Opinion
G036686
6-1-2007
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH CONNORS, Defendant and Appellant.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, Gil Gonzalez and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Thomas Joseph Connors was convicted of possession for sale of methamphetamine and marijuana. He admitted two prior strikes (Pen. Code, §§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)), three prior felony convictions (Health & Saf. Code, § 11370.2, subd. (a)), and three prior prison terms (Pen. Code, § 667.5, subd. (b)). He appeals claiming the court erred by failing to conduct an in camera hearing to determine whether the identity of a confidential informant should have been disclosed. He also asserts he did not receive all the custody credits to which he was entitled, CALJIC No. 2.01 as to circumstantial evidence should have been given, and he had a right to a jury trial on whether the upper term on one count should be imposed.
After the original briefs were filed, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), which held that imposition of an upper term under Californias sentencing law generally violated a defendants constitutional rights. (Id. at p. ___ [127 S.Ct. 856, 860].) We allowed the parties to file supplemental briefs on this issue. Defendants prior convictions and parole status at the time he committed the crime were factors that need not have been determined by a jury and support an upper term sentence.
We modify the abstract of judgment to correctly reflect defendants actual and good conduct credits, but otherwise affirm the judgment.
FACTS
Based in part on evidence that a woman named Gina Collura had sold heroin to a confidential informant, police obtained a search warrant for a Stanton residence. Before serving the warrant Detective Matthew Morton drove past the residence several times and saw a truck registered to defendant in the driveway. On the day the warrant was served, Morton and other officers saw defendant and Cynthia Sharp, who they thought was Collura, leave the house; Sharp drove away in the truck and defendant left on a motorcycle. Both were stopped by police shortly thereafter. Defendant had over $9,700 in cash in his pocket.
The key to the residence was on the same key ring as the key to defendants truck. After entering the house officers used another key on the same key ring to unlock the deadbolt lock in the master bedroom door, which had a security camera mounted above it. The clothing in the bedroom closet belonged to a male. There was womens clothing in an overnight bag in the bedroom; the bag also contained prescription bottles containing Sharps name.
A desk in the bedroom contained a drivers license bearing defendants picture but a different name. In the closet police found a box containing defendants personal papers plus other boxes holding several bags containing over 200 grams of methamphetamine; defendants fingerprint was on one bag. In the closet officers additionally found a briefcase containing separate packages of marijuana, totaling 67.2 grams, and some marijuana paraphernalia.
There was also a safe in the closet. Inside it, police found more marijuana, checks in defendants name although showing a different address, a cell phone, and a digital scale. Plastic sandwich style bags and smaller bags were in a nightstand drawer.
Three boxes of defendants documents and personal property were found in the garage. "Indicia" of Colluras relationship to the residence were in another bedroom.
Additional facts are recited in the discussion.
DISCUSSION
1. Disclosure of Confidential Informant
Defendant contends the court erred when it denied his motion to disclose the identity of a confidential informant who supplied probable cause for the search warrant for the residence.
In obtaining the warrant, Detective Morton signed an affidavit in which he stated that a confidential informant told him that he or she knew Collura was selling heroin from the residence in Stanton. According to the affidavit, the informant subsequently made a controlled purchase of heroin from Collura. The affidavit did not mention defendant.
In support of the motion to disclose defendant argued the informant could testify he or she never saw defendant at the residence or purchased drugs from him, and that he or she had also purchased methamphetamine from Collura. From this, he concluded, the informant could provide information that defendant did not reside at the house and "had nothing to do with possessing drugs for sale or selling out of that location."
The court denied the motion, refusing to conduct an in camera hearing, finding defendant had not met his burden. It noted that the informant was not a participant in or an eyewitness to defendants conduct leading to his arrest, and the controlled purchase by the informant was a separate occurrence, having "nothing to do with" defendant.
To compel disclosure of the identity of a confidential informant, defendant has the burden to show that, "`"in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial." [Citations.] That burden is discharged . . . when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendants exoneration. [Citation.]" (People v. Borunda (1974) 11 Cal.3d 523, 527, italics omitted; see also People v. Austin (1994) 23 Cal.App.4th 1596, 1610, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 864-865.) "The existence of a `reasonable possibility an informant could provide exonerating evidence must be determined on a case-by-case basis. [Citation.] Whether the informant could provide such evidence is always somewhat speculative. [Citation.] Where the informant is neither a participant nor an eyewitness to the charged offense the possibility is even more speculative, although still viable. [Citations.]" (People v. Austin, supra, 23 Cal.App.4th at p. 1610.)
"It is incumbent on the defendant to make a prima facie showing for disclosure before an in camera hearing is appropriate. [Citation.]" (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152.) Mere speculation about evidence an informant might have is insufficient to meet defendants burden. (People v. Luera (2001) 86 Cal.App.4th 513, 526.)
Defendant did not meet his burden. He again emphasizes that the informant could testify he was not involved in the controlled purchase. Defendant points to the prosecutions closing argument that he lived in the residence, that he and Collura were selling the drugs together, and that the house "was a sales nest." He also claims this argument "made [defendant] criminally liable for Colluras [prior] conduct" and "negated" "Sharps testimony to the contrary."
Sharp testified defendant did not live at the house; rather, Collura and her boyfriend resided there, occupying the master bedroom. She also testified that Collura had borrowed defendants truck to move things to the house. Boxes of his possessions were in the truck. To make more room for Collura, Sharp moved defendants boxes from the truck into the house, putting defendants "important papers" in Colluras closet in the master bedroom. Collura also put defendants checks in the safe in the closet.
Defendants claims do not persuade. First, the prosecutions arguments did not seek to make defendant liable for Colluras sale to the informant. Defendant was prosecuted for possession for sale, not selling narcotics. Second, the court did not deny the motion to disclose on the basis of a prosecution argument "that there would be no reference" to the controlled sale to the informant.
Most importantly, defendant has not presented a reasonable possibility that evidence supplied by the informants could exonerate him. Merely because Collura, not defendant, was the seller at the time of the controlled buy would not demonstrate defendant did not possess the drugs when he was arrested, which was the relevant issue. Likewise, that defendant was not present at the time the informant bought the drugs from Collura does not corroborate defendants claim.
The evidence of defendants dominion and control of the drugs was substantial, including that keys to the house and the locked master bedroom were found on the key ring containing the key to defendants truck, and a falsified license with defendants picture but a different name was in a desk in that bedroom. Defendants possessions, including personal papers and checks, were in the closet and a locked safe within the closet in the bedroom. "The overwhelming evidence pointing to defendants possession of the [narcotics] would not be diminished by showing that someone else possessed them jointly with him." (People v. Kilpatrick (1973) 31 Cal.App.3d 431, 438.)
People v. Lizarraga (1990) 219 Cal.App.3d 476 is instructive. There police obtained a search warrant based on information from three informants that they had purchased heroin from a man named Javier. The defendant and her children, not Javier, were in the house when the warrant was executed. Police found documents belonging to the defendant, as well as womens lingerie and substantial amounts of heroin and cocaine, in a dresser in the bedroom where police had found the defendant and in the garage next to the defendants papers. At trial the defendant proffered evidence the police did not know she lived at the house and had never seen her there.
The court held that the defendant was not entitled to disclosure of the informants identities because "at best [the defendant] has demonstrated that the informants could testify it was a Latin male and not [the defendant] who sold them drugs." (People v. Lizarraga, supra, 219 Cal.App.3d at p. 483.) But that made no difference because no one ever claimed she had been the seller. "[E]ven if the informants identified [the defendants] boyfriend . . . as the person who sold them drugs, that would not show the drugs found . . . belonged exclusively to [the boyfriend] . . . ." (Ibid.) Such is the case here.
"[W]here the charge of constructive possession is based on the location of narcotics discovered pursuant to a valid search warrant, and upon the immediate contemporaneous personal observations of the arresting officers, the unnamed informant who furnished information relative only to the probable cause is not a material witness on the issue of guilt." (People v. Hardeman (1982) 137 Cal.App.3d 823, 831.) "Where the facts show that an arrest is made on the basis of direct police observation and discovery of contraband without the immediate and direct participation or observation of the informant, no reasonable possibility which is based upon more than utter speculation can be found that the informant could provide relevant testimony to the issue of the arrestees guilt or innocence of the offense allegedly committed." (Id. at p. 832.)
None of the cases on which defendant relies is persuasive. In all but one the informants information referred to the defendant by name or description, not the case here. (People v. Borunda, supra, 11 Cal.3d at pp. 525-526 [informant told officer he had purchased heroin from man with the defendants first name at specified residence; heroin found when police searched residence]; People v. Lee (1985) 164 Cal.App.3d 830, 837-838 [search warrant obtained based on informants purchase of narcotics from woman with same first name as the defendant and informants observation of woman being a "steady and consistent dealer of PCP," selling it from her residence on at least 15 different occasions]; People v. Borunda (1976) 58 Cal.App.3d 368, 371 [informant told police the defendant was dealing heroin and had said he was waiting for large delivery of drug]; People v. Long (1974) 42 Cal.App.3d 751, 753, 755 [informant told police heroin being sold from specified residence by male Negro, which described the defendant and where defendant arrested]; People v. Lamb (1972) 24 Cal.App.3d 378, 382 [informant told police man with the defendants last name but a different first name had sold heroin from specified residence, which was the defendants last address]. Here, the warrant was not based on defendants prior activity and the informant gave no information about defendant. As to People v. Garcia (1967) 67 Cal.2d 830, the defendant met his burden to show a reasonable possibility the informant could provide evidence as to guilt, contrary to defendant here.
There was no "reasonable possibility that the unidentified informant[] could establish that defendants degree of dominion over the contraband found in the [residence] was insufficient to support the verdict and judgment . . . for possession of [methamphetamine and marijuana] for sale." (People v. Green (1981) 117 Cal.App.3d 199, 208.) "The guilt of . . . defendant was established by evidence totally independent of the informer." (People v. Thomas (1975) 45 Cal.App.3d 749, 755.) The trial court properly denied the motion.
2. Jury Instruction
Defendant maintains the court erred by giving CALJIC No. 2.02 instead of sua sponte giving CALJIC No. 2.01 dealing generally with circumstantial evidence. Specifically, he contends that No. 2.02 referred only to circumstantial evidence about intent, leaving the jury with the understanding that circumstantial evidence principles did not apply to constructive possession. He also asserts the error was prejudicial, requiring dismissal. While the prosecution does not explicitly agree the court erred, its argument is limited to a harmless error analysis. We interpret this as a concession, but agree the error does not warrant reversal.
Failure to give CALJIC No. 2.01 is analyzed under a harmless error standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) That is, a conviction will be reversed "`only if, "after an examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred [citation]. [Citation]." (People v. Lasko (2000) 23 Cal.4th 101, 111.)
CALJIC No. 2.01 provides that circumstantial evidence is sufficient to support a guilty verdict only where the circumstances are "consistent with the theory that the defendant is guilty of the crime" and "cannot be reconciled with any other rational conclusion. [¶] . . . [¶] [I]f the circumstantial evidence . . . permits two reasonable interpretations, one of which points to the defendants guilt and the other to . . . innocence, [the jury] must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to . . . guilt." CALJIC No. 2.02 is essentially the same as No. 2.01 except it recites the uses of and limitations on circumstantial evidence in the scope of proving specific intent.
It is not reasonably probable that had the jury been instructed with CALJIC No. 2.01 instead of No. 2.02 it would have found defendant not guilty. The evidence on which defendant relies is not a rational, believable explanation supporting any conclusion other than that defendant constructively possessed the narcotics for sale.
Sharps testimony that Collura occupied the master bedroom where the drugs were found was not credible. The only womens clothing in the bedroom was in an overnight bag that also contained prescription bottles bearing Sharps name. The bedroom closet contained mens clothing. Defendants belongings, including documents and personal checks, were found in the bedroom closet and in a safe inside the closet; documents belonging to defendant were also in the garage. A falsified drivers license bearing defendants picture was in a desk in the master bedroom. Defendants fingerprints were found on one of the bags of methamphetamine found in a bag inside the closet.
Defendant told police the keys to the house and the bedroom were his. He also admitted he "was staying" at the residence and admitted knowing "there was something illegal inside" it. Sharp told police she had been visiting defendant at the house. In addition, police had seen defendants truck parked in the driveway of the residence before serving the warrant.
Testimony of Sharp and defendants mother purporting to explain the $9,766 defendant possessed at the time he was stopped by police was also not believable. They stated defendants mother had given him about $2,000 at the end of March or beginning of April and another $10,000 in the first part of June. But, as the Attorney General points out, they did not explain why defendant would have had such a large amount of cash in his possession on June 23, the day of his arrest.
Finally, the jury was instructed as to the elements of possession of marijuana and methamphetamine for sale and that each element had to be proven beyond a reasonable doubt. Those instructions, in conjunction with CALJIC No. 2.02 and the overwhelming weight of the evidence in support of the conviction, show the failure to give CALJIC No. 2.01 was harmless error.
3. Cunningham
In sentencing defendant to the upper term on count 1, the court relied on his "extensive criminal history," including four prior felony convictions and four prison terms, and that he was on parole at the time of the offense. While conceding the prior convictions supported the upper term, defendant argues that, based on Cunningham, the court could not rely on his parole status because that fact was not found by a jury. He relies on general language in Cunningham that Californias determinate sentencing law violates a defendants Sixth and Fourteenth Amendment rights to a jury trial because the trial judge had the right to make factual findings about factors supporting sentence to an upper term. (Cunningham, supra, 549 U.S. ___, [127 S.Ct. 856, 860].)
We considered and rejected that argument in People v. Banks (2007) 149 Cal.App.4th 969 where, in sentencing defendant to the upper term, the trial court noted, among other things, that defendant "`ha[d] not been doing well on probation or parole." (Id. at p. 971.) We noted Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435], which acknowledged that a prior conviction could be used to increase a sentence without proving this factor to a jury beyond a reasonable doubt. (People v. Banks, supra, 149 Cal.App.4th at pp. 971-972.)
We concluded "a trial court may impose an upper term based on a defendants prior convictions and other recidivist-related factors such as `"`the nature and circumstances of his [or her] criminal conduct" [citation] without submitting those factors to a jury to be found by proof beyond a reasonable doubt." (People v. Banks, supra, 149 Cal.App.4th at p. 973.) Relying on California cases interpreting Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350], we held the exception based on prior convictions "`is not limited simply to the bare fact of a defendants prior conviction [citation], but applies to `matters involving the more broadly framed issue of "recidivism." [Citations.]" (People v. Banks, supra, 149 Cal.App.4th at p. 973.) Recidivism includes being arrested while on parole, as was the case here. Imposition of the upper term did not violate defendants constitutional rights to a jury trial.
4. Custody Credit
Defendant contends and the Attorney General agrees that defendant is entitled to 876 days of custody credit rather than the 874 he was given. This consists of 584 days of actual credit and 292 days of conduct credit. Therefore, we direct that the abstract of judgment be modified to reflect the correct number of days.
DISPOSITION
The superior court is directed to issue a corrected abstract of judgment that awards defendant 584 days of actual credit and 292 days of conduct credit and to serve the abstract on the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur:
SILLS, P. J.
FYBEL, J.