Opinion
E032031.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. NICOLE R. CROSBY, Defendant and Appellant.
Richard P. Siref, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster and Gary W. Brozio, Supervising Deputy Attorneys General.
A jury convicted defendant of transportation of more than 28.5 grams of marijuana and possession of marijuana for sale. (Health & Saf. Code, §§ 11359, 11360.) The court imposed three years on the possession count and three years on the transportation count, to be served concurrently. We affirm the judgment but order the abstract amended to correct a conceded error in recording the sentence.
I
FACTS
A. Prosecution Evidence
On April 13, 2001, Border Patrol Agent Coverstone was stationed at the I-15 checkpoint south of Temecula. About 2:00 p.m., a Ryder moving truck approached the checkpoint. Defendant was driving the truck, and her brother, Wayne Crosby, was riding in the passenger seat.
Defendant and Mr. Crosby were not acknowledging that Coverstone was there. They seemed rigid, looking straight ahead, which was not normal for people approaching the checkpoint. Usually, people would look at the officer.
Coverstone asked Mr. Crosby where they were coming from and where they were going. Only defendant responded; Mr. Crosby did not acknowledge Coverstones presence. Defendant said she was coming from San Diego and going to Chicago, Illinois. Coverstone noted she seemed to answer the questions rather quickly, as if the answers were rehearsed rather than casual. Defendant seemed nervous.
Coverstone referred defendant to a secondary inspection area off the highway. Border Patrol Agent Neal contacted the truck at the secondary inspection area. Neal asked defendant where she was going. Defendant said she was moving to Chicago from the San Diego area. She said she was getting a new job in Chicago. Defendant appeared nervous.
Defendant consented to a canine search of the truck. Border Patrol Agent Visconti conducted the search. The dog alerted to the outside of the truck and indicated the rear wall of the cab and front wall of the cargo area.
Visconti told defendant that the dog had alerted and that the dog was trained to determine the presence of marijuana, cocaine, heroin, methamphetamine and their derivatives, and concealed persons. Defendant showed no reaction. Visconti asked defendant and Mr. Crosby for consent to search the back of the truck. Defendant consented.
There was a lock on the rear of the truck. Visconti asked defendant if she had the keys. Defendant produced a key, and Visconti opened the rear and entered the truck.
The back of the truck contained a few items of furniture, spread out in a large area. There were one or two desks, two file cabinets, a mattress set, a sofa, several chairs, and nine cardboard boxes. There were no suitcases and no appliances. The contents consisted more of office equipment than home equipment and did not appear to Visconti to be the kinds of items a person would take when moving from one location to another. The items were "just thrown in there," not tied down, and not packed properly to sustain long travel without breaking.
Visconti entered the back of the truck and moved toward the front. He noticed a "pretty heavy" smell of what he believed was marijuana. He saw the nine cardboard boxes in a neat row at the front of the cargo area. He opened one and saw two packages wrapped in cellophane. He opened a package and found an "overwhelming" amount of marijuana. The packages were sealed so that the odor would not come out.
The nine boxes contained various numbers of packages of marijuana. The total weight of the packages in all nine boxes was about 366 pounds. The truck contained no other boxes.
Other evidence showed defendant had rented the truck in El Cajon about 5:00 p.m. on April 12, 2001. She was accompanied by another woman and two men, and she paid cash from her own purse. The truck was to be returned to Chicago on April 20, 2001.
When defendant was booked, she had $ 900 in her bra, consisting of nine $ 100 bills.
After discovering the marijuana, the Border Patrol turned the investigation over to the Riverside County Sheriffs Department. Deputy Waters responded. He made an inventory of the items in the back of the truck. In addition to the items mentioned ante, Waters found a hand dolly, a plastic hose roller with a hose attached, a plant, a vacuum, and some female clothing. Waters noted that the desks and file cabinets appeared to be office equipment rather than home equipment. He also noted that although there were a mattress and box springs, there was no bed frame.
Waters valued the marijuana found in the truck at $ 1,662,000 if it were sold on the street.
B. Defendants Testimony
Defendant testified she was helping a friend, Gilbert Carillo, move to Chicago when she was stopped at the checkpoint. She rented the truck because she had a license, and Carillo asked her to do that for him. Carillo supplied the money to rent the truck. Carillo was behind her, in another car, when she was stopped. By the time defendant had been pulled over, Carillo had been waved through the checkpoint.
Defendant testified she did not put anything in the back of the truck or open that part of the truck. Carillo took the truck and loaded it somewhere else out of defendants presence. Defendant and her brother put their personal luggage in the front cab portion of the truck after the back had been loaded. Defendant did not know what was in the back of the truck and had never seen the boxes containing the marijuana before. The $ 900 found in defendants bra was money Carillo had given her for gas.
Defendant denied telling Agent Neal she was moving to Chicago or that she had gotten a new job in Chicago. Rather, she stated, she told him she was helping someone move. She also denied she was nervous when she talked to the border patrol agents.
Defendant testified she had tried to contact Carillo after her arrest. She had been able to contact him once, about a week and a half after her arrest. After that, however, he had turned off his cell phone, and she had been unable to contact him.
II
DISCUSSION
A. Expert Testimony
In the Peoples case-in-chief, Deputy Waters testified that "blind mule" is a term used in the marijuana trade to describe "somebody that is not aware of what they are transporting." The prosecutor then asked Waters whether defendants actions were "consistent with someone you characterize as a blind mule, someone that does not know the stuff was in the back of the truck?" Defense counsel objected, "Calls for speculation." The court overruled the objection, and Waters answered that he would not characterize defendant as a blind mule.
In support of his opinion, Waters noted the officers who contacted defendant had said she was nervous during the detention. Defense counsel objected based on "lack of personal knowledge." The court overruled the objection.
The prosecutor also asked Waters what reaction he would expect if someone who was a blind mule had been told there might be a controlled substance in his or her vehicle. Defense counsel objected based on a "speculation." The court overruled the objection, and Waters answered that he would expect a surprised reaction and would expect the person to "cooperate with the agency and find where it might have came [sic] from."
After defendant testified, Deputy Waters testified in rebuttal that notwithstanding defendants testimony, he was still "convinced that she was not a blind mule." The fact that she did not say anything to disassociate herself from the truck when told the dog had alerted was inconsistent with her being a blind mule. The fact that she did not mention Carillo to the agents showed she was "attempting to conceal or protect" Carillo. Defense counsel did not object to this testimony.
B. Defendants Contentions on Appeal
Defendant contends Waterss testimony was inadmissible on two grounds. First, she contends the testimony was improper "profile" evidence. Second, she contends the testimony was improper as opinion testimony directed to the ultimate issue of guilt or innocence.
C. Waiver
The Attorney General contends defendant waived her contentions by failing to raise those grounds in the trial court as a basis for her objections to Waterss testimony. We agree.
Evidence Code section 353 provides in relevant part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [P] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ." The requirement that a party not only timely object but also "make clear the specific ground of the objection" means that, even if the party objects to evidence in the trial court on one or more grounds, he or she cannot seek reversal on appeal by arguing that the evidence was objectionable on a different ground or grounds. Thus, in People v. Visciotti (1992) 2 Cal.4th 1, 825 P.2d 388, the Supreme Court held that the defendant could not argue on appeal that certain of the prosecutors questions were objectionable because they amounted to testimony and exceeded the scope of direct examination where he had objected to the questions in the trial court on the grounds they were irrelevant and assumed facts not in evidence. (Id. at pp. 51-52.)
The requirement that a party articulate in the trial court the specific ground for an objection in order to preserve that objection for appeal was applied to the admission of law enforcement expert testimony in People v. Valdez (1997) 58 Cal.App.4th 494. A police expert testified, based on his knowledge of local gangs, that the participants in a shooting were members of or associated with gangs and that they acted for the benefit of, in association with, or at the direction of a street gang. On appeal, the defendant argued these subjects were ultimate issues of fact for the jury to decide, and it was error to permit expert opinion on them because the expert was, in essence, rendering an opinion concerning the defendants guilt.
The court noted that in the trial court the defendant had objected to the testimony on the grounds that the officer lacked personal knowledge and that the role each participant played was not the subject of proper gang expert testimony. The defendant also had argued it would be improper to allow an opinion about whether the officer thought the defendants were guilty of the gang enhancement and then let him enumerate the reasons why. The court concluded these objections were not sufficiently specific to preserve the argument the defendant made on appeal, that it was improper to allow expert opinion concerning gang membership. (People v. Valdez, supra, 58 Cal.App.4th 494, 505.)
Here, as our recitation, ante, shows, the only objections defense counsel asserted to Waterss testimony that defendant was not a blind mule were that the testimony was speculation and not based on personal knowledge. Those objections cannot fairly be construed to encompass the contentions defendant now makes, that the testimony was improper as profile evidence and as opinion testimony on the ultimate issue of guilt. Consequently, the current contentions were waived.
D. Admissibility of Waterss Testimony
Even if we did not conclude defendant waived the contentions on which her appeal is based, we would affirm the judgment because we also conclude Waterss testimony was admissible notwithstanding defendants contentions. The admission of expert opinion testimony is within the sound discretion of the trial court. (People v. Harvey (1991) 233 Cal. App. 3d 1206, 1227, 285 Cal. Rptr. 158.) We may not interfere with that discretion unless it is clearly abused. (People v. Valdez, supra, 58 Cal.App.4th 494, 506.) Applying that standard of review, we consider defendants arguments against admissibility.
1. Profile evidence
A drug courier profile has been defined as an informal compilation of characteristics often displayed by those trafficking in drugs. (People v. Martinez (1992) 10 Cal.App.4th 1001, 1006, fn. 2.) " . . . Drug courier profiles are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers. Generally, the admission of this evidence is nothing more than the introduction of the investigative techniques of law enforcement officers. Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officers in investigating criminal activity." (Id. at p. 1006, fn. omitted.)
In People v. Derello (1989) 211 Cal. App. 3d 414, 259 Cal. Rptr. 265, this court explained the difference between inadmissible drug profile evidence and evidence of the conduct of the defendant in a particular case which is legitimately indicative of guilt and hence admissible. Some elements of the profile "may be clearly indicative of an ongoing crime." These include using an alias on travel documents or taking an evasive or erratic path to an airport in a manner which demonstrates a desire to avoid detection. (Id. at p. 422.)
On the other hand, some elements of profile "identify personal characteristics of the suspect which may be shared in common by drug couriers and the public at large." These include "nervousness, destination of or arrival from a drug source city, arrival at a drug reception city, time of flight, position among the disembarking passengers, manner of dress, presence of large amount of apparently gold jewelry, youth. Almost all of these latter elements of the profile describe a cross-section of the people who use planes but without any indication of who of those in that cross-section are predominantly or even mainly engaged in any ongoing crimes." (People v. Derello, supra, 211 Cal. App. 3d 414, 422.)
Waterss testimony in this case is more properly categorized as evidence of "aspects of a suspects behavior which may be clearly indicative of an ongoing crime" (People v. Derello, supra, 211 Cal. App. 3d 414, 422) than as drug profile evidence. With the possible exception of defendants nervousness, the factors on which Waters relied in concluding defendant was not a blind mule were not factors which are common to "a cross-section of the people who [approach border checkpoints] but without any indication of who of those in that cross-section are predominantly or even mainly engaged in any ongoing crimes." (Ibid .) Waters did not cite defendants destination, manner of dress, jewelry, or youth as a basis for concluding she was a knowing drug transporter. Instead, he relied principally on the fact that when advised there might be contraband in the truck she expressed no surprise, did not indicate the contents of the truck were not hers or that she had no knowledge of its contents as she later claimed at trial, and made no effort to identify the actual owner of the contents.
The circumstances on which Waters relied were facts specific to this case which, based on his experience, arguably supported an inference defendant was aware of the truck contents and therefore was not a blind mule. They were not a collection of characteristics purportedly shared by drug couriers which "indicate no ongoing criminal activity but merely attempt to identify an individual as a type of person who may engage in a criminal enterprise based upon stereotype of drug courier appearance or behavior." (People v. Derello, supra, 211 Cal. App. 3d 414, 422.) Accordingly, Waterss testimony was not inadmissible profile evidence and the court did not abuse its discretion in permitting the testimony.
2. Expert opinion on guilt
Evidence Code section 801 provides in relevant part that "if a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [P] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." As a general matter, "a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.]" (People v. Torres (1995) 33 Cal.App.4th 37, 46.) "Opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (Id. at p. 47.)
Notwithstanding the somewhat categorical statement of the court in People v. Torres, supra, 33 Cal.App.4th 37 that an expert cannot opine on guilt or innocence, it is recognized that "[a] bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible." (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) Thus, the Supreme Court has stated: "There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved." (People v. Wilson (1944) 25 Cal.2d 341, 349, 153 P.2d 720.)
A review of relevant case law indicates that in fact there are a number of situations in which courts have permitted expert opinion testimony which, for all practical purposes, coincided with the ultimate issue of the defendants guilt. In People v. Clay (1964) 227 Cal. App. 2d 87, 38 Cal. Rptr. 431 (Clay), for example, the defendant and another man, Davis, were seen at the check stand of a market. The defendant asked the cashier for items which required the cashier to turn away to retrieve. Davis was seen with his hand coming out of the till. Later, money was discovered missing.
The court held it was proper to permit a police officer to testify, as an expert, about the modus operandi of the crime of "till tapping" and specifically that a hypothetical set of facts similar to those in Clay revealed the "usual procedure of till tappers." The court reasoned that the testimony "enabled the jury to see the possibility of a relationship between the acts of the two men. This gave meaning to the evidence and permitted the jury to appreciate that defendants activities while in themselves seemingly harmless, when considered with those of Davis, might well have been part of a cleverly planned and precisely executed scheme known as till tapping." (Clay , supra, 227 Cal. App. 2d at p. 93, 95.)
In People v. Hardy (1969) 271 Cal. App. 2d 322, 76 Cal. Rptr. 557, the defendant was involved in two incidents in which money was discovered missing from a business establishment after a proprietors attention had been diverted. A police officer testified as an expert, based on hypothetical facts similar to those involved in the two incidents, that in his opinion a till tap had taken place at the two establishments. The court held the testimony was properly admitted pursuant to Clay. (Hardy at pp. 327-328.)
In People v. DeWitt (1983) 142 Cal. App. 3d 146, 190 Cal. Rptr. 726, the two defendants were discovered in an area containing expensive homes, sitting in a stolen car which contained loaded firearms that had also been stolen and two pairs of gloves. One of the defendants was wearing a wig, cap, and sunglasses. A police expert testified at the preliminary hearing "that it was reasonable to conclude that two felons, one wearing a disguise and each possessing a loaded handgun, found skulking about an affluent residence while in possession of handcuffs and a change of clothing might well have agreed to and embarked upon the commission of a robbery." (Id. at p. 149, fn. omitted.) The court held the testimony "was both admissible and sufficient to support the finding of conspiracy to commit robbery" at the preliminary hearing. (Id. at p. 151.)
In People v. Harvey, supra, 233 Cal. App. 3d 1206, an officer was permitted to testify as an expert on cocaine trafficking that various activities in which the defendants had been seen to engage were drug related or consistent with the activities of drug trafficking. The officer also testified that one of the defendants "was a distributor/trafficker," and that two others "were cocaine dealers." (Id. at p. 1217.) The court held the testimony was proper, because "the subject matter was sufficiently beyond the common expertise of the trier of fact to render expert testimony not only helpful but necessary for an understanding of the meaning and import of various actions." (Id. at p. 1228.)
Finally, in People v. Singh (1995) 37 Cal.App.4th 1343, an expert was permitted to testify that numerous vehicle collisions in which one of the defendants was involved were "staged for the purposes of establishing property damage or personal injury insurance claims." (Id. at p. 1363.) The court held the testimony was proper, because it served "to explain the relationship between the various pieces of evidence" and was "based upon the integration" of various factors concerning the collisions. (Id. at p. 1380.)
The common thread running through these decisions is that even expert testimony that is tantamount to the expression of an opinion on the issue of guilt may be permissible if it is based on inferences which, to use the words of Evidence Code section 801, are "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." (Evid. Code, § 801, subd. (a).) Thus, a law enforcement officer, because of his experience in the investigation of certain types of crime, may perceive the significance of particular facts, and draw inferences from those facts, which would not be apparent to a person lacking that experience. In such a case, the officers opinion "would assist the trier of fact" (ibid.) and is properly admitted.
The question in this case is whether Waterss testimony met this standard for admissibility. On the one hand, it is certainly possible that even a person without law enforcement experience could infer that a defendant who remains silent when advised his or her vehicle may be carrying contraband probably knew the contraband was there. On the other hand, most lay jurors are unlikely to have had any direct experience dealing with the conduct of suspected transporters of contraband at border checkpoints. It is reasonable to suppose that the opinion of an experienced investigator, to the effect that in such a situation a true "blind mule" would be expected to express surprise, disassociate himself or herself from the vehicle contents, and identify their actual owner would be of assistance to the jury. That being the case, and given the extremely deferential standard of review, we cannot say the admission of the testimony was an abuse of discretion.
We would be remiss if we did not discuss People v. Killebrew, supra, 103 Cal.App.4th 644 (Killebrew), a case the Attorney General has commendably brought to our attention. In Killebrew, the court held it was improper for a police officer to testify "that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun." (Id. at p. 652, fn. omitted.) The court explained that the officer had "testified to the subjective knowledge and intent of each occupant in each vehicle," making his testimony "an improper opinion on the ultimate issue," which should have been excluded. (Id. at p. 658.)
At least at first glance, Killebrew appears to hold it is impermissible for an expert to give an opinion "that a specific individual had specific knowledge or possessed a specific intent." (Killebrew, supra, 103 Cal.App.4th at p. 658.) That proposition, if accurate, would preclude Waters in this case from testifying to the effect that defendant was not a blind mule, i.e., that she had knowledge the truck carried marijuana.
One answer, of course, is that if Killebrew indeed purported to preclude any opinion testimony relating to the issue of an individuals knowledge or intent, its holding was simply inconsistent with the cases discussed ante. For example, the court in Clay found expert opinion testimony was proper to assist the jury "in determining a factual issue, namely that of defendants intent at the time he diverted [the cashiers] attention." (Clay, supra, 227 Cal. App. 2d at p. 98.) Similarly, the court in People v. DeWitt, supra, 142 Cal. App. 3d 146 held it was permissible for an expert to testify that individuals in the defendants situation might have "agreed to" commit a robbery (id. at p. 149, fn. omitted), again a clear reference to the defendants intent. The court in People v. Singh, supra, 37 Cal.App.4th 1343 likewise found it proper for an expert to testify that the defendant staged auto accidents "for the purposes of establishing property damage or personal injury insurance claims" (id. at p. 1363), once again plainly permitting an opinion that the defendant harbored a particular intent. And it is common to allow expert testimony to establish that drugs possessed by the defendant were possessed for sale. (See, e.g., People v. Douglas (1987) 193 Cal. App. 3d 1691, 1694, 239 Cal. Rptr. 252.) It is difficult to see how such testimony can be viewed as anything other than an expert opinion that the defendant had a particular intent, i.e., that the drugs be sold.
In addition, in Killebrew the court noted the expert testimony "was the only evidence offered by the People to establish the elements of the crime." As such, it "did nothing more than inform the jury how [the expert] believed the case should be decided." (Killebrew, supra, 103 Cal.App.4th at p. 658.) Indeed, there was no evidence even placing the defendant in any of the cars involved in the crime, a fact which led the court not only to reverse the conviction but also to bar any retrial. (Id. at pp. 660— 661.)
Here, in contrast, the elements of the crimes, other than defendants knowledge of the trucks contents, were plainly established. There was no dispute she drove the truck or that it contained the marijuana. The remaining element, defendants knowledge, was supported by abundant circumstantial evidence apart from Waterss opinion. Defendant rented and paid for the truck and was going to drive it across the country, despite the fact it supposedly contained Carillos possessions and not hers. The truck contained female, not male, clothing. Defendant, not Carillo, had the keys to the back of the truck where the marijuana was found.
Defendants explanation as to why she was driving the truck, that Carillo did not have a drivers license, made no sense. She testified she let Carillo drive the truck to load it, and Carillo drove a car right behind defendant when she entered the checkpoint. Thus, she obviously did not care whether Carillo had a license.
Defendants and her brothers nervousness and failure to make eye contact also contributed to the conclusion she was aware what she was carrying, as did her false statement to Neal that she was moving to Chicago. All of these factors supported an inference defendant had something to hide, i.e., the fact she was transporting marijuana. Contrary to the situation in Killebrew, it is not realistic to view Waterss testimony as no more than a directive to decide the case in favor of the prosecution. Rather, the testimony merely stated a conclusion based on inferences which the jury was free to accept or reject.
In concluding there was no abuse of discretion in this case, we do not mean to imply that evidence of this kind may always be admitted, or that a court may admit it without careful scrutiny. Evidence that, in effect, an officer believes the defendant knew he or she carried contraband obviously presents a serious potential for prejudice, carrying as it does the imprimatur of one entrusted with the enforcement of the law.
On the other hand, there is an inverse relationship between the potential for prejudice and the strength of the argument against admissibility. That is, where the testimony is most likely to influence the jury, because the subject matter is most foreign to common experience, the argument for admissibility is strongest under Evidence Code section 801. In cases falling closer to the ambit of common experience, the argument for admissibility is not as strong, but neither is the potential for prejudice since the jury is less likely to defer to the officers opinion than to rely on its own inferences and conclusions. Juries are routinely instructed, as was the jury in this case, that they are not bound to accept the opinion of an expert.
Thus, although we are not prepared to say it would never be an abuse of discretion to admit the kind of testimony at issue here, we find no clear abuse in this case. Consequently, we have no basis on which to reverse the conviction.
E. Correction of Abstract
The court in imposing a concurrent term on the transportation count stated that that count was "not subject to additional punishment because of 654 of the Penal Code." However, neither the sentencing minute order nor the abstract of judgment reflected a stay of sentence on count 1 pursuant to section 654.
Defendant contends, and the Attorney General agrees, that in light of the courts statement the abstract should be amended to provide for a stay. The parties position is supported by case law to the effect that a stay pursuant to section 654 is appropriate where the defendant stands convicted of both possession and transportation of drugs based on the same conduct. (See, e.g., People v. Watterson (1991) 234 Cal. App. 3d 942, 947, fn. 14, 286 Cal. Rptr. 13.) We therefore will order the abstract amended.
III
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect a stay of the sentence on count 1 pursuant to Penal Code section 654 and to forward a copy of the
amended abstract to the Department of Corrections. In all other respects, we affirm the judgment.
We concur: RAMIREZ, P.J., and KING, J. --------------- Notes: Defendant also moved for a new trial on the ground that Waterss reliance on her postarrest silence as a basis for concluding she was not an innocent transporter violated Doyle v. Ohio (1976) 426 U.S. 610, 618 [96 S. Ct. 2240, 2244— 2245, 49 L. Ed. 2d 91]. Her new trial motion, like her objections at trial, did not assert the contentions she now makes on appeal.