Opinion
C082854
09-10-2018
THE PEOPLE, Plaintiff and Respondent, v. DENNIS THREETS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F06754)
Convicted by jury of possessing methamphetamine and marijuana for sale (Health & Saf. Code, §§ 11378 [methamphetamine], 11359 [marijuana]), and found by the trial court to have incurred a strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), defendant Dennis Threets contends the court erred prejudicially and violated due process by admitting evidence of a prior conviction for possessing cocaine for sale (Health & Saf. Code, § 11350). He also contends that various penalty assessments were improper. We shall order the correction of the sentencing order and abstract of judgment to reflect the statute under which one assessment was evidently meant to be imposed, and otherwise affirm.
I. BACKGROUND
A. Introduction
Both parties moved in limine to admit or exclude evidence. The People moved inter alia to admit defendant's prior conviction for possessing cocaine for sale pursuant to Evidence Code section 1101, subdivision (b) (hereafter "section 1101(b)"), to prove intent and knowledge. Defendant moved to suppress his pretrial statements to police officers pursuant to Miranda v. Arizona (1966) 384 U.S. 436 . After a section 402 hearing, the trial court suppressed defendant's first statement, but admitted his second statement; the court then granted the People's motion.
Undesignated statutory references are to the Evidence Code.
Although defendant does not attack the Miranda ruling on appeal, we mention it upfront because the evidence presented at the section 402 hearing—defendant's own story about the drugs found at his home—played a significant part in the trial court's section 1101(b) ruling. As we explain below, defendant's attack on this ruling is flawed in part because defendant wrongly asserts that the court had no evidence before it to support the ruling, overlooking the evidence received in the section 402 hearing. B. Prosecution Evidence
At around 7:00 p.m. on October 11, 2013, Sacramento police officers on patrol in Oak Park came to the residence defendant and others shared, seeking Rose M., a probationer with an outstanding arrest warrant who had given the residence as her home address. As Officer Redlich approached the front door, he heard two people sitting in a car in the front yard yell, suggesting to the officer that they were warning those inside the residence the police were there.
When the officers knocked, defendant answered the door and said Rose M. did not live there anymore. Officers Redlich, Hughes, and Worm entered the house to investigate whether Rose M. was there.
Officer Worm searched an office to the left of the front door, from which Officer Redlich had seen defendant emerge. The office contained a desk and a storage closet. Opening the storage closet door while continuing the search for Rose M., Officer Worm smelled marijuana and saw several containers of marijuana. The officers found approximately four pounds of marijuana in 16 mason jars. Officer Worm saw a digital scale, of the type that she knew was commonly used to weigh out narcotics, and having a white crystal-like substance on it that appeared to be methamphetamine.
Informed by Officer Worm of what she had found, Officer Redlich advised her that they had consent to search the residence. In the top drawer of the desk, Officer Worm found a grocery bag with two smaller bags inside; each contained a substance that looked like methamphetamine. Testing confirmed that the substance was methamphetamine and weighed 14.9 grams altogether. A second scale was found in a desk drawer. Plastic baggies (open-top sandwich bags) were found on the floor next to the desk. Two cell phones were found on the desk. Another was found in defendant's bedroom.
The officers did not find drug users' paraphernalia or evidence of a marijuana grow in the residence. In a bedroom where one of the officers had kicked in the door, and which turned out to belong to defendant's brother, Joe, they found a small amount of marijuana, but not enough to bother weighing or collecting.
In a Mirandized statement taken by Officer Hughes at around 8:25 p.m., defendant said he lived in the residence. Asked about the drugs that had been found "in the home," defendant said the drugs found "in his desk" were his. He said he used the marijuana to relieve back pain and had a medical marijuana card. He said he had found the methamphetamine in a car he had bought at a tow yard two weeks before; he put it in "his desk," but did not know what it was. He also said, however, that he had been using methamphetamine for the last four months. He denied selling drugs, but had no explanation for the digital scale with methamphetamine residue found in the office.
Officer Hughes's testimony about defendant's statement came after the section 402 hearing on defendant's motion to suppress his statements. In other words, Officer Hughes was testifying as to the statement the court had ruled admissible.
An officer who testified as an expert on possession of drugs for sale opined that it is not typical to have 14.9 grams of methamphetamine or four pounds of marijuana for personal use. Digital scales and plastic baggies are common accouterments of sales. Mason jars prevent marijuana odors from emitting and keep the substance from taking on air, which starts to dissipate the level of THC in the substance. A person found in possession of 14.9 grams of methamphetamine and four pounds of marijuana, plus two digital scales, three cell phones, and a box of baggies, and who also admitted to using methamphetamine, would have possessed the drugs for sale.
Sacramento County Probation Officer Sandmeier testified pursuant to section 1101(b) that in March 2008 he searched defendant's person and found seven rocks that tested presumptive positive for rock cocaine, weighing a total of 1.6 grams, an amount normally possessed for sale. Defendant said he did not use cocaine; he sold it for $10 per rock. C. Defense Evidence
Dr. Robert Wickham testified that he had signed a medical marijuana card for defendant in 2013, authorizing him to buy marijuana.
Stacey, a friend of defendant and defendant's brothers, Tim and Joe, testified that the office searched by the police belonged to Joe. Joe always locked the office door when he left. Neither Stacey nor Tim ever saw anyone go in there when Joe was not at home.
According to Tim, Joe grew marijuana in the back yard of the residence and used it frequently over a 20-year period. According to Stacey, there was sometimes marijuana in Joe's bedroom, and she had seen methamphetamine in his office two or three times (but not in his bedroom). Joe was chronically ill with kidney trouble and on dialysis for many years, then was diagnosed with cancer and died within a month. He was in the hospital when the police searched the house.
According to Tim, Joe bought cars from tow yards, fixed, and resold them; defendant would occasionally help him in this business. Defendant also received money for fixing cell phones for family and friends.
Neither Stacey nor Tim had ever seen defendant with methamphetamine. Tim had seen him with marijuana, but never using it or possessing it in large amounts.
Defense counsel argued to the jury that Joe possessed the drugs seized by the police from the office. According to counsel, the drugs defendant admitted possessing were in the desk in his bedroom, not the desk in the office, and those drugs did not form the basis of any charges in this case.
II. DISCUSSION
A. Evidence of Defendant's Prior Conduct
Defendant contends the trial court abused its discretion and violated due process by admitting Probation Officer Sandmeier's testimony as to his arrest and conviction for possession of cocaine for sale. The court did not err.
The People's motion in limine proffered defendant's prior conviction under section 1101(b) to prove intent and knowledge. At the pretrial in limine hearing, however, the prosecutor said knowledge was incidental and the main purpose of the evidence would be to prove intent.
The trial court deferred ruling on the motion, but stated that an admission to possessing the drug for sale in the prior case would appear relevant to intent in the present case (but not to knowledge).
The People also moved to admit defendant's statements to the police. Although defendant originally did not oppose the motion, he later moved to suppress the statements.
Although the written motion did not articulate this point, it appears the defense theory was that the police violated Miranda by obtaining a statement without warnings in a custodial situation, then got a second statement after Miranda advisements that was essentially the same as the first, unMirandized statement.
Officer Hughes subsequently testified about the statements in a section 402 hearing. According to Hughes, he gave Miranda advisements to defendant before interrogating him; Hughes knew that Officer Redlich had previously detained and interviewed defendant in the course of the officers' protective sweep of the residence and eventually handcuffed him, but Hughes did not know what defendant had told Redlich. Defendant said to Hughes that the methamphetamine and marijuana found "in the desk in his home" were his; he had a medical marijuana card for back trouble; he had been using methamphetamine for four months; he found the crystalline substance in the desk in a car he bought from a tow yard two weeks earlier, but did not know the substance was methamphetamine. Defendant emphatically denied selling drugs.
The statement made to Officer Redlich was recorded, and the court quoted from it in its written ruling on the motion.
Officer Hughes did not remember whether there was a desk in defendant's bedroom; however, he thought it was clear that when defendant said, "my desk" he was talking about the desk in the office. Hughes did not know at the time that officers had found narcotics anywhere other than the office.
After hearing argument, the trial court deemed the matter submitted. The court then turned to the People's section 1101(b) motion.
The court thereafter entered a written ruling granting defendant's motion to suppress as to the first (unMirandized) statement to Officer Redlich but denying it as to the second (Mirandized) statement to Officer Hughes. Officer Hughes subsequently testified before the jury about that statement consistently with his testimony in the section 402 hearing.
Defense counsel opposed the motion, arguing chiefly that intent was not in issue:
"And for my offer of proof, the defense is not—as I mentioned to the jurors in my opening statement, the question is whose drugs are these, the marijuana and the methamphetamine. Not what was [defendant] intending to do with the drugs, use them or sell them.
"So an 1101(b) purpose for proving intent . . . is misplaced in this case. And to the extent the prosecution could [argue that every element of the crimes is at issue], that's true. But 352 is a huge part of the Court's analysis of this 1101(b) issue, because the real issue in the case is not the intention of the person who possessed the items, it was who possessed them. I think 352 weighs against admission.
"The defense has discovered statements from three different witnesses to the prosecution. One is a statement of Timothy . . . , my client's brother. [Timothy] explains where [defendant's] bedroom is, and where his other brother [Joe], who has since passed away in November 2013, where his bedroom was; where another brother Willy's bedroom was, and that Joe had two rooms, one was his bedroom and a second room was his office."
The trial court said: "Well, I think—if I can just sort of cut to the chase, because I understand your position, I really do. There's an argument to be made that the evidence shows that somebody else used this office, had the office for these drugs that were found there by police, and so it's more who possessed it rather than what did you intend. [¶] So, I mean, I'm just going to tell you right now, intent is an issue. I need to give a written ruling on the 1101(b) evidence. It is admissible under 352 and under the law. So I will give you a written ruling. But the probation officer will be permitted to testify as to intent. [¶] There's a mix of evidence that I'm hearing in the case so far. Obviously the medical marijuana prescription is an issue, and there's evidence out there that could be argued by the defense, both ways: He didn't possess it, and if he did possess it, it was for personal medical use so he wasn't selling it." The court orally granted the People's motion and announced it would give a limiting instruction.
The trial court thereafter issued a written ruling on the motion, which stated in part:
"On or about March 4, 2008, Glen Sandmeier, a Sacramento County Probation Officer, conducted a lawful search of defendant. During the search, . . . Sandmeier found . . . seven off-white colored rocks [which proved to be rock cocaine]. . . . The rocks weighed 1.6 grams, a more than us[]able amount. He gave defendant his Miranda rights and defendant waived them, admitting he knew he had rock cocaine, denying that he used it. He said to Sandmeier that he sold drugs and did not use drugs. . . .
"In the present case, defendant is charged with . . . possession of methamphetamine for sale . . . and . . . possession of marijuana for sale. . . .
"Defendant's approach to defending the possession for sale of methamphetamine and marijuana charges is that he was only a user, he had a medical recommendation for marijuana use due to a back injury, he is not a drug dealer and the 14.9 grams of methamphetamine and four pounds of marijuana found in his house belonged to his now deceased brother. [The d]efense argues that this is a 'possession case' and that intent is not an issue. This argument is deflated by the indications in the case—based on defense counsel's questions of law enforcement and other witnesses and arguments—that four pounds of marijuana could be for personal use by a medical marijuana user and that the methamphetamine was possessed but defendant did not know what it was. Defendant has pled not guilty to both counts, each of which require proof beyond a reasonable doubt that he specifically intended to sell methamphetamine and marijuana.
"I find the prior admission of possession of rock cocaine . . . to be probative on the element of whether or not defendant had the intent to sell methamphetamine or marijuana on or about October 11, 2013. Although the admission involved a different substance . . . , the intent to sell required for a violation of Health & Safety Code Section 11351 or 11351.5 is practically identical to the intent required for the crimes charged in the present case and shows that defendant possessed illegal controlled substances with the intent to sell. That kind of transgression is not committed lightly. Moreover, defendant placed his intent at the forefront of the present case, eliciting testimony and presenting arguments designed to show that he was a user, not a seller. The jury, as the trier of fact, can decide whether the prior admission for selling cocaine in 2008 represented an intention that not only conflicted [with] defendant's arguments during trial, but also established an intent to sell methamphetamine or marijuana, given all of the other evidence in the case.
"I do not find that the probability of admitting the drug sales statement from 2008 creates undue prejudice that substantially outweighs its probative value, which goes to a disputed issue in this case, defendant's intent to sell. His denials of selling drugs made to police at the scene conflict with his admitted intention to sell drugs in the past. The prior admission is for the limited purpose of proving intent. Jurors will be given a limiting instruction pursuant to CALCRIM [No.] 375, which only allows the evidence to be used on the issue of intent and prevents them from using the prior conviction to conclude that the defendant has a bad character or is disposed to commit crime. For similar reasons, the prior admission will not mislead jurors or lead to confusion. Finally, the testimony of Sandmeier will not consume undue time.
"Finally, I do not find the prior conviction to be too remote. Defendant has not exactly led a blameless life since 2008. The admission to Sandmeier is not so remote as to be non-probative of the disputed intent to sell methamphetamine in the present case."
Immediately after Officer Sandmeier testified, the trial court instructed the jury pursuant to CALCRIM No. 375 that it could consider this evidence only for the limited purpose of deciding whether defendant intended to sell the drugs in this case. The court later gave that instruction more fully in writing.
Defendant contends the trial court's written ruling was an abuse of discretion because it was "not based upon the evidence presented prior to its . . . decision"; rather, at the time the court ruled, "the only argument as to intent was defense counsel's representation that intent was not an issue in the trial." Defendant is mistaken.
Under section 1101(b), evidence of a prior bad act is admissible to prove intent: that is, "that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 (Ewoldt).) To obtain a conviction for possession of a controlled substance with intent to sell, the prosecution must prove beyond a reasonable doubt that defendant possessed the substance either with the specific intent to sell the substance personally or the specific intent that someone else will do so. (People v. Ramos (2016) 244 Cal.App.4th 99, 105.)
Officer Hughes's testimony in the section 402 hearing, given before the trial court ruled and referred to it in its ruling, showed that defendant claimed to have possessed the drugs found in the house, but not for purposes of sale. Even aside from the general rule that a not-guilty plea puts every element of the charged offense at issue, including intent (People v. Carpenter (1997) 15 Cal.4th 312, 379; People v. Daniels (1991) 52 Cal.3d 815, 857-858), Hughes's testimony put defendant's intent in possessing the drugs squarely at issue—regardless of counsel's assertion about the defense theory of the case, which was not evidence. (See Bostic v. Love (1860) 16 Cal. 69, 72-73; People v. Barajas (1983) 145 Cal.App.3d 804, 809 [unsworn statements of counsel].) It is true that defendant also put on evidence suggesting that not he but his deceased brother possessed the seized drugs. But that evidence did not nullify his statement to the police.
Nor did counsel's argument, evidently rejected by the jury, that defendant was confused about the "desk" from which the police had seized evidence, and therefore appeared to admit possessing the drugs found in the office desk when he meant to admit only to possessing drugs in his own bedroom desk. --------
Defendant makes no distinct argument going to undue prejudice under section 352. He argues only that the evidence the trial court admitted was necessarily more prejudicial than probative because it was not probative at all, a point we have already rejected. He cites the high court's analysis of the use of section 1101(b) evidence to prove intent in Ewoldt, supra, 7 Cal.4th at pages 404-408, but misconstrues the court's reasoning. The court there stated that use of prior-acts evidence to prove intent in that case would have been prejudicial because the evidence of the defendant's charged conduct (repeated acts of sexual assault), if believed, would have left no room for doubt about his intent. (Id. at p. 406.) Here, by contrast, if the jury believed defendant possessed the drugs seized by the police, it still had to decide whether he possessed them for personal use or for sale: The bare fact of his possession did not establish his intent. Thus, Ewoldt is inapposite on this point.
Defendant has shown no error in the trial court's ruling. Therefore, we need not address his contentions that the alleged error violated due process and cannot be found harmless. B. Penalty Assessments
Defendant contends the trial court erred in two different ways as to imposing penalty assessments. His first contention has now been impliedly rejected by our Supreme Court. His second contention appears to be based on a clerical error in the record, which we shall correct.
Defendant first attacks the trial court's imposition of any penalty assessments on the laboratory fee of $100 (Health & Saf. Code, § 11372.5) and the drug program fee of $150 (Health & Saf. Code, § 11372.7). He contends, in reliance on numerous decisions, that these penalty assessments were improper because the laboratory fee and the drug program fee are nonpunitive in purpose and therefore do not constitute fines or penalties on which penalty assessments may be imposed. He asks us to reconsider our contrary conclusion in People v. Moore (2017) 12 Cal.App.5th 558, review granted September 13, 2017.
However, People v. Ruiz (2018) 4 Cal.5th 1100, issued after the briefing in this case was completed, held that the laboratory fee and the drug program fee constitute punishment, and disapproved the decisions defendant relies on to the extent they held otherwise. (Id. at p. 1122 & fn. 8.) Although Ruiz did not decide the question whether these fees are subject to penalty assessments, which had not been timely briefed (id. at p. 1122), we see no basis in Ruiz's holding for finding that they are not. Therefore, we continue to think our conclusion in Moore, supra, was correct (although under Cal. Rules of Court, rule 8.1115(e)(1), Moore's review-pending status makes it uncitable except for potentially persuasive value).
Defendant next attacks the trial court's apparent imposition of two separate penalty assessments under Government Code section 76104.6 (the "DNA Fingerprint, Unsolved Crime and Innocence Protection Act") on the laboratory and drug program fees. He contends only one such penalty assessment as to each fee was proper. The Attorney General agrees. As we shall explain, however, it appears that the court simply committed a typographical error which we may correct on our own motion.
In its Modification of Sentence Order, the trial court purported to impose penalty assessments pursuant to Government Code section 76104.6 as follows: $10 and $40 on the laboratory fee (Health & Saf. Code, § 11372.5), and $15 and $60 on the drug program fee (Health & Saf. Code, § 11372.7).
Government Code section 76104.6, subdivision (a)(1) provides that "there shall be levied an additional penalty of one dollar ($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses." Because the court imposed a laboratory fee of $100 and a drug program fee of $150, the amounts of $10 as to Health and Safety Code section 11372.5 and $15 as to Health and Safety Code section 11372.7 are correct.
The parties agree that the sums of $40 and $60, also purportedly levied under Government Code section 76104.6, are incorrect, since that provision does not provide for a double penalty or produce the amounts imposed by the trial court. However, we note that those penalties would be correct under Government Code section 76104.7, subdivision (a), which provides: "Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of four dollars ($4) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the court for all criminal offenses." None of the exceptions stated in this statute apply here. Therefore, we conclude that the court meant to impose the $40 and $60 penalties pursuant to Government Code section 76104.7. We direct the trial court to prepare a modified sentencing order and abstract of judgment reflecting that these penalties are imposed under Government Code section 76104.7, and to furnish certified copies thereof to the Department of Corrections and Rehabilitation.
III. DISPOSITION
The trial court is ordered to correct the sentencing order and abstract of judgment as described in part B of the Discussion and to furnish certified copies of the corrected documents to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HULL, J.