that "functioning" simple users might use one-half to one gram per week, using the drug one-to-three times per week.)
2. Knowledge of Existence of Drug in the Explorer
Klett argues that the prosecution did not prove that he knew there were seven eightballs of methamphetamine under the cup holder, and suggests that the jury should have concluded that the methamphetamine found in the Explorer belonged to the passenger (argued in both the opening and reply brief) or perhaps a female residing at the Glencoe residence (suggested in the reply brief). He suggests that the large amount of money he was found with at the time of his January arrest was consistent with his son having given him a large amount of money ($5,000) to buy a vehicle, and a friend having given him another large sum ($2,000) for having sold a vehicle to the friend. (That would account for the $6,950 Klett had on him at the time of the arrest.)
There really is, however, no way to escape the obvious conclusion that flows from Kletts being the registered owner of the Explorer. It is the owner of a car who usually drives it, and it is that person who would naturally notice scratches on the screw heads of a cup holder consistent with something being secreted underneath the cup holder. Moreover, there was no evidence that anybody would have had such easy access to the Explorer, merely the possibility that someone could have stashed the methamphetamine there. But even that mere possibility fades away when one considers that the amount found was worth, according to the expert testimony, more than $800, and all neatly packaged in saleable amounts. As the Attorney General aptly notes, a reasonable jury could readily conclude that it was not likely that another person would hide more than $800 of methamphetamine in a car under someone elses control.
Besides which, as we noted in the previous section, there is the way the quantity in the Explorer dovetailed with the quantity found on the person of the passenger, who had just been deposited at the corner by Klett. The quantities so nearly equaled one ounce of methamphetamine, combined with the evidence that the passenger had the same kind of baggie of methamphetamine as was found in the sock (trademark packaging as it were), that it would be unreasonable to conclude that the passengers amount came from the same "store" operated by the owner of the sock, which most logically would have been the owner of the car.
C. The Supposed Absence of a "Usable Quantity" Jury Instruction
Kletts final issue rests on the theory that, for the transportation count, the trial court was under a sua sponte duty to instruct the jury that Klett had to have been found with a "usable quantity" of the drug on him. (Cf. People v. Meza (1995) 38 Cal.App.4th 1741, 1746 [using phrase "usable quantity" in passing description of offense].)
However, the jury was instructed that the prosecution had to prove that Klett transported a controlled substance, and was further told that "Proof that a controlled substance possessed, if any, was in an amount sufficient to be used as a controlled substance may be established: One, by expert testimony or, two, by evidence that the amount possessed, if any, was sufficient to be used in any manner customarily employed by users of the substance." (Italics added.)
Along the same lines, it was also instructed that "In order to establish that the amount, if any, of the controlled substance possessed by the defendant was a sufficient amount to constitute a violation of the law, it is not necessary that the People prove: [¶] One, the amount possessed, if used, would have the effect it is ordinarily expected to produce, referred to as narcotic effect, [¶] Or, two, the narcotic ingredient in a particular substance possessed was capable of producing a narcotic effect."
The jurys mind was thus focused on the idea that there had to be "an amount sufficient to be used as a controlled substance," which is substantively identical to "usable quantity." The instruction needed no clarification, but if Klett thought it did, it was his duty to request the clarification. (See People v. Coddington (2000) 23 Cal.4th 529, 584 ["A defendant who believes that an instruction requires clarification must request it."].)
Coddington was disapproved on an unrelated point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.
III. Disposition
The judgment is affirmed.
We concur:
OLEARY, J.
MOORE, J.