Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF008717 Louis P. Etcheverry, Judge.
Linda J. Zachritz, 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, Louis M. Vasquez, Lloyd G. Carter, and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Defendant Adelina Dominguez was convicted of possessing methamphetamine for sale, transporting methamphetamine, and possessing drug paraphernalia. In this appeal, she claims a police officer’s search of her purse, in which the methamphetamine was found, violated the Fourth Amendment. She also contends that the trial court improperly excluded a portion of her expert’s proffered testimony. We conclude that the search was proper and the evidentiary ruling was not an abuse of discretion. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
Dominguez was driving in McFarland one night in January 2008. Rita Hurst was her passenger. Kern County Sheriff’s Deputy James Jackson pulled behind her in a patrol car. Though Jackson did not turn on his siren or flashing lights, Dominguez pulled to the side of the road. Jackson stopped, got out, and spoke to Dominguez, asking why she stopped. Dominguez said it was because she did not want to be pulled over. Noticing that Dominguez was speaking quickly, Jackson asked her when she last used drugs. She said about three days before. Jackson asked whether Dominguez had any drugs, paraphernalia, or weapons on her. Dominguez said no and volunteered that Jackson could search her if he wished.
At about this time, Jackson’s partner, Deputy Joe Weiss, arrived in another patrol car. Jackson told Weiss that Dominguez had consented to a search of her person, so Weiss searched her. He found a glass smoking pipe inside a cigarette box in Dominguez’s pocket. The pipe had a black residue mark in it. Weiss arrested Dominguez and placed her in Jackson’s patrol car. Meanwhile, Jackson searched Hurst and Hurst’s purse. Finding nothing, he released Hurst.
Weiss took another purse from Dominguez’s car, carried it to Dominguez, and asked if it belonged to her. Dominguez said yes. Weiss searched the purse and found a compact in which there were two plastic bindles, one containing.42 grams of methamphetamine and one containing.71 grams of methamphetamine. The purse also contained 15 empty plastic sandwich bags, another plastic bag that was torn, fourteen $1 bills, six $5 bills, seven $10 bills, twelve $20 bills, and four $100 bills, a total of $754. It also contained a cell phone.
After hearing and waiving her Miranda rights, Dominguez admitted that all these items were hers and that she was a daily methamphetamine user. She said she had so much because she bought it in bulk to save money. She said the money in her purse was from items she had sold at a yard sale the day before and the sandwich bags were for packaging items to sell at the yard sale.
The district attorney charged Dominguez with transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)); possession of a controlled substance for sale (Health & Saf. Code, § 11378); simple possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and possession of drug paraphernalia (Health & Saf. Code, § 11364). For sentence-enhancement purposes, it was alleged that Dominguez had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and had one prior conviction of transportation of a controlled substance within the meaning of Health and Safety Code section 11370.2, subdivision (c).
Dominguez filed a motion to suppress evidence. She argued that the deputy stopped her without reasonable suspicion, that her arrest was not supported by probable cause, and that the warrantless search of her car was unjustified. The court denied the motion.
At trial, Dominguez conceded that the methamphetamine was hers. The parties focused on the issue of whether she possessed it for the purpose of sale. Deputy Sheriff Michael Booker, the prosecution’s expert, testified that a typical dose of methamphetamine is one-tenth of a gram, so Dominguez’s two bindles comprised about 11 doses. He opined that a person in possession of that quantity, as well as $754 in the denominations Dominguez had, 15 plastic sandwich bags, one torn plastic bag, a glass smoking pipe, and a cell phone, “would be a low level dealer of methamphetamine.”
John Jenks, the defense expert, testified that, while it would be reasonable to conclude that a person in possession of these things was a seller, it would also be reasonable to conclude the contrary, that the person possessed the drugs for personal use only. Further, in light of the other circumstances, he considered it more reasonable to conclude that the person possessed the drugs for personal use. He said the pipe would show the person was a smoker of the drug. A smoker uses larger quantities than a user who snorts or eats methamphetamine. The quantities,.42 and.71 grams, were indicative of personal use because neither is a quantity typically packaged for sale; probably both bindles had been partly used by the person possessing them. A smoker could use those two amounts on her own within a couple of hours. The cell phone showed nothing, since most people have cell phones, and there was no evidence in this instance of text messages or saved numbers from drug buyers. The sandwich bags could be used for packaging drugs, but if the facts included another explanation for their presence, such as use for packing items at a garage sale, the bags alone would not show an intent to sell. The $100 bills were not consistent with a street-level sales operation, though the smaller bills were.
Defense counsel proffered additional testimony by Jenks to rebut the contention that the cash in Dominguez’s purse was evidence of drug sales. Counsel proposed to have Jenks testify that he had reviewed a bank statement for Dominguez’s account and a check stub from a child support payment to Dominguez from a government agency. Jenks would then say these were indications that Dominguez had legitimate sources of money, supporting his opinion that the cash was not likely to be proceeds of drug sales.
The court ruled that Jenks could not give this testimony. It observed that the documents were hearsay and found that, standing on their own without foundation, they were not a proper type of evidence for an expert to rely on:
“I’m not going to participate in the illusion … that these items of evidence are not being considered for the truth of the matter. There [are] many areas where experts rely on … articles, peer review articles, professional articles that they articulate, and those articles are available for the opponent to cross-examine them with, and there are probation officer’s reports. Those items are usually brought into evidence under specific statutes. But in this situation, I’m not going to allow the bank statements or the child support thing unless you can lay a foundation and get them into evidence some way other than through—they are clearly hearsay and they are clearly being—the proposal to me is to have the expert consider those matters for the truth of the matter asserted, and I would deny that.”
Betty Caldwell testified that she bought a stove from Dominguez for $100 at a yard sale on a Saturday in 2008. The following Sunday, while Dominguez was helping to install the stove at Caldwell’s house, Dominguez asked Caldwell to sign a handwritten receipt stating that Caldwell bought the stove from Dominguez. Caldwell did so. Dominguez told her she needed something to prove she had had a yard sale.
The jury found Dominguez guilty of transportation of a controlled substance, possession of a controlled substance for sale, and possession of drug paraphernalia. Dominguez admitted the prior prison terms and prior possession-for-sale conviction. Later, at the sentencing hearing, the court found that one of the prior prison terms was not a valid basis for a sentence enhancement under Penal Code section 667.5, subdivision (b).
The court sentenced Dominguez to the upper term of four years for possession of a controlled substance for sale. It added a three-year enhancement under Health and Safety Code section 11370.2 for the prior possession-for-sale conviction, and a one-year enhancement under Penal Code section 667.5, subdivision (b), for the prior prison term, making a total sentence of eight years. It imposed the upper term and an enhancement for transportation of a controlled substance; these were stayed under Penal Code section 654. It imposed a 90-day concurrent term for possession of drug paraphernalia.
DISCUSSION
I. Motion to suppress
On appeal, Dominguez’s only argument about why evidence should have been suppressed is that the search of her purse contravened the Fourth Amendment as interpreted in Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710] (Gant). Dominguez did not make this argument in the trial court, but we will not treat it as waived, since Dominguez was sentenced on December 4, 2008 and Gant was decided on April 21, 2009. As we will explain, however, the search was proper under Gant.
In Gant, the Supreme Court reexamined the issue of when the Fourth Amendment permits police to search a car and containers in the car incident to an arrest, even though the suspect has already been removed from the car. It held that the search-incident-to-arrest exception to the warrant requirement does not authorize a vehicle search “after the arrestee has been secured and cannot access the interior of the vehicle.” A search is authorized despite the arrestee having been secured, however, “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Gant, supra, 129 S.Ct. at p. 1714.)
Here, the parties agree that Dominguez had been placed in the patrol car and could not access the interior of her car when her purse was seized and searched. The only question, therefore, is whether it was reasonable to believe that evidence of the offense of arrest might be found in her car.
We conclude that it was reasonable to believe this was true. At the time of arrest, the deputies found a used glass smoking pipe on Dominguez’s person and heard Dominguez say she had used drugs three days ago. We will assume, as Dominguez does, that the only offense of arrest was possession of drug paraphernalia. As Dominguez acknowledges, the elements of this offense include knowledge that the object in question can be used to consume a controlled substance unlawfully. (Judicial Council of California Criminal Jury Instructions (2009) (CALCRIM) No. 2410; CALJIC No. 16.040.) If a person is in possession of a glass smoking pipe with black residue in it, the same person’s possession, at the same time, of a smokable controlled substance would be relevant to showing that the person knew the pipe could be used to consume a controlled substance. The officer who finds the pipe in the person’s pocket can reasonably believe the person’s purse—which is inside the car from which the person has just been removed—might contain a controlled substance or additional paraphernalia. Therefore, it was reasonable for Deputy Weiss to believe Dominguez’s purse might contain evidence of the offense of arrest and to remove the purse from the car and search it.
We disagree with Dominguez’s contention that “whether the pipe qualifies as paraphernalia depends on the pipe itself, not some other evidence to be found in another location.” Many things besides a pipe itself, including objects innocent in themselves, could be relevant to its possessor’s knowledge that it can be used unlawfully to consume a controlled substance. Certainly a defendant’s simultaneous possession of a controlled substance has a powerful effect of removing doubts about the defendant’s knowledge of the purpose of an item of paraphernalia.
II. Expert testimony
Dominguez argues that Jenks should have been permitted to testify that financial documents he reviewed supported his opinion that Dominguez possessed the methamphetamine for personal use because they showed she had means of financial support other than drug dealing. We review the trial court’s decision to admit or exclude evidence for abuse of discretion. (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.)
Evidence Code section 801, subdivision (b), states that an expert witness’s opinion must be “[b]ased on matter … that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.…” According to Evidence Code section 803, the court “may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.”
Here, the court ruled that a bank statement and a check stub, if not authenticated, could not reasonably be relied on as the basis of an expert opinion. It was not their status as inadmissible hearsay that made them unreliable; some types of otherwise inadmissible hearsay may properly form the basis of an expert opinion. Rather, it was the absence of any basis, such as authentication by a custodian of business records, for believing the documents were what they purported to be. The court could, within the bounds of reason, conclude that, without this authentication, it would not be reasonable for an expert to rely on the documents to form an opinion about Dominguez’s financial status.
Dominguez argues that, even if Jenks could not properly reveal the contents of the two documents, the trial court should have “consider[ed] whether it could control Mr. Jenks’ direct examination to avoid details of the hearsay yet, permit … him to fully explain his opinion.” The court’s failure to consider this, Dominguez says, means its “decision was not based on an appropriate exercise of discretion because the court failed to engage in a complete evaluation required by law with respect to this issue.” This argument fails for two reasons. First, the argument has been waived. After the trial court ruled, Dominguez did not ask whether Jenks could testify on the point in a more limited or circumscribed way that would avoid the problem with which the court was concerned. The court cannot be faulted for failing to evaluate testimony that was not proffered. Second, the lack of reliability of the documents undermined the essence of the proposed testimony. The absence of authentication meant Jenks had no reasonable basis for any opinion about Dominguez’s financial status. Therefore, he could offer no admissible opinion on the subject, no matter how the court controlled his examination. The court did not abuse its discretion.
III. Penal Code section 4019 amendment
On January 25, 2010, after defendant was sentenced, an amendment to Penal Code section 4019 became effective. The amendment increased the amount of presentence conduct credit available to defendants who are not required to register as sex offenders and whose current and prior offenses do not include serious or violent felonies. In a standing order filed on February 11, 2010, we deemed raised the issue of whether the amendment applies retroactively to pending appeals in which the defendant was sentenced before the effective date. We have considered this issue and we conclude that the amendment does not apply retroactively for the reasons set forth in People v. Rodriguez (Mar. 1, 2010, F057533) ___ Cal.App.4th ___. Defendant in this case, therefore, is not entitled to additional credits under the amendment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J.Kane, J.