Opinion
D075481
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL FRANDO, Defendant and Appellant.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN387246) APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed. Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Daniel Frando was stopped while driving by border patrol agents conducting a roving patrol (or highway interdiction). After obtaining Frando's consent to search his vehicle, the agents discovered two suitcases containing cocaine. Frando was convicted of transporting over 20 kilograms of cocaine and sentenced to 18 years in prison. Frando appeals, contending (1) the trial court erroneously denied his motion to suppress evidence obtained as a result of his unlawful detention by border patrol agents, (2) his conviction is unsupported by substantial evidence, (3) expert testimony was erroneously admitted despite lack of proper foundation, and (4) the prosecutor committed prejudicial misconduct by misstating the law and the facts and by introducing matters outside the evidence during closing arguments. We find no merit to Frando's contentions and affirm the judgment.
FACTS
Border Patrol Agent Oliver O. has patrolled the San Clemente station and immigration checkpoint for over seven years. His duties include inspecting that stretch of the I-5 freeway for behavior suggesting individuals are violating United States immigration laws or engaging in criminal activity. That stretch of freeway is known as a high-narcotics trafficking area, as it connects Mexico to the interior of the United States. While on roving patrol, Agent O. and his partner were in a marked border patrol vehicle parked just north of the checkpoint. His attention was drawn to Frando's vehicle because of the "nervous" behavior Frando displayed when he noticed the agents' marked vehicle. After he noticed the agents, Frando immediately placed his hands on the "ten and two" position of the steering wheel, with his arms "fully extended" and "stiffened." Frando's behavior was noteworthy because, in the officer's experience, it was similar to behavior he had witnessed in connection with previous narcotics arrests and drug seizures. The agents pulled their marked vehicle onto the freeway to further observe Frando. Frando slowed his speed, and as soon as the agents pulled behind him, he changed lanes in a manner the agent perceived to be unsafe, squeezing himself between two cars where there was very little room and forcing the vehicle behind him to brake. The agents moved behind Frando, who repeatedly checked his mirrors to observe the border patrol vehicle, causing his vehicle to drift between lanes. The agents conducted a vehicle records check which indicated the vehicle had not crossed the border that day and had not previously been stopped on suspicion of smuggling. Frando began to "shake" and "bob" his head and tap his fingers, while his hands remained at the "ten and two" position. The agent described this behavior as "noteworthy" because he had seen other detainees and suspects behaving similarly. Based on Frando's behavior, the agents decided to pull him over (about five miles north of the checkpoint).
Frando presented a California identification card and told the agents he was traveling from San Diego to Los Angeles to "show a friend a house," but he was unable to tell the agents where the house was or his friend's name. Frando consented to a search of his vehicle. The agents discovered two suitcases in the vehicle's trunk; inside the bags were 33 individually wrapped bundles containing a total net weight of approximately 33 kilograms of cocaine. Frando was arrested under suspicion of transporting cocaine for sale.
A criminalist with the San Diego Sheriff's Regional Crime Laboratory testified there were 33 bundles of cocaine; each bundle weighed roughly one kilogram, for a total of approximately 33 kilograms. A detective testified the cocaine had a street value of $1.3 to $2.6 million.
A detective on the border crime suppression team within the narcotics and gang division of the San Diego County Sheriff's Department interviewed Frando. Frando told the detective he was separated from his wife and living in his car. After being advised of his rights, Frando told the detective he had never driven drugs before. Frando said he had agreed to drive a woman to Los Angeles for his acquaintance Alex, who promised to give him $800 for the job. When the agent laughed—apparently expressing skepticism at the idea of getting paid $800 for driving someone—Frando acknowledged he "knew it wasn't, like, legit." Frando further stated, "I had no idea, I mean I knew there was something bad about those damn bags. Stupid, stupid, stupid." He then explained the events that unfolded. When he arrived to pick the woman up, he was directed to back into the garage. A woman was there with her child, and there was also a man with tattoos. They closed the garage door, loaded two bags into his trunk, and directed that one bag should be delivered to "address A," while the other bag should be delivered to "address C." They told him he would not get the actual address until after he passed the border patrol checkpoint. Frando said the woman was supposed to go with him and he did not know why that changed. After the detective told Frando he was transporting "almost a million dollars of drugs," Frando offered to cooperate with law enforcement by continuing the delivery so the agents could discover the destination location, stating, "I had no idea that that's what it is. I mean I thought it would just be, you know, I kind of knew, but I had no idea it was . . . shit." The detective advised Frando that cooperating in that manner was "too dangerous."
Frando also said that, two days prior to this incident, Alex asked if he knew someone that he could rent a garage from for $1,000.
The detective testified as an expert at trial, opining that the street value of 33 kilograms of cocaine ranged from $1.3 to $2.6 million. Based on his training and experience, he did not think a first-time drug courier would be given such an extensive amount of cocaine. To prevent the possibility of theft, a drug trafficking organization would typically vet an employee by providing the employee with smaller amounts of drugs or different tasks until the employee demonstrated his trustworthiness and reliability.
Frando testified in his own defense at trial. He acknowledged he thought it was "strange" to be paid $800 to drive a woman to Los Angeles but claimed he "wasn't under the impression that [he] was doing anything illegal." Alex was a friend of Frando's good friend Joel, and Alex had contacted Frando attempting to reach Joel. Because Joel was out of the country, Alex asked if Frando would drive a woman to Los Angeles. Frando agreed. When he arrived at a townhouse to pick the woman up, he was directed to back into the garage. He saw a little girl inside, and a woman and a man were there. They closed the garage and loaded a pair of bags into the trunk. He was told there was a change of plans, and he should call to receive the addresses to deliver the bags after he passed the border patrol checkpoint. He admitted he felt "uncomfortable," but felt perhaps a family needed his help to bring the bags to Los Angeles.
Frando claimed he told the agents he was going to Los Angeles to show a house because he had a restricted driver's license allowing him to drive only between home and work. He feared losing his car or his license for driving in violation of the restriction. After the agents searched his trunk, they told him he was being arrested for drug trafficking. He stated that he "should have known there was something wrong" with the job he was being asked to do but insisted he did not know there were 30 kilograms of cocaine in his car. However, on cross-examination, he admitted part of the reason he suspected "something was wrong" was because he knew that "Alex runs drugs to Joel," and Joel had told him he "engage[d] in these unsavory jobs, these driving jobs for Alex."
The jury convicted Frando of one count of transportation of a controlled substance, cocaine (Health & Saf. Code, § 11352, subd. (a)) and found true the allegations that the weight of the substance involved in the offense was 57 grams or more of a substance containing cocaine (Pen. Code, § 1203.073, subd. (b)(1)) and the substance containing cocaine exceeded 20 kilograms by weight (Health & Saf. Code, § 11370.4, subd. (a)(4)). The trial court sentenced him to a total term of 18 years, with eight years to be served in prison and 10 years suspended, to be served under supervised probation.
DISCUSSION
I.
Detention Based on Reasonable Suspicion
Frando contends his detention was unlawful because it was not supported by reasonable suspicion, in violation of his Fourth Amendment rights. He argues he was pulled over on a mere "hunch," and the trial court therefore erred when it denied his pretrial motion to suppress evidence obtained as a result of the unlawful detention. He further contends trial counsel provided ineffective assistance by failing to renew the motion to suppress at trial to preserve the issue for appeal.
We grant Frando's unopposed request to file a supplemental opening brief raising this argument on appeal.
A. Additional Factual Background
At the preliminary hearing, the border patrol agent described his duties including highway interdiction (or roving patrol)—i.e., driving and looking for suspicious behavior associated with "transport[ing] drugs or human smuggling." Frando captured the border patrol agent's attention because, when Frando noticed the agent's vehicle, "his hands immediately went to the 10 and 2 position, elbows locked, arms dipped." The agent testified Frando's behavior was "inconsistent with the general motoring public," and given his experience, this suggested that something illegal or illicit was going on. The agent saw Frando looking in his rearview mirror to watch the agents, not driving straight, and swerving between lanes. Then Frando made a dangerous lane change, wedging himself between cars when there was "no room," cutting off the person behind him. After observing Frando for approximately five minutes, the border patrol agents pulled the vehicle over based on "the accumulation of all the nervous behaviors."
Frando initially told the agents he was a realtor heading to Los Angeles to show a house, but he did not have information about the house or the name of the person he was going to meet. He denied having drugs or engaging in illegal activity. After about five minutes of questioning, Frando consented to a search of the vehicle. Officers found multiple bundles of cocaine in suitcases in the trunk of the car. There were 33 plastic-wrapped packages of cocaine with a total approximate weight of 44 kilograms (including packaging).
Based on the preliminary hearing testimony, Frando's counsel moved to suppress the evidence seized from Frando's vehicle, arguing the border patrol agents had no specific, articulable facts to stop him. The trial court denied the motion, finding that the border patrol agents had reasonable suspicion to stop Frando based on his reaction to seeing the agents and his driving after the agents began to follow him, including the unsafe lane change. The trial court found the sudden, unsafe lane change could be perceived "as an effort to hide in plain sight"—"to separate his vehicle, mix it in with all the other vehicles in lane number [three] so that perhaps the patrol agent will lose sight of him." The court found the duration of initial questioning by the agents (approximately five minutes) was not unduly prolonged, and following this initial questioning, Frando consented to a search of the vehicle.
On appeal, Frando does not challenge the duration of the detention as unduly prolonged. Frando also does not challenge the consent to search his vehicle, other than to argue it was the product of the initial unlawful detention unsupported by reasonable suspicion.
B. Applicable Law
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.) An investigatory detention must satisfy the reasonable suspicion standard of Terry v. Ohio (1968) 392 U.S. 1. (See People v. Brown (2015) 61 Cal.4th 968, 974 [" '[W]hen the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,' the officer effects a seizure of that person, which must be justified under the Fourth Amendment to the United States Constitution."], citing Terry, at p. 19, fn. 16.) The reasonable suspicion standard "is not a particularly demanding one, but is, instead, 'considerably less than proof of wrongdoing by a preponderance of the evidence.' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146.) This standard applies to border patrol agents conducting roving patrol stops. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 882 (Brignoni-Ponce) [border patrol agents "must have a reasonable suspicion to justify roving-patrol stops"]; see also Chavez v. United States (9th Cir. 2012) 683 F.3d 1102, 1109-1110 ["An officer conducting a roving patrol near the border violates the Fourth Amendment if she stops a vehicle in the absence of an objectively 'reasonable suspicion' that the 'particular vehicle may contain aliens who are illegally in the country' or is involved in some other criminal conduct."].)
In the context of border patrol stops, the Supreme Court outlined several factors to consider when determining if reasonable suspicion exists to stop a vehicle, including: "1) characteristics of the area; 2) proximity to the border; 3) usual patterns of traffic and time of day; 4) previous alien or drug smuggling in the area; 5) behavior of the driver, including 'obvious attempts to evade officers'; 6) appearance or behavior of passengers; 7) model and appearance of the vehicle; and 8) officer experience." (United States v. Garcia-Barron (9th Cir. 1997) 116 F.3d 1305, 1307, quoting Brignoni-Ponce, supra, 422 U.S. at p. 885).
"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).) "An investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith." (People v. Loewen (1983) 35 Cal.3d 117, 123; People v. Hernandez (2008) 45 Cal.4th 295, 299 (Hernandez) ["officers are not entitled to rely on mere hunches"].)
" 'In reviewing a suppression ruling, "we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found." ' " (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).) " '[W]e view the evidence in a light most favorable to the order denying the motion to suppress' [citation], and '[a]ny conflicts in the evidence are resolved in favor of the superior court ruling' [citation]. Moreover, the reviewing court 'must accept the trial court's resolution of disputed facts and its assessment of credibility.' " (Ibid.)
C. Analysis
As a preliminary matter, we address the Attorney General's argument that Frando has forfeited his claim of error. A "defendant must renew [his] suppression motion before the trial court to preserve the issue for appeal." (People v. Hoffman (2001) 88 Cal.App.4th. 1, 3.) Frando contends his counsel's failure to renew the suppression motion amounted to ineffective assistance. To prevail on a claim of ineffective assistance of counsel, Frando must establish (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-694 (Strickland).) If the suppression motion should have been granted, counsel's failure to preserve the issue for appellate review would constitute deficient performance and this deficiency would prejudice Frando. "Hence, to determine whether counsel was constitutionally ineffective for failing to preserve the issue, we must consider the merits of the Fourth Amendment argument." (People v. Hart (1999) 74 Cal.App.4th 479, 486-487.)
Frando contends his Fourth Amendment rights were violated because his detention was based on a "hunch," not reasonable suspicion. He contends that the only observations cited by the agent to justify the detention were shifting his hands to the "ten and two" position and slowing to make a lane change. He contends these observations are insufficient to constitute reasonable suspicion because many people are taught to drive with their hands in the "ten and two" position and "many law abiding motorists . . . reduce their speed on the freeway when being followed by a law enforcement vehicle" (United States v. Hernandez-Alvarado (9th Cir. 1989) 891 F.2d 1414, 1419 (Hernandez-Alvarado)). Similarly, Frando contends that his nervous behavior, "by itself" or "standing alone," does not justify his detention because innocent people often feel nervous around law enforcement.
Frando's arguments disregard the totality of the circumstances that triggered the agents' suspicions. (See Souza, supra, 9 Cal.4th at p. 231 [courts examine the totality of the circumstances to determine if investigative detention was reasonable].) The arresting agent acknowledged that individuals are taught to drive with their hands at the "ten and two" position, and that people generally feel nervous around law enforcement. But Frando's actions cannot be examined in isolation. (Id. at p. 227.) Similarly, "[t]he possibility of an innocent explanation does not deprive the [agent] of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . ." (In re Tony C. (1978) 21 Cal.3d 888, 894; see United States v. Sokolow (1989) 490 U.S. 1, 9 [factors that, by themselves, may be "consistent with innocent travel" may collectively amount to reasonable suspicion].) Frando did not merely hold his hands on the steering wheel, or reduce his speed, like other innocent drivers. Rather, Frando moved to this position, with his arms "fully extended" and "stiffened," only when he noticed the agents in their marked border patrol vehicle at the checkpoint. The border patrol agent who testified at trial concluded Frando was demonstrating nervous behavior similar to perpetrators in previous narcotics arrests and drug seizures. The Supreme Court has "recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion" (Illinois v. Wardlow (2000) 528 U.S. 119, 124), and we view all of these facts in light of the agents' experience in determining whether reasonable suspicion exists. (United States v. Arvizu (2002) 534 U.S. 266, 273-274 ["This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' "].) Applying these principles here, we conclude the border patrol agent properly cited specific, articulable facts which demonstrate a reasonable suspicion that Frando was engaged in illegal activity.
The border patrol agent testified, however, that this general nervousness did not typically apply to border patrol agents because they have a "very specific" and exclusive focus on immigration and drug enforcement and are disregarded by most people.
We acknowledge not all of the Brignoni-Ponce factors justify the detention here. Certain factors are not applicable or were not mentioned at trial, such as the appearance or behavior of passengers, the usual patterns of traffic and time of day, and the model and appearance of the vehicle. But no single factor is dispositive and not every factor must be present to justify an investigative detention. With respect to the characteristics of the area, proximity to the border, and previous alien or drug smuggling in the area, the border patrol agent testified that the stretch of freeway here is known as a high-narcotics trafficking area, connecting Mexico to the interior of the United States. Our Supreme Court has cautioned against giving too much weight to the high rate of crime in an area. (People v. Bower (1979) 24 Cal.3d 638, 645; see also People v. Mendoza (2020) 44 Cal.App.5th 1044, 1051 ["it was not objectively reasonable to suspect [defendant] was involved in criminal activity," where border patrol agent in unmarked vehicle said the defendant "caught his attention initially only because she was driving in a known drug trafficking corridor in a vehicle that had crossed the United States-Mexico border approximately a week earlier"].) In this case, however, Franco's detention was justified by more than just the location.
See footnote 5, ante.
Frando's reliance on the fact that the agents' vehicle check showed Frando's car had not crossed the border and had not previously been stopped on suspicion of smuggling narcotics is similarly unpersuasive. These circumstances do not preclude a finding of reasonable suspicion, provided there are other "specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (Souza, supra, 9 Cal.4th at p. 231.)
After Frando engaged in unusual behavior, prompting the agents to follow him, he continued to raise their suspicion through evasive and unsafe driving. Frando reduced speed as the agents approached in their marked car, and he then undertook an unsafe lane change, squeezing himself between two cars where there was very little room, forcing the motorist behind to brake. Frando was preoccupied looking at the border patrol vehicle through his mirrors to the point that his car drifted between traffic lanes. It was not just the location, nervous demeanor, and reduction in speed that was significant here. Based on the agents' training and experience, Frando engaged in the type of evasive behavior that properly supports the existence of reasonable suspicion. (See United States v. Nikzad (9th Cir. 1984) 739 F.2d 1431, 1432-1433 [where defendant kept looking back nervously at officers who were observing arriving passengers at airport, and "continually shifted his weight from foot to foot and walked back and forth," his nervous behavior was sufficient to constitute reasonable suspicion for narcotics possession]; In re H.M. (2008) 167 Cal.App.4th 136, 145 [concluding reasonable suspicion justified weapon search where youth committed minor traffic violation and exhibited unusual suspicious behavior, including dashing through heavy traffic, repeatedly glancing behind him, and demonstrated profuse sweating and nervousness]; cf. United States v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1136-1137.)
"The fact that a driver proceeds at a speed slower than the speed limit under circumstances where he might normally proceed at the higher speed also is a factor appearing to justify an officer's investigation." (People v. Gibson (1963) 220 Cal.App.2d 15, 20.)
The trial court found that the driving maneuver was "an effort to hide in plain sight," so that "the patrol agent will lose sight of him." We defer to the trial court's factual findings, which are supported by substantial evidence. (Tully, supra, 54 Cal.4th at p. 979; see also United States v. Valdes-Vega (9th Cir. 2013) 738 F.3d 1074, 1079-1080 ["The agents noted that this behavior—the erratic driving, the change in speed—could be evasive maneuvering. [Defendant's] argument that border patrol agents do not enforce traffic laws misses the point. The erratic driving of the truck showed a pattern that the experienced agents recognized as common to smugglers."].)
This evasive action distinguishes this case from others cited by Frando. (See, e.g., People v. Valenzuela (1994) 28 Cal.App.4th 817, 828 [defendant was unlawfully detained where he "was not attempting to flee or evade [the agent]; he simply did not look directly at him and kneaded his hands on the steering wheel"]; Hernandez-Alvarado, supra, 891 F.2d at pp. 1415-1416 [investigatory stop was not justified where driver saw the agents, quickly turned his attention back to the road, reduced his speed to 10 miles per hour below the posted limit, sat rigidly, and drove "in a very cautious manner"]; Hernandez, supra, 45 Cal.4th at pp. 299-301 [police officer did not have a particularized suspicion to stop a truck based only on the fact the truck displayed a temporary permit and no license plates].)
The subsequent search of Frando's vehicle, based on his express consent, was also lawful. The border patrol agents' initial stop must be supported by reasonable suspicion. "[B]ut any further detention or search must be based on consent or probable cause." (Brignoni-Ponce, supra, 422 U.S. at p. 882.) Frando does not challenge the voluntariness of his consent or other statements made to the agents. Instead, he asserts they were the product of an unlawful detention unsupported by reasonable suspicion. (See People v. Zamudio (2008) 43 Cal.4th 327, 341 ["Consent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure."].) We already have rejected Frando's challenge to the validity of his detention, and therefore reject Frando's argument that any evidence seized as a result of the search of his vehicle should be suppressed.
In sum, we conclude the trial court did not err in denying Frando's motion to suppress because the totality of the circumstances—Frando's stiffened driving posture, speed reduction, sudden, evasive, and unsafe lane change, and drifting between lanes while glancing in the mirrors, all of which occurred in an area known to be a high-narcotics trafficking area—constitute reasonable suspicion to justify his detention. Since the detention and subsequent search were legal, Frando's counsel was not constitutionally ineffective for failing to renew the suppression motion in the trial court. For the same reason, Frando cannot establish he was prejudiced by his counsel's failure to renew the motion. Accordingly, Frando cannot establish ineffective assistance of counsel. (Strickland, supra, 466 U.S. at pp. 687-688.)
II.
Sufficiency of the Evidence
To be guilty of the crime of transportation for sale of a controlled substance (in this case, cocaine), the prosecutor must prove: (1) the defendant transported a controlled substance; (2) the defendant knew of its presence; (3) the defendant knew of the substance's nature or character as a controlled substance; (4) the controlled substance transported was transported for sale; (5) the transported substance was cocaine; and (6) the controlled substance was in a usable amount. (Health & Saf. Code, § 11352, subd. (a); CALCRIM No. 2300; see People v. Meza (1995) 38 Cal.App.4th 1741, 1746 ["Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character."].) Frando only challenges elements 2 and 3—claiming there is insufficient evidence to show that he knew the suitcases contained a controlled substance. We disagree.
"In assessing a claim of insufficiency of evidence, [this court's] task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal for insufficient evidence is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) " 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' " (People v. Brooks (2017) 3 Cal.5th 1, 57; People v. Newman (1971) 5 Cal.3d 48, 52 [applying this principle to unlawful possession offense], disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)
We conclude there was sufficient circumstantial evidence for the jury to infer Frando was aware of the presence and illegal character of the contraband he was transporting. A defendant's possession of narcotics alone constitutes substantial evidence of his knowledge. (People v. Eckstrom (1986) 187 Cal.App.3d 323, 331; People v. Schreiber (1971) 21 Cal.App.3d 812, 814.) The expert testimony that unknowing drug couriers would not be trusted with such an extensive amount of narcotics further supports an inference that Frando knew what he was transporting.
The prosecution was not required to establish Frando knew the specific type of drugs he was transporting. (People v. Romero (1997) 55 Cal.App.4th 147, 152 ["A defendant who mistakenly believes a package of cocaine actually contains marijuana nevertheless knows that facts exist which bring possession of the package within the provisions of the Health and Safety Code."].)
In addition, the circumstances surrounding Frando's arrest and his own statements undermine his claim that he had no knowledge of the drugs. "All surrounding facts and circumstances may be considered in determining knowing possession of narcotics [citation], including defendant's conduct, admissions, contrary statements or explanations . . . ." (People v. Schumacher (1967) 256 Cal.App.2d 858, 865-866.) Moreover, "knowledge of the character of dangerous drugs or narcotics may be shown by acts or declarations of the accused which indicate a 'consciousness of guilt.' " (People v. Williams (1971) 5 Cal.3d 211, 216.) Here, Frando engaged in suspicious, nervous, and evasive behavior in response to seeing the border patrol agents. His false statements about where he was going (to show a house in Los Angeles) show a consciousness of guilt. (People v. Kimble (1988) 44 Cal.3d 480, 496.) During his interview, he made a number of admissions that the jury could use to infer knowledge—stating "I knew it wasn't, like, legit"; "I had no idea, I mean I knew there was something bad about those damn bags. Stupid, stupid, stupid"; and, after being told the agents found nearly a million dollars' worth of drugs, "I kind of knew, but I had no idea it was . . . shit." Jurors could also infer that Frando's defense, that he was simply driving a car to help a family deliver luggage to Los Angeles, was not credible—particularly when he was paid $800 by someone he knew was involved in "unsavory" driving jobs with his friend Joel and who "runs drugs to Joel." The person who hired Frando also had asked Frando if he knew where he could rent a garage for $1,000 two days prior to the incident, and after first saying Frando would be transporting a female to Los Angeles, changed the plans and refused to provide an address for the delivery of the luggage until after Frando passed the border patrol checkpoint. Frando admitted all of this made him "uncomfortable," yet he continued with the job. At trial, Frando presented a defense explaining he lied about where he was going because he was afraid of losing his restricted driver's license, and denied knowledge of the cocaine, but the jury did not find his testimony credible. (See People v. Ford (1969) 271 Cal.App.2d 725, 729 ["implausible explanation" of how defendant obtained vehicle containing marijuana "could be taken as a fabrication" and support "a reasonable inference [defendant] had guilty knowledge of the bulk marijuana concealed in the car"]; People v. Booker (2011) 51 Cal.4th 141, 172 [a reviewing court does not reevaluate a witness's credibility].) Moreover, "[e]ven if the evidence could be reconciled with a different finding, that does not justify a conclusion that the jury's verdict was not supported by the evidence, nor does it warrant a reversal." (People v. Romero (2008) 44 Cal.4th 386, 400.)
In sum, we conclude there was substantial evidence from which the jury could reasonably infer that Frando knew of the nature of the substance found in his vehicle.
III.
Expert Opinion Testimony
Frando contends the trial court prejudicially abused its discretion when it admitted expert testimony that drug organizations try out couriers with small amounts of drugs before entrusting them with larger shipments. We conclude the court did not err in admitting this testimony over Frando's objection that it was speculative and lacked foundation. Even assuming the court erred in admitting the testimony, it was harmless.
A. Additional Factual Background
At trial, a detective with the San Diego County Sheriff's Department testified as a drug expert. He had worked as a peace officer for eight and a half years and was currently part of the narcotics and gang division. His team regularly investigated cross-border smuggling cases and cases involving possession of controlled substances for sale. The detective had extensive experience working on narcotics cases. During his prior career as a patrol deputy, he "came into almost daily contact [with] people that used controlled substances and people that sold controlled substances." After he left patrol, he joined a team that investigated possession for sale cases. In this position for the past two and a half years, he regularly investigated high-level possession for sale cases. He attended 160 hours of classroom training on "the possession, the use, and the possession for sale of controlled substances." As part of his training, he took a course on how to run a drug operation and how to investigate cases involving possession for sale. During narcotics investigations, the detective arrested about 400 people, assisted in the arrest of thousands of other individuals, and "investigated several hundred cases of high-level narcotics smuggling within Southern California." During the course of his work, he spoke to drug couriers "[m]any, many times" and discussed how drugs were sold, packaged, and concealed, and how couriers were paid. His work with drug informants as a handler gave him "unique insight into the world of drug trafficking."
The detective testified that the approximate street value of 33 kilograms of cocaine was $1.3 to $2.6 million. When the prosecutor asked the detective if in his training and experience "first-time couriers receive 33 kilos of cocaine to transport," defense counsel objected that the answer called for speculation and lacked foundation. After the court overruled the objections, the detective explained that drugs are often stolen during the trafficking process. For this reason, "drug trafficking organizations . . . vet their employees" by providing a courier with a small amount of drugs or a different task in order to determine if the courier could be "trusted and reliable." Once the individual gained the organization's trust, the organization would start supplying him or her with larger amounts of drugs.
In his opening brief, Frando objects to the use of 33 kilograms and states the criminalist testified the weight was 21 kilograms. Construing the evidence in the light most favorable to the prosecution, the record supports the detective's reference to 33 kilograms. In any event, this discrepancy is not material to the issues on appeal.
B. Applicable Law
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, §720.) A witness testifying as an expert may offer opinion testimony related to a subject that is "sufficiently beyond [the] common experience that [it] would assist the trier of fact." (Id., § 801, subd. (a).) An expert's opinion is admissible if "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, 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 . . . ." (Id., § 801, subd. (b).)
We review the admission of expert opinion testimony under an abuse of discretion standard and only reverse where a manifest abuse of discretion is shown. (People v. Clark (2019) 43 Cal.App.5th 270, 292.)
C. Analysis
Frando objects to the detective's testimony on two grounds, contending the testimony lacked foundation and was based on speculation. Both objections lack merit.
Frando does not argue the evidence was irrelevant or that the trial court abused its discretion under Evidence Code section 352. (See United States v. Gomez (9th Cir. 2013) 725 F.3d 1121, 1128-1129 (Gomez) [testimony from the government's expert witness "that drug-trafficking organizations do not use unknowing drug couriers" was "probative and relevant, and it was not unduly prejudicial"]; cf. People v. Covarrubias (2011) 202 Cal.App.4th 1, 16, 18, & fn. 16 (Covarrubias) [finding extensive expert testimony concerning the structure and practices of drug trafficking organizations to be harmless error, and not reaching the issue of the admissibility of testimony regarding unknowing drug couriers or "blind mules"].)
There was sufficient foundation for the expert's opinion based on his experience, training, and education. (Evid. Code, §720.) Frando concedes there was foundation for the detective to opine on how drugs are sold, packaged, or concealed in vehicles, and how drug couriers are recruited, hired, and paid. But he contends there was no foundation on how drug organizations decide "when a courier can be entrusted to move large quantities of drugs." Specifically, he contends the detective did not have any "expertise on the decisional process of drug organizations," did not testify that any of his arrests "involved people who chose drug couriers and how those decisions are made," and did not testify that any of the couriers he talked to "had any knowledge of the way drug organizations or anyone else would decide how or why to whom they would entrust a large quantity of controlled substance." We are not persuaded that this specificity was required before the detective could opine that, based on his experience and training, drug couriers are vetted with smaller amounts of narcotics before being entrusted with larger quantities. The detective's extensive experience working on narcotics cases included high-level possession for sale cases, he had training on how drug operations were run, and he had extensive personal dealings with drug couriers and drug informants. Based on the breadth of this experience, he had "unique insight into the world of drug trafficking," providing sufficient foundation for his opinion.
We also reject Frando's related contention that the detective's testimony was speculative because he never testified that he talked to "drug organization decision-makers." The detective explained he had "investigated several hundred cases of high-level narcotics smuggling within Southern California," and he spoke to numerous drug couriers and drug informants involved in drug trafficking operations. Failing to speak to additional, or more heavily-involved, "decision-makers" does not make the detective's opinion speculative. It was not an abuse of discretion to conclude the detective had sufficient information from these sources, combined with his extensive training, to render an expert opinion about how drug couriers are vetted. Drawing on his personal experience with drug traffickers, the detective explained why drug traffickers would not provide large quantities of narcotics to someone who was not trusted and reliable—"because it's very expensive and the possibility of the drugs being stolen . . . would be too high." This testimony was properly admitted to rebut Frando's defense that he was an unknowing drug courier. (See, e.g., United States v. Cordoba (9th Cir. 1997) 104 F.3d 225, 229 ["The expert testimony that drug traffickers do not use unknowing transporters was clearly probative of [the defendant's] knowledge that he possessed narcotics."]; United States v. Castro (9th Cir. 1992) 972 F.2d 1107, 1111 ["Government experts testified that that amount of cocaine, valued in the millions of dollars, would have never been entrusted to an unknowing dupe. Based on that testimony the jury reasonably could have found that [the defendant] knowingly possessed the cocaine."], overruled on other grounds by United States v. Jimenez Recio (2003) 537 U.S. 270, 274; United States v. Sepulveda-Barraza (9th Cir. 2011) 645 F.3d 1066, 1072 [testimony that drugs were worth more than $150,000 and that drug trafficking organizations do not normally use unwitting couriers for high value shipments " 'went right to the heart' " of unknowing courier defense].)
Frando claims the detective based his opinion on unreliable second-hand information. We disagree that the record demonstrates this to be true. To the extent the detective relied on some hearsay to form his opinion, however, he is permitted to do so "and may tell the jury in general terms that he did so." (People v. Sanchez (2016) 63 Cal.4th 665, 685.) The weight to attribute to the expert's testimony is a matter for the jury to determine. (Bolin, supra, 18 Cal.4th at p. 322.) 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.)
Frando also objects to how the questions were framed, stating the prosecutor did not pose a proper hypothetical question and therefore elicited the detective's "opinion that appellant was guilty because he must have smuggled drugs before this." Frando is incorrect. Although an expert cannot opine on whether the defendant is guilty or innocent, admissible opinion testimony is not objectionable just because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805; People v. Romo (2016) 248 Cal.App.4th 682, 697 [expert testimony that defendant charged with unlawfully importing controlled substance was not "blind mule," i.e., unaware of drugs, was admissible because it was not an opinion on defendant's guilt]; see also Gomez, supra, 725 F.3d at p. 1128 [special agent's testimony that drug-trafficking organizations do not use unknowing drug couriers was permissible where the prosecutor's questions asked about the agent's experience with drug traffickers and did not seek any explicit opinion on defendant's state of mind or knowledge of his transportation of drugs].) The detective's expert opinion was appropriate here. It is clear from the record that the prosecutor was not asking any questions about Frando, and the detective was not providing any opinions regarding Frando's guilt.
Even if the detective's testimony was admitted in error, Frando has not demonstrated the error was prejudicial. (See People v. Prieto (2003) 30 Cal.4th 226, 247 [erroneous admission of expert testimony evaluated under state standard of error set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].) Contrary to Frando's assertion, the detective's testimony was not "[t]he only way" the jury could have inferred that Frando "knew the suitcases contained a controlled substance." Frando's own actions, his false statements at the time of his arrest, his admission that he knew what he was doing was not "legit," and the circumstances surrounding his decision to drive suitcases for Alex—someone he knew "runs drugs" to his friend who "engage[d] in these unsavory . . . driving jobs"—all support an inference that Frando knew he was transporting drugs. Moreover, the detective's testimony regarding the value of the drugs (from $1.3 to $2.6 million) was unchallenged. Even without the expert's additional testimony, the jury could conclude Frando's defense that he was unknowingly transporting such a valuable drug load was implausible. Even if we assume the admission of the detective's testimony was erroneous, it was harmless because there is no reasonable probability Frando would have obtained a more favorable result absent its admission.
Frando also contends the erroneous admission of the detective's testimony violated his constitutional rights, and thus the prejudice standard in Chapman v. California (1967) 386 U.S. 18 (Chapman) applies. However, "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.) For the same reasons we have already concluded Frando was not prejudiced by any assumed error, we conclude the admission of the detective's testimony did not render the trial fundamentally unfair. (See People v. Prince (2007) 40 Cal.4th 1179, 1229 [concluding defendant's constitutional claims objecting to admission of expert testimony were "without merit for the same reasons that defendant's state law claims have been rejected"]; Covarrubias, supra, 202 Cal.App.4th at pp. 20-21 [even where erroneously admitted expert testimony about drug trafficking issues constituted a "significant portion" of prosecution's case, it did not violate due process].)
IV.
Prosecutorial Misconduct Claim
Frando contends the prosecutor made misstatements of fact and law during closing arguments, which deprived him of his constitutional right to a fair trial, and trial counsel's failure to object or request a stronger jury admonition amounted to ineffective assistance of counsel. We reject Frando's contentions but conclude that, even if the prosecutor's statements amounted to misconduct, Frando was not prejudiced, and any assumed error was harmless.
A. Additional Factual Background
Near the outset of closing arguments, the prosecutor argued, "Ladies and gentlemen, the elements of the crime that I need to show you beyond a reasonable doubt have each been shown if you look at the reasonable interpretation of the evidence." The prosecutor went on to argue the evidence supports finding each element of the crime of transporting a controlled substance for sale.
In her closing, defense counsel asked rhetorically, "Would an experienced drug trafficker consent to a search of 30 kilos of cocaine? No." Presenting the defense theory that Frando was a naïve victim, defense counsel stated:
"This is a guy who was duped. Who was taken advantage of and was duped. [¶] An experienced drug trafficker is going to ask where is your warrant? An experienced drug trafficker is going to say, No, you can't search my car. I'd like to be on my way now. An experienced drug trafficker, when the dog alerts, is going to say, I'm going to withdraw my consent; no, you can't open those bags. An experienced drug trafficker, or someone who even knows there's dope in those bags is—the first thing, Oh, those bags aren't mine. Oh, no. Everything else in the car is mine but not those bags, because I know there's something in those. That's what an experienced drug trafficker does, or at least someone who is guilty of knowing what's going on."
In response, the prosecutor argued:
"When they were—counsel was pushing the idea of experienced drug traffickers don't consent to a search of their car, that's just not true. That's just completely untrue. It's done all the time."
Defense counsel objected on the ground of facts not in evidence. The trial court overruled the objection, stating, "It's argument."
The prosecutor continued:
"It's done all the time, and that gives the driver of the car the ability to do what Mr. Frando's trying to say. I have nothing to hide. Nothing to hide. Whereas, if they say no, I don't consent, it takes . . . away that argument. They consent all the time. For them to argue that's ridiculous is a ridiculous argument because it's done all the time."
The prosecutor next argued:
"[H]e knows exactly what's in the bags because his best friend, ladies and gentlemen—think of that for a second—his best friend does this all the time. Alex fronts drugs to his best friend, as he told you on the transcript and on that stand. His best friend is a drug trafficker. He's working for Alex who he only knows through his best friend, the drug trafficker. I don't know what's in the bag. I got the job through my best friend who is a drug trafficker. [¶] Ladies and gentlemen, think about that for a second. His best friend is a regular drug trafficker."
Defense counsel again objected based on "[f]acts not in evidence." The trial court admonished the jury, "I mentioned to you before; the comments of the attorneys [are] not evidence. It's your job to determine what the facts are based solely on the evidence that's been admitted in this case."
The prosecutor continued:
"Piece two and two together. [¶] What did he tell you? [¶] Joel works regularly for Alex. Alex fronts drugs to Joel, my best friend. His only connection to Alex is through his friend Joel, the drug trafficker, and—and he's saying, I don't know what's in these bags. You know that's not true. You don't need hindsight. You just need to be reasonable. [¶] And that's your standard. Reasonableness."
B. Applicable Law
A prosecutor has wide latitude to argue his or her case vigorously, but improper argument may amount to prejudicial misconduct if a prosecutor uses deceptive or reprehensible methods to persuade the jury or if the argument infects the trial with such unfairness as to make the conviction a denial of due process under the federal constitution. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); Tully, supra, 54 Cal.4th at pp. 1009-1010.) A prosecutor need not act in bad faith to commit misconduct, but the defendant must have been prejudiced as a result. (People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
To determine whether the alleged misconduct was sufficiently prejudicial as to require reversal, we consider "how the [statement] would, or could, have been understood by a reasonable juror" in the context of the entire argument. (People v. Benson (1990) 52 Cal.3d 754, 793.) The court will not infer that the jury drew the most, as opposed to least, damaging meaning from the disputed comments; instead, the defendant must establish a reasonable likelihood that the jury understood and applied the comments in an improper manner. (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 420.)
The conduct is prejudicial under the federal Constitution when it infects the trial with such unfairness to deny the defendant due process and is prejudicial under state law even if it does not result in a fundamentally unfair trial, if it employs deceptive or reprehensible methods to attempt to persuade the jury. (People v. Powell (2018) 6 Cal.5th 136, 172.) A finding of prejudice under either standard requires reversal. (Ibid.) If federal constitutional error is established, we apply the Chapman standard and decide whether the error is harmless beyond a reasonable doubt. (See People v. Estrada (1998) 63 Cal.App.4th 1090, 1106-1107, citing Chapman, supra, 386 U.S. at p. 24.) If the error does not rise to that level, we apply the Watson standard and determine if there is a "reasonable probability that the jury would have reached a more favorable result absent the objectionable comments." (People v. Sandoval (1992) 4 Cal.4th 155, 184; Watson, supra, 46 Cal.2d at p. 836.)
C. Analysis
Frando contends the prosecutor committed prejudicial error by misstating the law. " '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (Hill, supra, 17 Cal.4th at p. 829.) We reject Frando's claim that the prosecutor's references to "reasonableness" amounted to an attempt to shift the burden of proof to the defendant. After referring to the evidence at trial, the prosecutor argued that "the only reasonable interpretation of the evidence is that Mr. Frando chose to transport drugs for hire," and "[t]he reasonable interpretation of the evidence is someone took a job moving drugs north." "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (People v. Cortez (2016) 63 Cal.4th 101, 130.) We " ' "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Centeno (2014) 60 Cal.4th 659, 667.) We conclude it is not reasonably likely the jury understood the prosecutor's remarks in an objectionable fashion. These types of remarks, urging the jury to "reject impossible or unreasonable interpretations of the evidence," do not constitute misconduct. (Centeno, at p. 672; see People v. Meneses (2019) 41 Cal.App.5th 63, 72 (Meneses) ["A prosecutor may argue that defense interpretations of the evidence are unreasonable, but may not argue that deficiencies in the defense evidence can make up for shortcomings in the prosecution's case."].) Frando relies on People v. Ellison (2011) 196 Cal.App.4th 1342, a case involving inappropriate prosecutorial comments regarding the reasonable doubt burden of proof. (Id. at p. 1353 ["the prosecutor improperly attempted to lessen the People's burden of proof by arguing to the jury that the beyond-reasonable-doubt standard required the jury to determine whether defendant's innocence was reasonable"]. By contrast, here, it was clear the prosecutor was discussing the "reasonable interpretation of the evidence," which was largely circumstantial. Viewed in context, we conclude the prosecutor's statements were not an improper attempt to shift or lessen the People's burden to prove guilt beyond a reasonable doubt.
Frando did not object to this claim of error but, because he also asserts ineffective assistance of counsel, we consider the merits of each of Frando's claims of misconduct to determine whether counsel was ineffective.
The jury was instructed: "[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (See CALCRIM No. 224.)
Moreover, the jury was properly instructed on the governing standard requiring the People to prove each element of the charged crime beyond a reasonable doubt. We presume the jury followed the court's instructions. (People v. Martinez (2010) 47 Cal.4th 911, 957; see Meneses, supra, 41 Cal.App.5th at p. 73 [even where one of the prosecutor's statements "may have misstated the law if viewed in isolation," appellate court concluded "there was no prosecutorial error because in the context of the entire argument and jury instructions it was not reasonably likely the jury understood or applied the statement in an improper or erroneous manner"].)
Frando further contends the prosecution committed misconduct when it referred to his friend, Joel, as a "regular drug trafficker" because there was no evidence to support this statement. "A prosecutor may make fair comment on the state of the evidence" (People v. Cook (2006) 39 Cal.4th 566, 608), " 'which can include reasonable inferences, or deductions to be drawn therefrom.' " (People v. Wharton (1991) 53 Cal.3d 522, 567.) Given Frando's own testimony—that he knew "Alex runs drugs to Joel," and Joel told Frando he "engage[d] in these unsavory . . . driving jobs for Alex"—we conclude the prosecutor's statement did not amount to misconduct.
Frando's final objection is based on the prosecutor's rebuttal argument that "experienced drug traffickers" give consent to a search of their vehicles "all the time." The prosecutor explained that "[i]t's done all the time" so the driver can say they have nothing to hide. "Whereas, if they say no, I don't consent, it takes away that argument. They consent all the time." The prosecutor's statement was in response to defense counsel's argument that an experienced drug trafficker would not have consented to a search of his vehicle (unlike Frando, who did consent). The prosecutor's statements that drug traffickers consent to searches "all the time" was improper because there was no evidence in the record on this issue. (People v. Rivera (2019) 7 Cal.5th 306, 335 [" ' "[S]tatements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct." ' "].) We conclude this error was harmless "[w]hether considered under this state's 'reasonable likelihood of a more favorable verdict' standard or the federal 'harmless beyond a reasonable doubt' standard . . . ." (Rivera, at p. 335.) The statements were isolated remarks during the beginning of the prosecutor's rebuttal, the prosecutor quickly moved on to discuss the evidence at trial, the evidence supporting Frando's guilt was strong, the jury was instructed to determine the facts "based only on the evidence" presented "in this trial," and the jury was further instructed that "[n]othing that the attorneys say is evidence." Based on these facts, we conclude the error was harmless. (Rivera, at p. 335 [concluding error was harmless based on similar grounds].)
Although "a prosecutor is justified in making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel," they must nonetheless be "based on the record." (People v. Hill (1967) 66 Cal.2d 536, 560.)
Although we have concluded the prosecutor's remaining statements did not amount to misconduct, we would nonetheless reach the same result and conclude any error was harmless as to those additional remarks as well.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.