Opinion
C079554
12-10-2018
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP ROMAY FLORES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM042601)
A jury found defendant Phillip Romay Flores guilty of possession of a firearm by a felon, possession of ammunition, misdemeanor possession of a controlled substance, and misdemeanor possession of a smoking device. In a bifurcated proceeding, the trial court found defendant suffered a prior prison term. The court sentenced defendant to four years in state prison.
On appeal, defendant contends the trial court erred when it (1) admitted the testimony of a police detective stating that people who possess controlled substances are also known to carry weapons, (2) ordered defendant to register as a narcotics offender, and (3) imposed but stayed, pursuant to Penal Code section 654, a concurrent three-year term on the possession of ammunition conviction. The People concede the latter two claims.
Finding defendant's first claim lacks merit, we will reject it. We will accept the People's concession as to defendant's second and third claims, modify the judgment accordingly, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Two detectives from the Butte County Sheriff's Department, Miah Basden and Silver Paley, were on patrol when they drove their unmarked car through an alley and noticed defendant standing in a parking lot behind an apartment complex. As Paley slowed the car and Basden opened his door, defendant ran into the apartment complex.
Detectives Basden and Paley got out of the car and walked to the front of the complex. As both detectives scanned the area, Paley saw movement in the laundry room and yelled, "He's inside the laundry room." Basden saw a face peeking out the laundry room window and yelled for the person to come out with their hands up. Both detectives heard the sound of a solid, hard object, something of substantial weight, being dropped inside the laundry room. Immediately thereafter, defendant emerged from the laundry room holding a milk carton.
As Detective Basden patted down defendant, Detective Paley searched the laundry room. The small room, which was open to the public, contained only a washer, a dryer, a hot water heater, and a trash can. Paley found no one inside. He found nothing in or around the appliances and heater and nothing on the floor. But when he looked inside the trash can, he found a .45-caliber semiautomatic handgun on top of a magazine containing seven unexpended rounds of ammunition. Paley took the gun outside and showed it to Basden.
Detective Basden detained and searched defendant and found two smoking devices and a clear baggy containing a substance later identified as methamphetamine. Defendant told Basden the smoking devices and methamphetamine belonged to him. Basden testified that the gun was submitted for fingerprint analysis but, as of the time of trial, the sheriff's department had not yet received the results of those tests. Basden determined that defendant did not live in the apartment complex and did not have any laundry in the laundry room.
Defendant was charged by complaint deemed an information with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)—count 1), possession of ammunition (Pen. Code, § 30305, subd. (a)(1)—count 2), misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377—count 3), and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)—count 4). The information alleged that, as to counts 1 and 2, defendant suffered a prior prison term. (Pen. Code, § 667.5, subd. (b).) The parties stipulated that the net weight of the methamphetamine found on defendant was 15.42 grams, and that defendant had a prior felony conviction that prohibited him from possessing firearms or ammunition.
Undesignated statutory references are to the Penal Code. --------
Defendant was tried by a jury and found guilty as charged. In a bifurcated proceeding, the trial court found true the prior prison term allegation.
The trial court denied defendant's application for probation and sentenced him to three years (the upper term) on count 1, plus a consecutive one-year term for the prior prison term enhancement, a concurrent three-year term (the upper term) on count 2 stayed pursuant to section 654, and concurrent one-year and six-month terms, respectively, on counts 3 and 4, for an aggregate sentence of four years in state prison. The court awarded defendant 244 days of presentence custody credit, imposed fees and fines, and ordered defendant to register as a narcotics offender pursuant to Health and Safety Code section 11590.
DISCUSSION
I
Admissibility of Detective Basden's Testimony
During Detective Basden's testimony at trial, the prosecutor asked, "And from your experience of investigations of all your controlled substances--." Defense counsel interrupted and asked to approach the bench. The following bench conference took place outside the hearing of the jury:
"THE COURT: State your objection.
"[DEFENSE COUNSEL]: Due process, confrontation. I don't know where this is going.
"THE COURT: Where are we going? Tell me what you're trying to do. It sounds like the People were trying to get the gentleman's rate into evidence. Where are you going with the subject?
"[THE PROSECUTOR]: If I could finish my question. The people -- based on experience, people that are involved with controlled substances are also known to carry weapons.
"[DEFENSE COUNSEL]: It's inadmissible character evidence.
"THE COURT: No, no, not character evidence. It's does the individual known [sic] he's prohibited? He can testify to that."
The examination resumed and the prosecutor asked Detective Basden, "Officer, based on your experience over 12 years, the people that are carrying controlled substances, are they also known to -- do you know people that also carry, possess weapons?" Basden answered, "Yes, I do," and explained: "Well, a lot of times when we locate subjects that are in possession or we do investigations into cases involving narcotics, they are going to be armed. More times th[a]n not they are armed. That is for protection. Could be defense as well as offense. But they typically will be armed, you know, so they aren't robbed for their product or if they want to rob somebody else for their product. It goes hand in hand." Defendant did not further object.
On appeal, defendant contends Detective Basden's testimony that people who possess controlled substances often possess weapons was inadmissible on the grounds that it was "irrelevant profiling/character evidence" that was more prejudicial than probative. (Evid. Code, §§ 350, 351, 352, 1101.) He further contends the trial court's admission of such evidence denied him his right to due process and a fair trial.
The People respond defendant has forfeited his claim by failing to specifically object at trial on the grounds of relevance, undue prejudice, or lack of foundation. Moreover, the trial court acted within its discretion to admit the evidence and, in any event, defendant has failed to demonstrate prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson).
It is fair to say that defendant's initial objection to the line of questioning that led ultimately to an opinion about gun possession and drug users was not a model of clarity, and did not provide the trial court with the insight that defendant now provides this court. The objection, "[d]ue process, confrontation," interposed before the prosecutor had finished her question and prior to a response, invoked a multiplicity of restrictions on state action but did not raise a concern with relevance (Evid. Code, §§ 350, 351) or undue prejudicial effect (Evid. Code, § 352), the points now raised on appeal. Additional clarity was provided when the prosecutor explained that her questioning would establish that "based on experience, people that are involved with controlled substances are also known to carry weapons," to which defendant objected on grounds of "inadmissible character evidence." Still, the trial court did not appear to understand and suggested such testimony might establish defendant's knowledge that gun possession was prohibited. The trial court overruled the objection and Detective Basden testified. Defense counsel made no further objection, nor did he cross-examine Basden on that point. Thereafter, the prosecutor made a brief reference to Basden's testimony in her closing argument, and noted it in passing in her closing rebuttal. Again defense counsel made no objection. We can only wonder how the trial court would have ruled had defendant presented it with the fully formed objection he presents to this court.
"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: [¶] (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." (Evid. Code, § 353.) There are reasons why objections must be clearly and precisely stated. " 'Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.' " (People v. Boyette (2002) 29 Cal.4th 381, 424.) " ' "[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." ' " (People v. Williams (2008) 43 Cal.4th 584, 620; accord, People v. Abel (2012) 53 Cal.4th 891, 924 [generally, failure to timely object in the trial court on the specific ground raised on appeal forfeits an appellate claim]; People v. Williams (1997) 16 Cal.4th 153, 206 [same].)
Apparently recognizing the shortcomings associated with the inadmissible character evidence objection, defendant claims for the first time on appeal that Detective Basden's testimony was inadmissible as "irrelevant 'profile evidence.' " However, as he properly acknowledges, " '[p]rofile evidence,' . . . is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative." (People v. Smith (2005) 35 Cal.4th 334, 357.) His failure to object on that specific ground at trial, coupled with his failure to object on grounds of relevance or undue prejudice as discussed above, forfeits the claim.
We also note that, unlike Detective Basden's testimony here, "[i]n profile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile." (People v. Prince (2007) 40 Cal.4th 1179, 1226.) Here, Basden made no mention of defendant, commenting only on Basden's own experience that people found in possession of drugs are often found to also be in possession of a weapon. As to defendant's claim that while Detective Basden may not have mentioned defendant, the prosecutor relied on Basden's testimony as profile evidence in her closing argument, the point was briefly mentioned, without objection, but the argument's principal thrust was that the "thud" heard by both detectives could only have come from defendant dropping the gun and ammunition into the garbage can, and that defendant was motivated to dispose of the gun and ammunition because he knew he was prohibited from possessing those items.
Finally, even assuming the challenged testimony was improperly admitted, the error was harmless. Detectives Paley and Basden both testified that, moments before defendant emerged from the laundry room, they heard the sound of a solid, hard object of substantial weight being dropped inside the room. Paley testified he searched the laundry room immediately after defendant emerged and found no one else who could have made the noise. Paley searched the entire room—behind, around, and inside the washer and dryer, around the hot water heater, and around the garbage can—and found nothing. He also searched the floor of the laundry room and not only found nothing that had fallen over or been dropped on the floor, but found nothing on the floor at all. When he searched inside the garbage can, however, he found the gun and the ammunition, both of which were on top of nothing more than lint, empty boxes of fabric softener, and general debris and, one could reasonably conclude, both of which could likely have made the sound heard by the detectives if dropped into the garbage can. Defendant presented no evidence regarding the issue.
The testimony defendant seeks to exclude pales in significance to the evidence of guilt. There was undisputed evidence from which the jury could reasonably have concluded defendant dropped the gun and ammunition into the garbage can before emerging. Because we find it is not reasonably probable defendant would have obtained a more favorable result in the absence of the challenged testimony, we conclude any error in admitting the testimony was harmless. (Watson, supra, 46 Cal.2d at p. 836.) This finding also addresses defendant's fallback claim of ineffective assistance. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington (1984) 466 U.S. 668, 687 .)
II
Improper Narcotics Offender Registration Requirement
Defendant contends, and the People concede, the trial court's order that defendant register as a narcotics offender pursuant to Health and Safety Code section 11590 was error. We accept the People's concession.
Defendant was convicted of violating Health and Safety Code section 11377, subdivision (a). Health and Safety Code section 11590, subdivision (c), exempts from the narcotics offender registration requirement persons who, like defendant, are convicted of a misdemeanor violation of Health and Safety Code section 11377. (People v. Chapman (1978) 21 Cal.3d 124, 126.) Therefore, we modify the judgment to strike the narcotics offender registration requirement.
III
Stay of Sentence on Count Two
Defendant also contends, and the People concede, the trial court erroneously imposed a concurrent sentence on count 2 after finding section 654 applied to that count. Again, we accept the People's concession.
At sentencing, the trial court found counts 1 and 2 were subject to section 654. Nonetheless, the court imposed a concurrent three-year term on count 2, stayed pursuant to section 654. This was error.
Section 654 prohibits multiple punishments for offenses arising from a single act or an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).) "[T]he purpose of section 654 'is to insure that a defendant's punishment will be commensurate with his culpability.' " (Latimer, at p. 1211.)
When section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions that implicate multiple punishments. (People v. Correa (2012) 54 Cal.4th 331, 337.) As relevant here, the imposition of concurrent sentences is precluded by section 654 because, under such a sentence, the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously. (People v. Duff (2010) 50 Cal.4th 787, 796.)
Here, defendant was charged with possession of the firearm found in the garbage can as well as possession of the ammunition found immediately underneath the firearm in the garbage can. While these facts differ slightly from those cases in which courts have found an indivisible course of conduct where the defendant is charged with possession of a firearm and possession of ammunition in that same firearm (People v. Lopez (2004) 119 Cal.App.4th 132, 138 ["Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment"]), the trial court here opined that "[t]he gun and ammunition were either combined, or so close in proximity as to constitute a loaded firearm" and found count 1 (possession of a firearm) and count 2 (possession of ammunition) were subject to section 654. Nonetheless, the court erroneously imposed a concurrent term on count 2. (People v. Duff, supra, 50 Cal.4th at p. 796.) Accordingly, we will stay execution of the sentence on count 2.
DISPOSITION
The judgment is modified to strike the narcotics offender registration requirement under Health and Safety Code section 11590. The judgment is further modified to stay execution of the three-year term imposed on count 2. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and provide an amended abstract to the Department of Corrections and Rehabilitation.
RAYE, P. J. We concur: ROBIE, J. MAURO, J.