Opinion
G054714
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JAIME GUILEN FLORES, Defendant and Appellant.
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16HF1049) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert C. Gannon, Judge. Affirmed. Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Jaime Guilen Flores of possession of methamphetamine for sale (Health & Saf. Code, § 11378; all further unlabeled statutory references are to this code) and possession of controlled substance paraphernalia (§ 11364, subd. (a)). The jury also convicted Flores of simple possession of heroin (§ 11350, subd. (a)), rejecting the opinion testimony of a narcotics investigator that Flores possessed it for sale. The trial court sentenced Flores to 276 days in jail and five years of formal supervised probation.
Flores contends the trial court erred by allowing the prosecution's expert witness to opine he possessed the methamphetamine for sale. Flores also argues that if his trial attorney's objections failed to preserve that argument, his attorney's performance was constitutionally deficient. But as our Supreme Court has explained, "[I]t is settled that an officer with experience in the narcotics field may give his opinion that the narcotics are held for purposes of sale . . . ." (People v. Hunt (1971) 4 Cal.3d 231, 237 (Hunt).) Consequently, the trial court properly admitted the testimony and trial counsel was not deficient in failing to make a futile objection. Also, as we explain further below, any conceivable or theoretical error was harmless. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In conducting a search of Flores's bedroom, Orange County Sheriff's Deputy Robert Blackburn found a baggy containing 3.643 grams of methamphetamine on a bookshelf. Blackburn testified the methamphetamine was wrapped in an elongated fashion to facilitate hand-to-hand sales transactions. He explained to the jury that a typical methamphetamine user will consume about one-tenth of a gram of methamphetamine, which will generally deliver a high for 12-to-24-hours. Blackburn also found a container filled with about 50 unused plastic baggies, a modified soda can that he believed had been used to store and hide narcotics, a large mirror with methamphetamine residue on it, and eight cell phones. Inside the dresser, Blackburn located a small leather book containing contact names and phone numbers, and a methamphetamine pipe with methamphetamine residue in it. A straw on the desk contained 150 milligrams of methamphetamine. Blackburn also found on the desk a beer bottle that had been converted into a device to smoke methamphetamine; the bottle contained methamphetamine residue. Blackburn further discovered two bindles of heroin inside a decorative ceramic rooster.
Blackburn, an experienced narcotics investigator, testified that possession of these items was, in his opinion, inconsistent with possession for personal use. Based upon the large quantity of drugs and how they were packaged, the drug paraphernalia, the hidden scale, the large mirror, baggies, cell phones and the leather contact book, Blackburn opined that Flores possessed the methamphetamine and heroin for sale.
DISCUSSION
Flores contends the trial court erred by allowing Blackburn to render an opinion on his (Flores's) state of mind—specifically, on whether he possessed methamphetamine for sale or personal use. He asserts that admission of the allegedly improper opinion testimony made his trial fundamentally unfair, violating due process. Flores also argues that if his trial attorney's objection to the expert's testimony on grounds it was speculative and lacked foundation failed to preserve his appellate claim that the testimony constituted an improper expert opinion, his trial attorney rendered ineffective assistance of counsel (IAC) for failure to object on that ground. None of these contentions merit reversal.
"'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness [citation] and to give testimony in the form of an opinion [citation]. Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."'" (People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang); Evid. Code, §§ 720, 801.) The evidence is admissible even though it encompasses the ultimate issue in the case. (Evid. Code, § 805; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.)
But "[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres (1995) 33 Cal.App.4th 37, 45.) Nor may an expert simply opine the defendant has committed a crime. (Id. at p. 47.) Stated differently, "A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, 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.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 (Coffman and Marlow).
"As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused." (People v. Page (1991) 2 Cal.App.4th 161, 187.)
As noted, Hunt held as settled law that an experienced narcotics officer may give his or her opinion that a defendant possesses illegal drugs for sale and not just for personal use. (Hunt, supra, 4 Cal.3d at p. 237.) Hunt explained a qualified expert properly could offer such an opinion based "upon matters such as quantity, packaging, and the normal use of an individual" (ibid.) because he or she "is experienced with the habits of both those who possess for their own use and those who possess for sale . . . ." (Ibid.) Cases after Hunt have routinely recognized the validity of such testimony to support a judgment. (See, e.g., People v. Newman (1971) 5 Cal.3d 48, 53 (Newman), disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; People v. Peck (1996) 52 Cal.App.4th 351, 357; People v. Carter (1997) 55 Cal.App.4th 1376, 1377-1378 (Carter); People v. Parra (1999) 70 Cal.App.4th 222, 227.)
Flores does not address Hunt directly, but instead distinguishes Newman and subsequent cases on grounds they addressed challenges to "the sufficiency of the evidence, not the admissibility of the officer's expert opinion." Challenging the admissibility of the officer's testimony here, Flores relies primarily on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) and, in his reply brief, on People v. Arguello (1966) 244 Cal.App.2d 413 (Arguello). These cases do not persuade us the trial court abused its discretion in admitting the testimony.
Killebrew did not involve illegal narcotics, but rather a gang expert's testimony concerning a gang member's asserted knowledge that members of his gang possessed a gun in a car passing near where he was standing; alternatively, the defendant may have been traveling in a separate car. (Killebrew, supra, 103 Cal.App.4th at p. 648-649.) The jury convicted the defendant of conspiring to possess the handgun as a participant in a criminal street gang. (Id. at p. 647.) At trial, an officer testifying as a gang expert stated 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.) The officer's testimony "was the only evidence offered by the People to establish the elements of the crime." (Id. at p. 658.) Under these circumstances, the reviewing court found that the officer's testimony did nothing more than inform the jury how the expert "believed the case should be decided." (Ibid., disapproved on another ground in Vang, supra, 52 Cal.App.4th at pp. 1045, 1047-1048 [disapproving suggestion in Killebrew that hypothetical questions put to an expert may not closely track the facts of the case].)
Here, Flores relies on Killebrew for the proposition that an expert witness may not provide testimony about a specific defendant's knowledge or intent. But "Killebrew does not generally prohibit such testimony; rather, the [Killebrew] court concluded that in view of the facts and circumstances of that case, the expert's opinion about the defendant's subjective knowledge and intent was inadmissible." (People v. Roberts (2010) 184 Cal.App.4th 1149, 1194.) As the Supreme Court in Vang explained, "[I]n some circumstances, expert testimony regarding the specific defendants might be proper." (Vang, supra, 52 Cal.4th at p. 1048, fn. 4.)
Flores relies on Arguello for the proposition that a witness, though qualified as an expert in the use and trade of illegal narcotics, cannot offer his opinion on whether the defendant possessed them for sale. (Citing Arguello, supra, 244 Cal.App.2d at pp. 420-421.) Arguello, decided in 1966, predated Hunt and Newman by five years, and on that ground has been criticized as "no longer good law, because it has been overruled on this point sub silentio by our Supreme Court . . . ." (Carter, supra, 55 Cal.App.4th at p. 1377.) But even if Arguello has not been expressly overruled, Flores's reliance is misplaced because it does not establish the categorical bar he asserts.
Instead, the Arguello court simply observed, "Speaking generally, it appears to us that in most cases of this nature it would be unnecessary to ask the expert the 'ultimate' question, namely whether in his opinion the particular narcotics were held for sale." (Arguello, supra, 244 Cal.App.2d at p. 421, italics added.) Arguello noted that once the expert has provided the basis for his or her opinion, "the jury should be as able as the witness to form an opinion whether or not the narcotics involved in the prosecution were held for sale. It has received all the help which it needs." (Ibid.) Arguello did not consider whether the trial court abused its discretion in admitting the expert's opinion there, but instead simply concluded any error was nonprejudicial. (Ibid.)
Since Arguello, the Supreme Court has observed many times that an expert's testimony may embrace the ultimate issues in a case. (E.g., Vang, supra, 52 Cal.4th at p. 1048; Coffman and Marlow, supra, 34 Cal.4th at p. 77.) In our view, the touchstone for the admissibility of expert testimony is whether it may be helpful to the jury. "In determining the admissibility of expert testimony, 'the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury.' [Citations.]" (People v. Lindberg (2008) 45 Cal.4th 1, 45 (Lindberg).)
Thus, "an expert may testify on a subject about which jurors are not completely ignorant." (Lindberg, supra, 45 Cal.4th at p. 45.) That principle applies here where the expert educated the jury on various aspects of the illicit drug trade before expressing his opinion that Flores possessed the methamphetamine for sale. Unlike the gang expert's bare, conclusory opinion in Killebrew, Blackburn highlighted for the jury details in the evidence that a lay person may or may not have recognized as supporting a finding of intent to sell methamphetamine. For example, Blackburn explained the size of the mirror found in Flores's room, with "remnant methamphetamine found all over [it]," supported his possession for sale opinion because it indicated the person using it handled quantities larger than those for personal use. He testified, "That's usually how that works. [¶ In contrast, i]f you are going to weigh one-tenth of a gram, which is a normal personal use ingestion, you would have something equivalent to what a female uses to put her makeup on in the car."
Blackburn similarly explained the scale hidden in Flores's room could point to sales activity by suggesting a concern to evade a felony conviction, "which would be sales and not possession." He also noted that the "50 clean baggies" (italics added) in Flores's room indicated a sales operation, particularly in conjunction with "the way that [the filled baggies were] packaged" in a manner "ready for a hand-to-hand transaction." Blackburn also explained the evidentiary significance of possessing multiple cell phones plus a contact book. He stated "in today's technological age," the presence of a physical contact book when "most people keep all their contacts on their phones" further caused him to believe Flores was involved in sales activity.
In any event, the extensive foundation Blackburn presented for his opinion requires us to treat as harmless any possible error in the trial court's failure to exclude, sua sponte or otherwise, Blackburn's opinion that Flores "was in the business of selling illegal narcotics." Any error was harmless because, as Hunt explained long ago, quoting Justice Mosk in an earlier opinion, "'"The chief value of an expert's testimony . . . rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion . . . it does not lie in his mere expression of conclusion."'" (Hunt, supra, 4 Cal.3d at p. 237.) We perceive no danger, as was the case in Killebrew, that the jury would simply credit testimony that was nothing more than the officer's unfounded opinion; to the contrary, ample evidence supported Blackburn's opinion and the jury's verdict.
Flores's related due process and IAC claims for reversal are similarly without merit. Even assuming for the sake of argument error in the admission of Blackburn's opinion statements, the "'erroneous admission of evidence does not offend due process unless it is so prejudicial as to render the proceeding fundamentally unfair.'" (People v. Covarrubias (2011) 202 Cal.App.4th 1, 20.) "'"The dispositive issue is . . . whether the trial court committed an error which rendered the trial 'so "arbitrary and fundamentally unfair" that it violated federal due process.'"'" (Ibid.) There was no such error here.
The trial court instructed the jury regarding its use of expert witness testimony, specifying, "You must consider the opinions, but you are not required to accept them as true or correct." (CALCRIM No. 332.) The court also directed the jury to weigh "the reasons the expert gave for any opinion." (Ibid.) These instructions counteracted the due process concern Flores expresses on appeal that Blackburn's opinion could "'give the jury the impression that the issue has been decided and need not be the subject of deliberation.'" We presume the jury "'meticulously followed the instructions given.'" (People v. Cruz (2001) 93 Cal.App.4th 69, 73.) In fact, the jury's verdict rejecting Blackburn's opinion that Flores also possessed the two bindles of heroin for sale demonstrated the jury's independence.
Finally, Flores's IAC claim fails because an objection that would have been meritless or futile in affecting the trial outcome "cannot be the basis of an ineffective assistance of counsel claim." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1170.) We, therefore, need not resolve whether trial counsel should have made an objection to Blackburn's opinion testimony more specific than that it was allegedly speculative or lacked foundation. (See In re Crew (2011) 52 Cal.4th 126, 150 [IAC claims may be resolved on lack of prejudice alone].)
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.