Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County, Super. Ct. No. MCR025417A, Edward P. Moffat, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Following a joint trial with codefendant Joni LaFlamme, defendant Thomas Donald Benn was convicted of possessing methamphetamine for sale and of possessing drug paraphernalia. Defendant argues on appeal the trial court erred by (1) denying his motion to suppress evidence recovered from the search of his travel trailer, (2) admitting into evidence hearsay statements made by callers during intercepted cell phone calls, (3) failing to limit to codefendant the evidence recovered from the house, and (4) failing to give defendant two more days of credits for time served. Defendant further argues that defense counsel was ineffective because he failed to object to the phone call statements on Sixth Amendment grounds. We will affirm.
PROCEDURAL HISTORY
On June 23, 2006, defendant and codefendant were charged with possession of methamphetamine for sale (Health and Saf. Code, § 11378; count 1) and possession of paraphernalia used for smoking a controlled substance (Health and Saf. Code, § 11364, subd. (a); count 2). On October 10, 2006, defendant filed a motion to suppress all evidence seized from his travel trailer (Pen. Code, § 1538.5). The prosecution filed an opposition to the motion on October 30, 2006. The trial court heard oral argument on November 3, 2006, and denied the motion.
All further statutory references are to the Penal Code unless otherwise noted.
On March 14, 2007, a joint jury trial commenced. The jury returned a verdict of guilty as to all charges against both defendant and codefendant.
On June 15, 2007, the trial court sentenced defendant to five years’ probation with 90 days to be served in county jail. The court gave defendant four days of credits for time served. On August 13, 2007, defendant appealed.
FACTS
On June 21, 2006, Madera police and sheriff officers executed a drug raid at a residence in the city of Madera. The residence was a single family residence with a travel trailer located in the backyard. The search warrant authorized search of the premises, any outbuildings, and any vehicle on the premises, and instructed officers to intercept all incoming phone calls.
Upon entering the house, the officers found codefendant inside. Codefendant was named in the search warrant and described in the supporting affidavit as a resident of the house. The officers broke down the locked door to the master bedroom. Codefendant later commented that it had not been necessary for the officers to breach the door as she had a key. In the master bathroom, officers found approximately 8.8 grams of methamphetamine, a bottle of hydrocodone pills, several methamphetamine pipes and a bag of marijuana.
Officers proceeded to the backyard as defendant and another person came out of the travel trailer. An officer asked defendant if they (the officers) were going to find any contraband in the trailer. Defendant replied that there was some “speed” in the trailer, but it was for his personal use.
Officers searched the travel trailer and recovered the following items: 5.5 grams of methamphetamine, several Tupperware-style containers with methamphetamine inside, three used methamphetamine pipes with methamphetamine residue, two digital scales, a plastic zip bag containing many smaller plastic zip bags, a wooden scoop, corn starch and a cell phone next to the bed.
While officers were searching the travel trailer, they intercepted two calls to the cell phone found inside the trailer. An officer answered the phone and a female, identified as Sherri on the screen of the phone, asked the officer where he was. The officer told her he was in his trailer and, suspecting that the call was regarding a narcotics deal, asked her how much she wanted. She told the officer she wanted “just a 20.” The second caller identified herself as Renee and asked the officer if she could drop by and pick up “a [20].” The officer who answered the calls testified that, in drug vernacular, “a 20” means anywhere from 0.3 to 0.6 grams of methamphetamine.
Defendant testified on his own behalf that he owned the travel trailer and had been living on the property for the last five years. He also claimed that he owned the digital scales because he measured his methamphetamine purchases to ensure that he did not get “ripped off.” He said that he had a bag of corn starch rather than a box because he had gotten it from the house. He also said the corn starch was for a rash in his armpit and not for use as a cutting agent. Defendant denied that he ever sold drugs and said the cell phone recovered from his trailer was not his.
DISCUSSION
I. Search Warrant
Defendant contends that the search of the travel trailer behind the house exceeded the scope of the warrant. Defendant argues that all evidence seized from the travel trailer should have been suppressed. We disagree.
“The scope of a warrant is determined by its language, reviewed under an objective standard without regard to the subjective intent of the issuing magistrate or the officers who secured or executed the warrant. [Citations.] Phrased differently, ‘the scope of the officer’s authority is determined from the face of the warrant ....’ [Citation.] As many courts have observed, ‘officers executing a search warrant are “required to interpret it,” and they are “not obliged to interpret it narrowly.”’ [Citations.] To satisfy the objective standard, the officer’s interpretation must be reasonable.” (People v. Balint (2006) 138 Cal.App.4th 200, 207.) The constitutionality of the officers’ execution of the search warrant is assessed “in light of the information available to them at the time they acted.” (Maryland v. Garrison (1987) 480 U.S. 79, 85.) Thus, even if we were to conclude the travel trailer was not an outbuilding or vehicle identified in the warrant, the search was lawful if the officers reasonably believed it was within the scope of the warrant. (Id. at p. 88.)
At the motion hearing in this case, defendant argued that the warrant did not specifically name the travel trailer and the trailer did not qualify as an outbuilding. He asserted that the prosecution’s authorities were distinguishable because they referred to buildings and trailers used for storage rather than trailers used as residences. The prosecutor argued the trailer was either an outbuilding or a vehicle. Defendant responded that the travel trailer was not a vehicle because it did not have an engine and had to be pulled. The court ultimately decided the trailer was an outbuilding within the scope of the warrant.
As noted, the warrant authorized the search of any vehicle found on the premises or under the control of an occupant of the premises. “A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.” (Veh. Code, § 670, italics added; People v. Philpot (2004) 122 Cal.App.4th 893, 901.) “A ‘trailer’ is a vehicle designed for carrying persons or property on its own structure and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon any other vehicle.” (Veh. Code, § 630, italics added.)
“Because the questioned search in this case occurred during execution of a search warrant, defendant had the burden of proving the search was beyond the warrant’s scope. [Citation.]” (People v. Reyes (1990) 223 Cal.App.3d 1218, 1224.) Although defendant argued the travel trailer did not have an engine and had to be pulled, he offered no other argument or evidence to establish that the travel trailer was not a vehicle. Travel trailers, despite not having engines, can be vehicles, as explained above, and defendant failed to meet his burden of proving facts establishing the officers were unreasonable in believing defendant’s travel trailer was in fact a vehicle.
II. Hearsay
Defendant argues that the statements made by callers during the intercepted cell phone calls should have been excluded because they constituted hearsay. Defendant further argues that admission of the statements prejudiced the jury and rendered the trial unfair in violation of his due process rights. We disagree.
Hearsay is defined as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) We review the court’s ruling under an abuse of discretion standard. (People v. Fields (1998) 61 Cal.App.4th 1063, 1067.)
The statements made during the cell phones calls satisfy the first part of the hearsay test because they were out-of-court statements made by the callers to the officer answering the cell phone found in defendant’s travel trailer. As for the second part, defendant contends the callers’ statements were offered for the truth they implied -- that he sold drugs -- and he asserts this is enough to satisfy the second component of the hearsay test.
The courts are divided on the issue of whether an out-of-court statement offered to prove not the facts expressly stated, but the facts impliedly stated, is hearsay. People v. Nealy (1991) 228 Cal.App.3d 447 at page 451 (Nealy) and People v. Ventura (1991) 1 Cal.App.4th 1515 at page 1519 (Ventura) concluded that statements made by callers during phone calls were nonhearsay because they were not offered for the truth asserted in the statements. The callers’ statements were instead offered as evidence that the defendants possessed the drugs for the purpose of sale. (Nealy, supra, at pp. 451-453; Ventura, supra, at p. 1519; see People v. Hale (1968) 262 Cal.App.2d 780, 788 [telephone conversations circumstantially established the premises as a place from which marijuana in commercial quantities was being sold, furnished, or distributed].)
Nealy and Ventura analogized the drug sales scenario to bookmaking cases. In the bookmaking context, the California Supreme Court held a magistrate “did not err in receiving evidence of the conversations on the telephone between the arresting officer and those who called the house to place bets.… [The conversations] were admitted for the purpose of proving the use to which the telephone was being used. The use of the room occupied by the defendant was in issue and the nature of the telephonic call was a circumstance to establish that fact.” (People v. Fischer (1957) 49 Cal.2d 442, 447.) Similarly, in People v. Carella (1961) 191 Cal.App.2d 115, the police raided an apartment where bookmaking was thought to occur. A police stenographer remained in the apartment and answered and recorded in shorthand approximately 45 phone calls from people placing bets, some of whom asked for the defendant by her nickname. At trial, the defendant argued that even if the conversations were admissible to show the use being made of the location, they were not admissible to show her participation. The appellate court rejected that argument and concluded the conversations were not hearsay because they were not admitted for the truth of their content. (Id. at pp. 139-140; see also People v. Klein (1945) 71 Cal.App.2d 588, 591-592 [one phone call placing a bet]; People v. Barnhart (1944) 66 Cal.App.2d 714, 721 [numerous calls placing bets, some asking for defendant by name]; People v. Reifenstuhl (1940) 37 Cal.App.2d 402, 405-406 [one call placing a bet].)
People v. Morgan (2005) 125 Cal.App.4th 935 (Morgan) rejected the analysis in Nealy and Ventura and concluded that a statement offered for the truth it implies is hearsay. (Id. at pp. 943-944.) Morgan believed that Nealy and Ventura “‘completely ignored the fact that the only relevant purpose for admitting the statement was for the statement that could be inferred from the actual words spoken, and therefore the words were hearsay. Merely characterizing the evidence as circumstantial does not make the evidence admissible.’ [Citation.]” (Morgan, supra, at p. 943.) Morgan nevertheless concluded the hearsay statements were admissible because they were reliable. (Id. at p. 944.) To do so, the court created a judicial exception to the hearsay rule, noting that appellate courts have the authority “to create exceptions to the hearsay rule not found in the Evidence Code.” (Id. at p. 946.) The court explained: “The rationale for not treating an implied assertion as an assertion subject to the hearsay rule is that it is primarily conduct and not intended as an assertion. To the extent conduct (here a phone call) rather than simply words are involved, the implied assertion is more reliable. ‘A man does not lie to himself. Put otherwise, if in doing what he does a man has no intention of asserting the existence or non-existence of a fact, it would appear that the trustworthiness of evidence of his conduct is the same whether he is an egregious liar or a paragon of veracity. Accordingly, the lack of opportunity for cross-examination in relation to his veracity or lack of it, would seem to be of no substantial importance.’ [Citation.]” (Id. at p. 944.) “Because actions speak louder than words, the caller’s statements were more reliable than the usual hearsay statement.” (Ibid.)
Defendant urges us to accept the Morgan line of reasoning, but only to the extent that we deem the phone call statements to be hearsay. Defendant argues that Morgan was wrong to create a judicial exception to the hearsay rule that would make the statements admissible.
Morgan does not convince us that the Nealy line of cases is analytically wrong, necessitating a judicially created hearsay exception. Of course, we agree that hearsay evidence is not made admissible simply because it is circumstantial. But it is equally axiomatic that nonhearsay evidence is frequently relevant and admissible as circumstantial evidence. Here, sound doctrinal support exists for the view that the statements made by the callers were admitted for a nonhearsay purpose: “In drug-dealing cases, the fact that the accused receives telephone calls asking for drugs is admitted as circumstantial real evidence of intention -- just as lists of telephone numbers and amounts of money owed by various people (containing express assertions) are also routinely admitted in such cases .…” (Taylor, Two English Hearsay Heresies (2005) 9 Inter. J. Evid. & Proof, 110, 118.) “The evidence is no different … from evidence that police officers, observing the accused from a distance, saw him hand over packages to people in return for money, but were unable to hear any words that were spoken, or from the racing guides and betting slips.” (Ibid.) The relevance of “the telephone calls is not that particular statements were made, but rather ‘that customers seeking drugs existed.’ The fact that they sought drugs using language (there are, after all, few available alternatives) does not detract from the probative value and non-hearsay nature of the evidence that customers keep turning up. In fact, in most cases it will not be necessary, in order to show the accused's intention, to prove the precise words of the callers at all, merely that they existed, how many of them there were and the general nature of the requests they made.” (Ibid.) “In this respect, evidence of numbers of telephone calls and of their nature is also similar to evidence that a lot of people, some of whom might be drug addicts known to the police, were seen entering and shortly afterwards leaving particular premises, or that there is an unusual number of telephones or other equipment associated with drug dealers in the accused’s dwelling, or that the accused has contacted suppliers with great frequency. From such facts we can infer the state of mind of the accused, which is after all what is in question -- whether he intended to supply drugs or not.” (Id. at p. 119, fns. omitted.)
We conclude that the statements made during the phone calls were nonhearsay, offered not to prove that the callers wanted to buy “20’s,” but to show that defendant possessed drugs for the purpose of sale. As Nealy summarized: “[S]ubject to Evidence Code section 352, and appropriate editing, when a police officer participates in a telephone conversation where he is lawfully executing a search warrant and hears a third person offer to purchase a controlled substance, testimony thereon is not made inadmissible by the hearsay rule and may be received as circumstantial evidence tending to show the controlled substance seized at that location was possessed for purposes of sale.” (Nealy, supra, 228 Cal.App.3d at p. 452.)
And, although we agree with Nealy, we recognize that whether the evidence is viewed as nonhearsay or hearsay subject to an exception for reliable evidence -- the callers’ statements were “admissible over a hearsay objection.” (Morgan, supra, 125 Cal.App.4th at p. 946.) The trial court did not err by admitting the evidence.
III. Ineffective Assistance of Counsel
Defendant argues that he was denied his constitutional right to effective assistance of counsel because, despite defense counsel’s objecting to the third party phone calls as hearsay, defense counsel failed to object on Sixth Amendment grounds that defendant had a right to confront witnesses against him. Defendant’s claim has no merit.
Every criminal defendant is entitled to constitutionally adequate legal assistance. (People v. Frye (1998) 18 Cal.4th 894, 979.) To succeed on a claim of ineffective assistance, a defendant must show that “counsel’s representation was ‘deficient’ in that it ‘fell below an objective standard of reasonableness.’” (Ibid.; Strickland v. Washington (1984) 466 U.S. 668, 690.) There is, however, “a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy. [Citation.] Accordingly, a reviewing court will reverse a conviction on the ground of ineffective counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye, supra, at pp. 979-980.)
Additionally, “a defendant is required to show he or she was prejudiced by counsel’s deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, the result would have been more favorable to the defendant. [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 979; Strickland v. Washington, supra, 466 U.S. at pp. 691-692.)
Because we determined that the phone call statements constituted nonhearsay evidence, no confrontation clause concerns were raised by their admission. (Tennessee v. Street (1985) 471 U.S. 409, 414; Morgan, supra, 125 Cal.App.4th at p. 946.) The confrontation clause’s fundamental role in protecting the right of cross-examination was satisfied by the presence of the officer on the stand who answered the cell phone calls. (Tennessee v. Street, supra, at p. 414.) If defendant doubted that the statements from the phone calls were accurately recounted, he was free to cross-examine the officer. (Ibid.)
Furthermore, even if the callers’ statements were considered hearsay, the confrontation clause would not be implicated because the statements were nontestimonial. “The informal statement made in an unstructured setting does not resemble the police interrogation of concern in [Crawford v. Washington (2004) 541 U.S. 36]. [Citation.] The officer’s minimal responses to the caller[s] were not the ‘[i]nvolvement of government officers in the production of testimony with an eye toward trial [that] presents unique potential for prosecutorial abuse.’ [Citation.] That the statement[s were] made to a police officer, albeit unknowingly, does not make it per se testimonial. [Citations.]” (Morgan, supra, 125 Cal.App.4th at p. 947, fn. omitted.) In addition, the statements’ unintentional nature and similarity to nonassertive conduct “indicate the statements [were] not testimonial.” (Ibid.) The callers themselves initiated the conversations with the officer and believed they were talking to defendant.
In this respect, the caller’s statements in Morgan were less reliable, and potentially more testimonial, than those in the instant case because the Morgan caller knew he was speaking to a third party, not to the defendant.
Because the confrontation clause was not implicated by the admission of the callers’ statements, it was not error for defense counsel not to object on Sixth Amendment grounds. As defense counsel’s conduct did not fall below an objective standard of reasonableness, defendant’s argument that defense counsel was ineffective fails.
IV. Limitation of Evidence to Codefendant
Defendant argues that the trial court erred by not limiting to codefendant evidence of drugs seized from the house. Defendant further argues that this error was prejudicial to his case at trial and therefore the judgment against him must be reversed. We disagree.
Section 355 of the Evidence Code states: “When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” “‘“‘Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.]’”’” (People v. Richardson (2008) 43 Cal.4th 959, 1000-1001.) Relevant evidence is defined as 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.) The test for whether evidence is relevant is whether the evidence tends logically, naturally and by reasonable inference to establish material facts. (People v. Carter (2005) 36 Cal.4th 1114, 1166.) We review the trial court’s ruling under this section for an abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 701.)
It is well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error has caused a miscarriage of justice. (Evid. Code, §§ 353, subd. (b), 354; People v. Richardson, supra, 43 Cal.4th at p. 1001.) Defendant is incorrect that Chapman is the controlling test. When reviewing a case for the erroneous admission or exclusion of evidence, we find reversible error only when, after examining the entire case, including the evidence, we conclude that it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Richardson, supra, at p. 1001.)
Chapman v. California (1967) 386 U.S. 18.
Here, defendant requested a limiting instruction as to the evidence recovered from the house and the trial court refused to give the instruction. Assuming the court abused its discretion by failing to limit the evidence from the house to codefendant, it is not reasonably probable, given the weight of the evidence against defendant, that the outcome of the trial would have yielded a more favorable result. Inside defendant’s travel trailer, officers discovered approximately five and one-half grams of methamphetamine in various Tupperware-style containers. They also recovered two digital scales, a plastic zip bag containing more plastic zip bags, a small wooden scoop and cornstarch. Officers intercepted two phone calls to a cell phone found in defendant’s trailer next to his bed. The callers both said they wanted to buy “a 20.” Furthermore, we note the prosecution made no effort to connect the drugs found in the house with defendant. In fact, the prosecutor, in his closing argument linked the drugs found in the house only with codefendant.
In light of the overwhelming evidence against defendant and the prosecution’s carefully limited argument, we conclude any error by the trial court in failing to limit the evidence of the drugs in the house to codefendant was harmless.
V. Cumulative Error
Defendant contends the errors cumulatively had a prejudicial effect on the outcome of his trial. We found no error in parts I-III discussed above and we concluded any error in part IV was harmless. Accordingly, defendant’s contention that he prejudicially suffered from the cumulative effect of errors must fail.
VI. Presentence Time Credits Under Section 4019
Defendant argues that the trial court awarded him four days of credits for time already served, but failed to award an additional two days of conduct credits that defendant was statutorily entitled to receive. Defendant is incorrect.
Defendant specifically cites section 4019, subdivision (f) to demonstrate he should have received six days of credit for the four days he was in actual custody. Subdivision (f) reads: “It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”
The People respond that subdivision (e) of the same section prevents defendant from receiving the additional two days of conduct credit because he did not serve the minimum number of days required before he could begin accumulating conduct credits. Subdivision (e) says: “No deduction may be made under this section unless the person is committed for a period of six days or longer.”
In reply, defendant argues that these two subdivisions are in conflict with each other. We disagree.
Subdivisions (e) and (f) of section 4019 must be read within the contexts of the preceding subdivisions, which lay out how the credits are calculated. (People v. Shabazz (2006) 38 Cal.4th 55, 67.) Subdivisions (b) and (c) lay out the guidelines for earning conduct credits. Subdivision (b) requires in pertinent part: “[F]or each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.” Subdivision (c) requires: “For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.” Subdivision (f) summarizes and clarifies the intended result of this scheme: “a term of six days will be deemed to have been served for every four days spent in actual custody.”
Defendant is correct that conduct credits are calculated by dividing the number of days spent in actual custody by four, rounding to the lowest whole number and multiplying by two. (People v. Philpot, supra, 122 Cal.App.4th at p. 908.)
Subdivision (e) simply sets the minimum number of days (six) a defendant must serve in order to be eligible for conduct credits. The other subdivisions say nothing to detract from this requirement and they coexist without conflict -- the method of calculation and the date on which the calculation applies. The language is clear and there is no need for construction. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) Furthermore, defendant’s proposed construction renders subdivision (e) meaningless. (People v. Shabtay (2006) 138 Cal.App.4th 1184, 1190 [a statutory interpretation that renders related provisions nugatory must be avoided].)
Because defendant only served four days of actual presentence custody, he is not eligible for conduct credits under section 4019.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J. Cornell, J.