Opinion
A150634
07-05-2018
THE PEOPLE, Plaintiff and Respondent, v. DYLAN MICHAEL WILSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51618347)
Appellant Dylan Michael Wilson was convicted, following a jury trial, of possession for sale of cocaine, oxycodone, and alprazolam, and simple possession of heroin. On appeal, he contends (1) the trial court should have granted his motion to suppress evidence because the search clause in a prior probation case had been suspended pending appeal; (2) there was insufficient evidence that the cocaine, oxycodone, and alprazolam were possessed for sale; (3) the court misinstructed the jury regarding when it could consider the lesser included offenses; and (4) the finding that he violated his probation was incorrect because the probation case was stayed pending appeal. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by second amended information with possession for sale of four controlled substances: cocaine (Health & Saf. Code, § 11351—count 1); heroin (§ 11351—count 2); oxycodone (§ 11351—count 3); and alprazolam (§ 11378—count 4). The information also contained an allegation that appellant had violated his probation in a prior case (No. 011676790). (See Pen. Code, § 1203.3.)
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Appellant subsequently filed a motion to suppress evidence, which the court denied.
Following a jury trial, the jury found appellant was guilty on counts 1, 3, and 4. The jury found him not guilty on count 2 (possession of heroin for sale), but found him guilty of the lesser included offense of simple possession of heroin.
The court then found that appellant had violated the terms of his probation in the prior case.
On February 10, 2017, the court sentenced appellant to two years in county jail on count one and to concurrent two-year terms on counts 3 and 4 and the probation violation.
On February 15, 2017, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Contra Costa County Deputy Sheriff David Flack testified that around 8:15 a.m. on March 3, 2016, he was on duty in Orinda when he observed a blue SUV parked on Bryant Way in a park-and-ride area, with a white male inside. The posted signs on the street stated that parking was restricted to drop off and pick up of passengers from 5:00 a.m. to 9:00 a.m. Two-hour parking was permitted starting at 9:00 a.m. Around 12:15 p.m., Flack walked by the vehicle, which was in the same spot as earlier, and saw that there was no one inside. After he went to lunch, around 1:30 p.m., Flack walked by the vehicle, which was still in the same spot. He again saw a person inside the vehicle. At trial, Flack identified that person as appellant.
Flack ran a record check of the SUV's license plate and learned that the vehicle registration was expired. He contacted appellant inside the vehicle. Appellant said that everything in the vehicle was his; he had just been kicked out of his house and he was now living in his car.
Flack searched the vehicle and the first thing he found was a glass pipe with a bulbous end, which is commonly used to smoke methamphetamine. He then searched a green backpack on the passenger's seat, where he found a bag containing a large amount of a white powdery substance. Based on his background, training, and experience, Flack believed that the substance was cocaine. At that point, Flack told Contra Costa County Deputy Sheriff Joe Ladner, who had arrived as backup, to place appellant in handcuffs.
After appellant was handcuffed, Flack searched him. In a pocket of his shirt, Flack found a piece of cardboard that was taped together. Inside the cardboard were two plastic baggies, one containing a brown powdery substance and one containing a white powdery substance. Flack recognized the brown powdery substance as heroin. He believed the white powdery substance was methamphetamines.
Flack then continued to search appellant's vehicle. In addition to personal items, such as clothes, he found five cell phones in different places in the car, including in the backpack and on the front seat. Inside the backpack, he also found a tablet computer, two small notebooks, three bags of whitish powder, and a pill bottle. He located two scales, a mortar and pestle, and a flour sifter in a box on the backseat of the vehicle. A white powdery substance was visible on the scales and the flour sifter. Also inside the box were a roll of aluminum foil; more plastic baggies; a glass cylinder; white pills with the letter "M" stamped on them; baggies containing green oblong pills with "S903" stamped on them; multiple oblong yellow pills stamped "039," packaged one or two together inside various baggies; and two partial pills in a baggie. Flack also found 50 to 75 Ziploc baggies of various sizes.
After Flack arrested appellant and advised him of his Miranda rights, appellant told him and Ladner that the white pills were "oxy" and the oblong pills were "Xanax," which is the brand name for the drug alprazolam. Appellant told Ladner that the brown powder was heroin.
Miranda v. Arizona (1966) 384 U.S. 436.
Monica Siegrist, a criminalist for the Contra Costa County Sheriff's Department, testified as an expert in detecting and measuring controlled substances and samples. The baggie with brown powder found in appellant's shirt pocket contained 1.636 grams of combined heroin and cocaine, and the baggie with white powder also found in his shirt pocket contained 0.028 grams of cocaine. Both amounts were usable.
Items found in baggies within the box in the backseat of the SUV were also tested, with the following results: 63 pills tested positive for oxycodone and 16 pills tested positive for alprazolam. All amounts were usable.
The various baggies found in the backpack on the front seat of the SUV contained the following: 5.435 grams of cocaine; 0.707 grams of cocaine; 0.051 grams of cocaine; 0.121 grams of cocaine; 0.032 grams of cocaine; and 0.324 grams of cocaine and oxycodone. All of these quantities were usable.
Deputy Ladner testified as an expert in the use of packaging and sales of controlled substances. Ladner believed the cocaine was possessed for sale based on the large amount appellant possessed, the pay-owe sheets, a cutting agent that was found in the vehicle, the mortar and pestle, the flour sifter, and the large number of small plastic bags. Ladner believed the mix of heroin and cocaine that was found was possessed for sale because it was in a plastic bag, hidden in cardboard in appellant's shirt pocket, which made it easily accessible for a quick sale. Ladner believed the oxycodone was possessed for sale due to the large number of pills in appellant's possession. He believed the alprazolam was possessed for sale based on its packaging, with four pills per baggie. Ladner also testified that normal users generally have one type of controlled substance in their possession, in addition perhaps to marijuana. It is very rare to find a user who will use multiple drugs at one time.
On cross-examination, Ladner acknowledged that the presence of a piece of aluminum foil with partially smoked oxycontin on it could indicate that appellant was a drug user. He also acknowledged that several dates had been written on a page of a notebook found in the SUV, including December 16, 2015 and January 14, 2016.
DISCUSSION
I. Motion to Suppress
Appellant contends the trial court should have granted his motion to suppress evidence because the search clause in his probation case had been suspended pending appeal.
A. Trial Court Background
1. Prior Case History
In the prior case, appellant pleaded no contest on October 23, 2014 to reckless driving in Contra Costa County Superior Court and was placed on probation, with a required 240-day jail term. One of the conditions of his probation in that case required that he submit his person and property to warrantless search and seizure. His date of surrender to serve the jail term was set for January 2, 2015.
On January 5, 2015, appellant's surrender date was extended to March 6. On March 2, the surrender date was stayed until March 20. On March 20, the court denied appellant's motion to withdraw his plea and stayed his surrender date until June 15. On May 8, the court denied appellant's renewed motion to withdraw his plea and granted his request for a certificate of probable cause for purposes of appeal. Also on May 8, appellant filed a notice of appeal.
On May 31, 2017, in an unpublished opinion, a panel of this Division set aside the trial court's judgment in the prior case for the limited purpose of permitting the court to reconsider appellant's motion to withdraw his no contest plea. (People v. Wilson (May 31, 2017, A145312) [nonpub. opn.].) On July 13, 2017, we granted appellant's request to take judicial notice of the opinion in that matter.
A June 15, 2015 minute order states, "Stay extended—pending appeal." A July 6 minute order states, "Case was stayed pending appeal on 6/15/15."
2. Motion to Suppress in the Present Case
Appellant moved to suppress evidence found during the search of his person and vehicle on the ground that the search was conducted without a warrant. (See Pen. Code, § 1538.5.)
At the hearing on the motion to suppress, the trial court reviewed the minute orders from the prior case. The court then stated, "June 15, the stay of surrender was extended pending appeal. [¶] So, having gone through each and every minute order, the only thing I can find is that the turn-in date was stayed.
The judge at the hearing was the Honorable Bruce Mills, the same judge who signed the minute orders at issue in the prior case. (See pt. I.A.1., ante.)
"And that would be consistent with my practice. Unless the appellate department stayed the sentence, it's not my practice to stay a sentence pending appeal. I leave that up to the Appellate Department to decide whether they want to do that or not. [¶] The only thing that was stayed in this case is [appellant's] turn-in date. [¶] . . . [¶] So the other terms though, the don't use or possess narcotics [sic], narcotic paraphernalia, search clause, all of those other things were still in effect. [¶] The only thing that was stayed was his turn-in date."
The court then reiterated that in the June 15, 2015 minute order, "[t]he stay that was extended was his turn-in date." The court further explained that the reference in the July 6 minute order to the case being stayed pending appeal on June 15 was "just a reference to the 6/15[/15] date. [¶] The only thing that was ever stayed was his turn-in date. [¶] And that would be consistent with my practices. There would be no reason to withdraw the, what I would call standard drug terms of [probation] and four-way search, and all the things that would go with that. [¶] So the only thing that was ever stayed, again, was the turn-in date."
The court denied the motion to suppress evidence because appellant "was subject to a four-way search clause."
B. Legal Analysis
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 891, abrogated on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637.)
Appellant claims the record reflects that the entire case, including the search clause, was stayed at the June 15, 2016 hearing. Appellant is incorrect. At the suppression hearing, Judge Mills, who had also signed the minute orders in question in the probation case, reviewed those orders and repeatedly stated that only appellant's surrender date had been stayed throughout the process. His other conditions of probation, including the search clause, remained in effect during the pendency of the appeal.
Considering the language and sequence of the various minute orders, along with Judge Mills' factual findings, we conclude the motion to suppress evidence was properly denied because on March 3, 2016—the date of the searches and seizures in this case—the search clause in appellant's probation case permitted warrantless searches of appellant's person and property. (See People v. Bravo (1987) 43 Cal.3d 600, 608 [probation search condition justifies a warrantless search since a probationer "consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term"]; see also People v. Hoyos, supra, 41 Cal.4th at p. 891.)
II. Sufficiency of the Evidence
Appellant contends there was insufficient evidence to support his convictions for possession of the cocaine, oxycodone, and alprazolam for sale.
In evaluating appellant's claim, " 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime[s] . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict. [Citation.]' [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 87 (Manibusan).)
Here, Ladner, an expert in the packaging and sales of controlled substances, believed that the cocaine was possessed for sale based on the amount found, the pay-owe sheets, the cutting agent, the mortar and pestle, the flour sifter, and the large number of small plastic bags. He believed that the oxycodone was possessed for sale due to the large number of pills and that the alprazolam was also possessed for sale based on its packaging, with four pills per baggie. This evidence is sufficient to support the convictions for possession for sale of cocaine, oxycodone, and alprazolam. (See People v. Parra (1999) 70 Cal.App.4th 222, 225; see also Manibusan, supra, 58 Cal.4th at p. 87.)
Appellant argues that this case is distinguishable from People v. Parra, in which a police officer witness's opinion that the defendants possessed cocaine for sale was based on the way the cocaine was packaged, the amount recovered from the defendants' car, the fact that cocaine was hidden behind the car's dashboard, the absence of drug paraphernalia in the car, and the fact that neither defendant appeared to be under the influence of narcotics. (People v. Parra, supra, 58 Cal.4th at p. 87.) Here, on the other hand, appellant was homeless and had all of his belongings in the car. In particular, the drugs were found boxed up with his other belongings and there was no evidence of any cash found during the searches. Appellant further observes that the most recent date listed in one of the notebooks found in the SUV was January 14, 2016, seven or eight weeks before appellant's arrest. Nor was there evidence of appellant's involvement in any drug transactions in the hours between Flack seeing the SUV and appellant's arrest.
In making this argument, appellant is essentially asking us to reweigh the evidence. On appeal, however, " '[w]e do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact.' [Citation.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1545-1546.) As we have already explained, Ladner's expert testimony regarding why he believed appellant possessed the drugs in question for sale provided substantial evidence to support the jury's verdicts on counts 1, 3, and 4. (See Manibusan, supra, 58 Cal.4th at p. 87.)
III. Jury Instruction on Lesser Included Offenses
Appellant contends the court misinstructed the jury regarding when it could consider the lesser included offenses relative to the charged offenses.
" ' " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " [Citations.]' " (People v. Covarrubias (2016) 1 Cal.5th 838, 905.) In addition, " '[n]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.' [Citation.]" (Id. at p. 906, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.)
The court instructed the jury on the joint union of act and intent with a modified version of CALCRIM No. 252, which addressed the specific intent required for the charged offenses and the general intent required for the lesser included offenses:
"The crimes charged in Counts One through Four require proof of the union, or joint operation, of act and wrongful intent.
"Each of the crimes charged in Counts One through Four requires proof a specific intent or mental state. For you to find a person guilty of the crime of Possession of a Controlled Substance for Sale, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime.
"If you find that the defendant is not guilty of any one of the crimes charged in counts One through Four, you must then consider whether the defendant is guilty of the lesser-included crime of that count, that is, the crime of Possession of a Controlled Substance. For you to find a person guilty of the crime of Possession of a Controlled Substance, that person must not only commit the prohibited act, but must do so with general criminal intent. A person acts with general criminal intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime." (Italics added.)
In its oral instruction, the court stated that if the jury found appellant not guilty of a charged offense, it "must then decide whether" appellant was guilty of the lesser included offense for that count. (Italics added.)
The court also instructed the jury with CALCRIM No. 3515:
"Each of the counts charged in this case, and each of the lesserincluded crimes of those counts, is a separate crime. You must consider each count separately and return a separate verdict for each one. [¶] However, you may not enter a verdict on any lesserincluded crime for any particular count unless you have found the defendant not guilty of the charged crime." Appellant does not claim that this instruction contained any misstatement of law.
Appellant argues that the italicized language in the court's instruction, which is not contained in the original version of CALCRIM No. 252, is contrary to CALCRIM No. 3517, which the court did not give in this case and to the Supreme Court's holding in People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman).)
CALCRIM No. 3517 states in relevant part: "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." --------
In Kurtzman, our high court concluded that a prior case, Stone v. Superior Court (1982) 41 Cal.3d 503, "should be read to authorize an instruction that the jury may not return a verdict on the lesser offense unless it has agreed beyond a reasonable doubt that defendant is not guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense." (Kurtzman, supra, 46 Cal.3d at p. 329; accord, People v. Olivas (2016) 248 Cal.App.4th 758, 773.) The court therefore held that the trial court had erred when, in response to the jury's question regarding whether it could find the defendant guilty of manslaughter without unanimously finding him not guilty of second degree murder, it stated: " 'No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter.' " (Kurtzman, at pp. 328, 335.)
The Kurtzman court concluded, however, that the error was harmless under the state standard of prejudice: "[B]ecause the jurors had in fact deliberated on both degrees of murder and on voluntary manslaughter for two days prior to the first erroneous instruction and because even thereafter, despite erroneous guidance from the court, they obviously continued to consider both voluntary manslaughter and second degree murder, it is not reasonably probable that a different result would have occurred had the contested instructions not been given." (Kurtzman, supra, 46 Cal.3d at p. 335; see People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also People v. Olivas, supra, 248 Cal.App.4th at p. 775 [applying Watson standard of prejudice based on Kurtzman and other authorities].)
Here, assuming appellant has not forfeited the issue on appeal due to his apparent failure to object to the language of modified CALCRIM No. 252 or to request CALCRIM No. 3517 (see, e.g., People v. Young (2005) 34 Cal.4th 1149, 1211 [no forfeiture for failing to object to erroneous instruction if error affected defendant's substantial rights]), we find no error. The instruction did not, as appellant argues, preclude the jury from considering or discussing the lesser included offenses before it returned verdicts on the charged offenses. Rather, it simply told the jury that once it found appellant not guilty of any of the charged crimes, it "must then consider [or decide] whether the defendant is guilty of the lesser-included crime of that count." (Italics added.) We do not believe this language would have caused the jurors to believe they could not consider or discuss the lesser included offenses before returning verdicts on the greater offenses. While the sentence in question did include the word "consider," at least in the written version of the instruction, in context, it told the jury when, if ever, it was to actually decide appellant's guilt on the lesser included offenses. It did not state that the jury could not discuss the lesser included offenses or any evidence relevant to them until after it had returned verdicts on the charged offenses. (Compare Kurtzman, supra, 46 Cal.3d at p. 328 [trial court told jury it " 'must unanimously agree on the second degree murder offense before considering voluntary manslaughter' "].)
Moreover, even assuming the language of modified CALCRIM No. 252 erroneously implied that the jury could not discuss the lesser included offenses whenever they chose to do so, and therefore did violate the holding in Kurtzman, we conclude the error did not prejudice appellant. (See Kurtzman, supra, 46 Cal.3d at p. 335; Watson, supra, 46 Cal.2d at p. 836.) We find puzzling appellant's assertion that, "[g]iven that the jury acquitted [appellant] on one of the greater offenses (heroin for sale) despite the erroneous instruction, it is reasonably probable that the jury would not have convicted on the other three greater offenses had they been properly instructed on when they could have considered the lesser offenses." On the contrary, the fact that the jury found appellant not guilty of possession for sale of heroin but, instead, guilty only of simple possession, demonstrates the lack of prejudice. Unlike the other three counts, in which the quantity and/or packaging of the controlled substances provided extremely strong evidence that they were possessed for sale, appellant possessed only a small amount of heroin, in a plastic bag in his pocket. Had the evidence of possession for sale of the cocaine, oxycodone, or alprazolam been as meager as that related to the heroin, it is difficult to imagine that the jury would not have likewise acquitted appellant of those charged offenses as well. Accordingly, appellant has not shown that it is reasonably probable that the result would have been different in the absence of the alleged instructional error. (See Watson, at p. 836.)
IV. The Probation Violation Finding
Appellant contends the court incorrectly found that he violated his probation because the probation case was stayed pending appeal. He also contends that, in light of this court's decision on appeal in the case underlying his probation, "the probation revocation aspect of this case . . . should be remanded to join the main portion of this case."
First, as we have already explained in part I., ante, of this opinion, appellant's probationary status, which included a search clause, was in effect at the time of the searches in the present matter. Second, a remand is unnecessary. As respondent points out, if the motion to withdraw appellant's plea in case No. 0116790 is granted, "the judgment against appellant, and the order of probation upon which it rests, will no longer exist." Such a future result would not, however, affect this case since at the time he committed the present offenses, appellant's probationary status was in effect.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.