Opinion
B228852
11-15-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT WILLIAM BATES et al., Defendants and Appellants.
Lea Rappaport Geller, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant Robert William Bates. Maureen L. Fox, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant Sandra Lynn Bates. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA091439)
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles E. Horan, Judge. Affirmed.
Lea Rappaport Geller, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant Robert William Bates.
Maureen L. Fox, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant Sandra Lynn Bates.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Robert and Sandra Bates appeal their convictions for receiving stolen property, child endangerment, and possession of drugs for sale. Sandra, joined by Robert, asserts in her brief: (1) that the court improperly admitted opinion testimony from a detective concerning the types of violent activities that could occur and create a risk to children at a house where drugs are sold; and (2) that the prosecutor engaged in misconduct by insinuating in opening statement that stolen property other than that at issue in the case was found in appellants' home. We affirm.
To avoid confusion, the parties will be referred to by their first names. Only Robert was found guilty of possession of drugs for sale.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
In six counts of a ten-count information, appellants were charged with four counts of receiving stolen property (Pen. Code, § 496, subd. (a), counts 5 through 8), one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 9), and one count of misdemeanor child endangerment (§ 273a, subd. (b), count 10). Two of the receiving stolen property charges counts 6 and 8 -- were dismissed pursuant to a motion by the prosecution; the remaining counts were tried.
The first four counts involved a co-defendant who is not a party to this appeal. In count 5, the stolen property was described as a watch and jewelry; in count 6, the stolen property was described as a Canon digital camera and jewelry; in count 7, the stolen property was a television, laptop, camera and necklace; and in count 8, the stolen property was a laptop and mouse pin.
Undesignated statutory references are to the Penal Code.
B. Evidence at Trial
1. Prosecution Evidence
Sheri Callen, who lived in LaVerne, testified that her home had been burglarized on November 16, 2009. The items stolen included briefcases, $3,000 cash, a wedding ring, several watches, a tie tack or pin, a laptop computer, and multiple checkbooks and credit cards. Pengyu Zhu, who lived in San Dimas, testified that on November 19, 2009, his home was burglarized. The items stolen included a plasma television, computers, an iPod and some cameras.
Detective Robin Amador was investigating the burglaries and obtained information that a certain vehicle may have been involved. She obtained a search warrant to search Unit 79 of a mobile home park. When she went to execute the warrant, she saw that the vehicle was parked near Unit 3, where appellants lived with their two young children. Detective Amador noticed Robert at the window of Unit 3, motioned him outside, and asked him about the vehicle. She learned that Robert owned the vehicle jointly with Christopher Kester. Detective Amador told Robert the vehicle had been involved in a burglary. Robert then said that the property the detective was looking for was inside his mobile home. Robert agreed to show Detective Amador the stolen property but said he would not permit her to search the rest of the home. Detective Amador obtained a search warrant for appellants' home.
The older child was 3 years old; the younger child was 15 months old.
Robert said he lent Kester money for the vehicle and that Kester was the primary driver. Robert had it at his unit because Kester had been arrested the day before and Robert had been asked to pick up the vehicle.
Sheriff's deputies Rudolf Schaap, Allen Rich and Angel Jaimes testified that on December 1, 2009, they were sent to the mobile home park to execute the warrant. In a storage area in the master bedroom of appellants' home, they found baggies containing a white crystalline substance. In the closet of the master bedroom, they found a jewelry box, some laptop computers, a home computer, and a bank bag with over $1,500 cash in it. Inside a chest of drawers in the bedroom, deputies found checkbooks. Also in the bedroom, out in the open, they found another computer and a keyboard. Inside the hall closet and in the living room were two digital scales and some empty baggies. There was a plasma television and a video camera in the living room. Deputy Schaap found a weapon he identified as a "taser" located on a counter in the kitchen. It was at a height that would have been accessible to the older of appellants' two children.
The substance was later tested and found to contain methamphetamine.
Deputy Schaap expressed the opinion that the scale in the closet was of a type that could be used to weigh narcotics. Deputy Rich expressed the opinion that the baggies were of the type often used to package narcotics for sale. Deputy Jaimes expressed the opinion that the drugs, scales and extra baggies found at the location were indicative of drug sales.
After the search, Callen was called to the sheriff's station and identified the wedding ring and other jewelry missing from her home. Some of the missing checks were also recovered and identified by Callen, along with some mail that had been taken in the burglary. Zhu identified the plasma television, a computer and a camera.
"Taser" is a brand name for a particular manufacturer of electroshock weapons. Taser-brand weapons generally fire projectiles which administer a shock through attached wires. The witnesses agreed that the weapon found in appellants' home was the kind that administers an incapacitating shock by direct contact and had no projectiles. Sandra referred to it as a "stun gun."
In an interview with Detective Amador after the search, Robert said that Kester brought the stolen property into appellants' home and that he "shouldn't have gotten so deep into this shit with Chris." In a post-arrest interview, Sandra said that Kester had been the source of the plasma television found in the living room and that she believed it had been stolen. She further stated that Kester brought other items of property into the home that she believed had been stolen. Sandra admitted being a methamphetamine user. She said at least one other person bought and used methamphetamine in appellants' home. Sandra told the detective that she had found the Taser/stun gun in the living room two months earlier.
2. Defense Evidence
Sandra testified that Kester had been using the master bedroom of appellants' home off and on for a few weeks prior to the search. He kept his belongings there, occasionally slept there, and generally got in and out using a back entrance. Sandra did not know anything about the methamphetamine, money, or stolen items found there by the deputies. She had seen the scale and empty baggies in the living room and had asked her husband to get rid of them. The plasma television in the living room belonged to Kester. He was keeping it there because it did not fit in the bedroom. Sandy did not ask Kester where he got it and at first, did not know or suspect it was stolen. Sandy testified the Taser/stun gun was kept in a cupboard inaccessible to the children unless she took it for protection when she went out at night. Then, it would be in her purse. She denied that it was on the countertop at the time of the search or that she would ever leave it out and accessible to the children.
She admitted she had no reason to believe Kester was employed or had a legitimate source of income.
Sandra admitted being a user of methamphetamine, but denied having used that day or the night before and denied using drugs in front of the children. She denied selling drugs, denied that her husband sold drugs, and denied telling Detective Amador that drugs were being sold from their home or being used in their home. Sandra admitted telling Detective Amador in her post-arrest interview that she believed that the television and other items Kester brought into appellants' home were stolen. She said that she came to that realization while sitting in the police car and in her cell after her arrest.
3. Rebuttal
Detective Amador testified on rebuttal that when she first arrived to conduct the search, Sandra appeared to be coming out of the master bedroom and said that the bedroom was hers and her husband's. Sandra also said that she believed the television in the living room was "probably" stolen and that Kester had left other items in appellants' home that she believed were stolen. Sandra told the detective that she and Robert were selling methamphetamine out of the mobile home and that people came into their home to use methamphetamine.
C. Verdict and Sentencing
The jury found Robert Bates guilty on all four counts (two counts of receiving stolen property, one count of possession for sale and one count of child endangerment). Sandra Bates was convicted of one count of receiving stolen property (count seven) and of child endangerment, and was acquitted of another count of receiving stolen property (count five). The jury deadlocked on the charge of possession for sale, and it was dismissed.
The court sentenced Sandra to a term of two years in state prison for receiving stolen property and a term of 90 days in county jail, concurrent with the state prison term, for child endangerment. The court sentenced Robert to a total term of 14 years, eight months, which included three years for possession for sale, eight months for one count of receiving stolen property to run consecutively, plus 11 additional years for enhancements based on prior convictions and prison terms. For the second count of receiving stolen property and child endangerment, the court imposed concurrent sentences of two years and 90 days, respectively.
DISCUSSION
A. Opinion Testimony
1. Background
When examining Detective Amador at trial, the prosecutor elicited testimony concerning her experience. Detective Amador said she had been a deputy for 21 years and had worked narcotics. The prosecutor then asked if in her experience, violence occurs at locations where narcotics were being sold and, if so, to give examples. No objection was raised. The detective responded in the affirmative and gave the following examples: "[I]f the drug buy goes bad, gun play, fights. There's been instances where children have been taken in retaliation. Oftentimes the drugs are being used right there either with the children home or in front of the children. . . . [C]ertain narcotics[,] [t]hey don't have to necessarily ingest it. It can be absorbed right through their system. [¶] Any time there are sales at the house, people [who] usually go[] in there to buy drugs, they are not exactly on the upper echelon of society. They are usually suspects themselves in other crimes."
In closing, the prosecutor argued with respect to the child endangerment charge: "[W]hat we have here is . . . a three-year-old, and a toddler, who are in a home where there is drug use going on [as admitted] to Detective Amador by Mrs. Bates. Drug sales are going on. You heard from Detective Amador as to the kind of violence that happens in locations where drugs are being sold, that children are kidnapped as a result, that there are people that come in to rob drug homes. They expect there to be cash and drugs that can be sold." The prosecutor further pointed to the evidence that the Taser/stun gun was "sitting out where the three-year-old could reach it." He also referred to Sandra's statement that people would come over to "party" and buy drugs.
Appellants contend that the detective's opinion testimony concerning the types of risks inherent in running a drug sale operation was inadmissible and that trial counsel was ineffective for failing to object. We conclude the testimony was unobjectionable.
2. Analysis
Under section 273a, subdivision (b), "[a]ny person who, under circumstances or conditions other than those likely to produce great bodily harm or death, . . . having the care or custody of any child, . . . willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor." Section 273a "punishes the acts generally classed as child abuse." (People v. Ewing (1977) 72 Cal.App.3d 714, 717.) It does not require actual injury; the provision is intended to protect children from the risk of injury. (See People v. Odom (1991) 226 Cal.App.3d 1028, 1032; People v. Deskin (1992) 10 Cal.App.4th 1397, 1401 ["The criminal acts proscribed by both the felony and misdemeanor subdivisions of section 273a [include] . . . willfully placing a child under one's care or custody in a situation where [his or her] person or health may be endangered"].) "'Willful,'" as used in the statute, "does not require a specific intent to violate the law or to injure another. Rather, it requires a purpose or willingness to commit the act or make the omission. [Citations.]" (People v. Odom, supra, at p. 1032.) "The degree of culpability required by the statute has been determined to require 'criminal negligence in the commission of an offending act.' [Citations.] Criminal negligence 'means that the defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care . . . .'" (Ibid., quoting Walker v. Superior Court (1988) 47 Cal.3d 112, 135.)
Here, the testimony elicited by the prosecutor was intended to establish through expert opinion that the children were at risk of physical injury from living in a home where drugs were packaged and sold. Courts have recognized the dangers to children inherent in living in homes where drugs or drug manufacturing components are present. (See People v. Perez (2008) 164 Cal.App.4th 1462, 1473 [jury could reasonably conclude that "leaving drugs and drug paraphernalia in plain view and/or within easy access of a four-year-old child placed that child at unreasonable risk of her personal safety"]; People v. Toney (1999) 76 Cal.App.4th 618, 623 [in-home storage of the dangerous, flammable chemicals used to manufacture methamphetamine supported felony child endangerment charge without regard to whether methamphetamine was actually manufactured there].) Thus, the subject of Detective Amador's testimony was relevant to the child endangerment charge.
Similarly, Detective Amador's experience as a narcotics officer qualified her to testify to conditions and events occurring in homes where drugs were kept or sold. The rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. (People v. Torres (1995) 33 Cal.App.4th 37, 47.) "A person is qualified to testify as an expert if [she] has special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert on the subject to which [her] testimony relates." (Evid. Code, § 720, subd. (a).) "'The decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of the inquiry is . . . sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (People v. Hernandez (1977) 70 Cal.App.3d 271, 280.) Detective Amador had special expertise concerning the prevalence of violence in drug houses from her years as a law enforcement officer and from her specialized work in the area of narcotics. The information related to the jury was outside their common experience and was of assistance to them in resolving a disputed charge. The testimony was, therefore, admissible.
B. Prosecutorial Misconduct
1. Background
In opening statement, the prosecutor said that the evidence would show appellants received property stolen from Sheri Callen and Pengyu Zhu. He further stated that when deputies searched appellants' home "they found a lot of stolen stuff, including items belonging to Sheri Callen and Mr. Zhu." After the prosecutor concluded his opening statement, counsel for Robert Bates moved for a mistrial, contending that the statement suggested there was stolen property present in appellants' home that was not the subject of the case. The court denied the motion. Appellants contend that this constituted prejudicial misconduct and that trial counsel was ineffective for failing to object. We conclude the claim was forfeited and that in any event, the statement did not constitute ground for reversal.
2. Analysis
A prosecutor's deliberate reference to nonexistent facts during argument is "'clearly misconduct.'" (People v. Hill (1998) 17 Cal.4th 800, 827-828; see People v. Harris (1989) 47 Cal.3d 1047, 1080.) It is equally clear that "[t]o preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) Here, neither counsel raised a timely objection. Robert's counsel asked for a mistrial, but did not seek to have the jury admonished after his motion was denied. Counsel for Sandra did not join in the motion and did not seek an admonition. (See People v. Wilson (2008) 44 Cal.4th 758, 793 ["'failure to join in the objection or motion of a codefendant constitutes a waiver of the issue on appeal'"].) Accordingly, the claim of prosecutorial misconduct is forfeited.
Moreover, even were we to consider the claim on the merits, we would not find ground for reversal. "The rule is well established, that prosecutorial misconduct in an opening statement is not grounds for reversal of the judgment on appeal unless the misconduct was prejudicial or the conduct of the prosecutor so egregious as to deny the defendant a fair trial." (People v. Harris, supra, 47 Cal.3d at p. 1080.) Here, the statement appears to have been a slip of the tongue. When describing the property at issue in the case elsewhere in the opening statement, the prosecutor mentioned only property stolen from Callen and Zhu. In closing argument, the prosecutor clarified that to prove the receiving stolen property charges, the State had to prove "[appellants] had . . . stolen property from Miss Callen and from Mr. Zhu in their home and they knew it was there, they knew it was stolen." He went on to describe the property found in appellants' home that belonged to Callen and Zhu, including the checkbook, the tie tack, and the plasma television. He did not refer to any other property found in appellants' home or suggest that it was stolen.
Finally, even were we to conclude the misstatement represented misconduct, defense counsel's failure to object and request an admonition appears to have been a deliberate tactical choice. Counsel could reasonably have concluded that an admonition would simply highlight the significance of the prosecutor's statement, which was otherwise likely to be overlooked by the jury. (See People v. Lewis (1990) 50 Cal.3d 262, 288, quoting People v. Pope (1979) 23 Cal.3d 412, 425 ["'[Where] the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.'"].)
Robert's counsel's mistrial motion was made at a bench conference, outside the presence of the jury.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: EPSTEIN, P. J. WILLHITE, J.