Opinion
A141051
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY LAND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-1207901)
Appellant, Gregory Land, an inmate at West County Detention Facility, was convicted of conspiracy to smuggle drugs into jail, (Pen. Code, §§ 182, 4573; Health & Saf. Code, § 11379, subd. (a)), furnishing drugs (Health & Saf. Code, § 11379, subd. (a)), and attempting to smuggle drugs into jail (§§ 4573/664). The jury found true a number of overt acts regarding the conspiracy charge. In a bifurcated proceeding, the trial court found true the allegation that Land had sustained a prior conviction for manufacturing methamphetamine (Health & Saf. Code, § 11379.6). The trial court sentenced Land to two years in jail for the conspiracy charge, plus a consecutive three-year term for the prior conviction for a total of five years in county jail.
All further references are to the Penal Code unless otherwise indicated.
On appeal, Land contends that the evidence was insufficient to support his conviction, that the trial court improperly assessed his drug laboratory fine, and that his custody credits were erroneously determined. We amend the abstract of judgment to reflect the proper drug laboratory fine and affirm the judgment in all other respects.
I. EVIDENCE AT TRIAL
A. Prosecution's Case
Contra Costa County Deputy Sheriff Waimun Wong testified that on October 6, 2011, as part of an unrelated investigation, he searched Land and his cell at the jail. The search yielded a power charger, a cell phone, and a disposable "Bic" lighter. Tobacco and lighters are not allowed in the jail, but possession of tobacco is not a crime. Deputy Wong caught inmates smoking tobacco about once a month, and only occasionally heard of a cell phone being seized.
All further dates occur in 2011, unless otherwise specified. --------
Contra Costa County Sheriff's Deputy Michael Lujan testified that on October 7, he heard the report of Land being caught with a cell phone. A confidential informant, inmate Doug Katrones, told Deputy Lujan that Land had told him a few days earlier that he could smuggle things into the jail. Land had asked Katrones whether Katrones and his wife, Kelly, who was not incarcerated, would be interested in procuring items and dropping them off in an area where they could be smuggled into the jail by Nicholas Abuan, an inmate who worked as a " 'facility worker,' " doing landscaping.
Deputy Lujan notified Contra Costa County Sheriff's Sergeant Matt Malone, a highly experienced supervisor of the narcotics unit, about the discussion he had with Katrones. Sergeant Malone was on a first name basis with Katrones and his wife, Kelly, having known them for nearly 20 years. Over the years, Katrones and Kelly had worked for Sergeant Malone as a confidential informants in exchange for consideration in their pending cases. There was an understanding that if the information about the smuggling panned out, Katrones might get some leniency in his sentence. Sergeant Malone told Kelly that he would speak to the district attorney on Katrones' behalf, but he explained there was no fixed deal between the parties or with the district attorney. Sergeant Malone told Deputy Lujan to monitor Land's phone calls, and those of inmate Gregory Forrester. These calls included Land's calls to his girlfriend, Suann Bishel, and Forrester's calls to his girlfriend, Karen Myers; a recording of numerous calls were played for the jury.
In one such call, on October 6, Land spoke to Suann Bishel and told her that something really needed to be done by Sunday, and that it had to be in "the black bag." Land gave Bishel detailed directions as to where to drop the bag.
In another call on October 13, Bishel told Land that she called a woman the other night to tell her that she needed to get "that envelope." Bishel said that the woman then came and got "the stuff." The two women had a disagreement, and Bishel stated that she did not know who the other woman was. Land suggested that the woman's name was Karen Myers.
Sergeant Malone testified that on October 23, Kelly called and said that "Sue" had called her and said there was a package to get to Land. Deputy Malone met with Kelly on October 24, searched her, and drove her to an "Am/Pm" minimart near Richmond. There, deputies saw Suann Bishel arrive and hand Kelly a small black plastic grocery bag.
Sergeant Malone searched the package and found that it held eight packages of cigarettes and three lighters. He drove to the jail and put the bag near a dumpster, as directed by Kelly, and watched. Sergeant Eric McQuoid assisted in the surveillance and saw inmate Nicholas Abuan make contact with the package, but he could not see what Abuan did with it.
Abuan, testified pursuant to a grant of immunity. He was a landscaper who was allowed to leave the secured portion of the jail. He testified that he had agreed with Land to bring in items. He had brought in a cell phone and some tobacco in October. While he agreed to bring in cigarettes, lighters, and the cell phone, he never agreed to bring in marijuana or methamphetamine. Unlike cell phones and cigarettes, introducing methamphetamine into the jail involved not just contraband, but rather was a serious crime and being caught smuggling drugs would mean that he would be looking at a lot of time behind bars. Abuan agreed that some people referred to methamphetamine as "shit," he personally did not use that term.
On November 3, Kelly participated in a second delivery. After searching her and her car, Sergeant Malone followed Kelly as she drove to a house in Pinole, later determined to be the residence of Karen Myers. Sergeant Malone could not see what occurred at the residence; when he saw Kelly leave the residence he followed her back to the pre-arranged meeting place. There, Kelly gave Sergeant Malone a brown paper sack with the words "For G" on it. Inside the sack were two containers of "Bugler" brand loose tobacco, a lighter, a glass pipe commonly used for smoking methamphetamine, and a sandwich bag containing methamphetamine.
Deputy Lujan testified that three letters from Karen Myers to Greg Forrester in the jail had been seized. In one of those letters Karen said, "I met Kelly today, and I gave her two Bics, two packages of Bugler, one glass and almost a ball, a little less." Sergeant Malone testified that "glass" is a common term for a methamphetamine pipe, and that the term "ball" is a common term for a weight of drugs, indicating an eighth of an ounce, or 3.5 grams. He further explained that in his experience he has learned that when drug users or dealers talk about the word "shit," they are referring to methamphetamine.
Sergeant Malone testified that he did not allow the methamphetamine that Karen gave to Kelly to be delivered to the jail. In a subsequent letter dated November 8, Karen told Forrester that she did not understand what had happened to "what" she "gave to Kelly."
On November 5, Suann Bishel and Land had a telephone conversation in which they discussed a third drop. Suann began by complaining that she previously had to give a woman directions to the "AmPm." Land told Suann that if she had been answering her phone, "you would have had some shit already." Land told her that something had to be dropped off early and that they could put it in the mailbox. Land continued, "you can have one half of it, take your couple-take, you know, a couple dollars out of it, you know what I'm sayin? . . . [¶] There should be a bunch of change in there, just go ahead and get-get a couple dollars out of it, all right? I love you, I got to go cook my shit before they cut it off." The two agreed Suann should call Kelly to set up the drop.
On November 6, after someone called to tell Kelly that they "wanted to give her some shit," Kelly participated in a third drop. As before Sergeant Malone searched Kelly and her car, and then followed her to a house in San Pablo, later identified as Suann Bishel's residence. Kelly was in the house no more than a few minutes. Sergeant Lucky Chestnut assisted with surveillance and saw Suann walk Kelly to her car. After Sergeant Malone saw Kelly get into her car, he followed her to the pre-arranged meeting place. At the meeting place, Kelly gave Sergeant Malone two envelopes containing 3.4 grams of marijuana. In a phone call that evening, Suann told Land that Kelly had come to see her. Suann reported that she had handed Kelly the envelopes she had been given. Suann said that she did not touch anything and that the envelopes had stayed sealed. And, contrary to Land's permission, Suann had not taken anything out of them. Land also quizzed Suann about certain phone numbers, and said that "number that you should have answered, that had your medicine in it." The following exchange occurred: "[Suann]: Oh well no. What came today did . . .[¶] [Land]: I know that . . . [¶] [Suann] . . . I mean [I] smelled it. [¶] [Land]: . . . that wasn't even it, no."
Sergeant Malone did not allow the marijuana to go into the jail. But, as an experiment, he put the Bugler tobacco in a bag, and on November 7, put it in the "drop" area outside the jail. Sergeant Chestnut testified that he watched the package. He saw Abuan point to the package, and another inmate who was with Abuan then walked to the package, picked it up, and took it to a storage shed. Sergeant Chestnut walked to the shed and retrieved the package. Sergeant McQuoid also observed the same interaction between Abuan, the other inmate, and the package.
Abuan testified that he did not agree to the scheme out of fear, but rather did it willingly for other people. In June 2012, he was assaulted, and was now in protective custody. Although he maintained he was a willing participant, in a pretrial interview, Abuan told Sergeant Malone a different story. Abuan stated that he did not know who was involved, but that "these guys-not meaning me-. . . they do time like it's nothing-okay. They're not even worried about it-not even worried about it-one phone call and things can happen . . . ." Abuan also stated he was very upset that he had made his supervisor look bad. Abuan stated that "anything that I did I felt I was-I was forced into you know, and I . . . hope it doesn't make [my supervisor] look bad . . . ." (Italics added.)
In this pre-trial interview, Abuan also told the deputies that "the whole conspiracy thing that you have to prove from the outside part of it-that-I had nothing to do with that." Abuan talked about the final package on November 6, adamantly stating, "that I didn't touch. . . . I didn't touch-that I didn't touch." However, Abuan insisted that he did not have any idea what was in that last package. B. Defense Case
Rhonda Murray testified that she grew up with Land, and later they had two children together. Doug Katrones testified that in October of 2011 he did not want to be in jail. He had six prior robbery convictions, and two petty theft convictions.
Land testified that he had prior convictions for manufacturing methamphetamine in 1998, and use of an electronic device to facilitate a drug conspiracy in excess of 100 grams of methamphetamine in 2001.
On October 6, deputies seized a cell phone from him while he was in jail. He had gotten the cell phone through another inmate who had picked it up from outside the jail, after it had been "dropped" there by Suann Bishel.
Doug Katrones was helping him get the cell phone unlocked. Katrones offered to help with getting things placed in the parking lot where they could be brought in by the worker. Land never talked to Katrones about bringing in marijuana or methamphetamine. Land never asked Bishel to bring in drugs. Land did not know what he meant when he told Bishel to take "half" out of the bag in the November 5 phone call.
Land testified that Abuan agreed to help him bring cigarettes and a cell phone into the jail, but that was all. Abuan was like a family friend, and had been involved in the smuggling plot from the beginning. Land divided the October 24 cigarette shipment between himself, Abuan and Katrones; he sold the cigarettes for five dollars each.
The defense played recordings of a number of phone calls between Katrones and Kelly. In an October 31 telephone conversation, between Katrones and Kelly, Katrones put Land on the phone to talk to Kelly. Kelly complained that Karen would not answer her phone calls or texts. Land apologized and said they would figure out something. Land talked about Karen creating unnecessary drama, and that all she was supposed to do was to call and say, " 'Hey Kelly, I'm supposed to get something from Greg [.]' " In two phone calls on November 1, Katrones told Kelly about setting something up, and about getting something from Karen. On November 3, Kelly told Katrones that she wanted Forrester to say incriminating things over the phone. On November 5, Katrones told Kelly that Suann would have "something" for her and that it would be tobacco and something else. They discussed a half ounce of "crank." In later calls, they talked about whether Katrones would be released from jail early. In other calls, it was evident that Sergeant Malone was present and participating with Doug and Kelly.
II. DISCUSSION
A. Substantial Evidence Supports Land's Convictions.
Land contends that all three of his convictions were based on insufficient evidence. Regarding the conspiracy conviction, he claims no evidence was adduced at trial establishing that he had the specific intent to smuggle narcotics into jail. Rather, he claims he only agreed to smuggle tobacco and a cell phone into jail. He maintains that he did not share the same intent as his co-conspirators and, thus, he cannot be liable as a direct participant or as an aider and abettor for furnishing and transporting methamphetamine or for attempting to bring marijuana into jail. We find the convictions were supported by the evidence.
When the sufficiency of the evidence is challenged on appeal, the court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence and excluding inferences based on speculation or conjecture. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.) "The same standard applies to the review of circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.)" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
An appellate court must consider the evidence and all logical inferences from that evidence in light of the legal definition of the crime. (People v, Ceja, supra,4 Cal.4th at p. 1139.)
"But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Bean, supra, 46 Cal.3d at p. 933.) Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. (Ibid.; see also People v. Perez, [1992] 2 Cal.4th [1117], 1126)," (fn. omitted.) (People v, Ceja, supra,4 Cal.4th at p. 1139.)
" 'Whether the evidence presented is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]' (People v. Towler (1982) 31 Cal.3d 105, 118-119.)" (People v. Von Villas (1992) 11 Cal.App.4th 175, 247.)
In order to establish a conspiracy, the prosecution must show (1) an agreement; (2) the specific intent to conspire; (3) the specific intent to commit the offense; and (4) an overt act toward the achievement of that goal. A conspiratorial agreement may be inferred from " 'the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interests of the alleged conspirators . . . .' [Citation.]" (People v. Superior Court (Quinteros ) (1993) 13 Cal.App.4th 12, 20-21.) Land argues that his conspiracy conviction must be reversed because there is no evidence that he possessed the specific intent to bring controlled substances into prison. We find the evidence was more than adequate to infer Land harbored the requisite intent.
The jury was presented with recordings of Land's telephone calls to Bishel. Numerous times during these phone calls, Land directed Bishel to contact various people and reprimanded her for not getting in contact with these individuals. In a November 5 telephone conversation, Land told Bishel that "if you'd have been answering your phone, you would have some shit already." Sergeant Malone explained that "shit" was slang for methamphetamine. Although he personally did not use that term, Abuan agreed people referred to methamphetamine as "shit." Even aside from the testimony that "shit" meant drugs, there would be no reason for Land to use coded language if he was merely referring to tobacco. Also, an elaborate network of contacts would not be needed to procure cigarettes. Bishel could have walked into any store and purchased cigarettes and tobacco.
The fact that Land and Bishel were talking about more than just tobacco or cell phones is demonstrated in her statement to Land that: "Tony had somethin' for you the other night, but then after we got back here, he used it, so I'm gonna see if he got more . . . ." Again, the statement makes no sense with regard to cigarettes or cell phones, but is understandable if marijuana or methamphetamine was being discussed.
In that same conversation, Land tells Bishel that something is being dropped off at her house, and he tells her that she should tell the deliverer to put it in her mailbox. Land adds: "you can have . . . one half of it, take your couple-take, you know, a couple dollars out of it, you know what I'm sayin'? . . . there should be a bunch of change in there, just go ahead and get-get a couple dollars out of it, all right? I love you, I got to go cook my shit before they cut it off."
The next day, on November 6, after Bishel received the package and passed it on to Kelly, she told Land that, in fact, she did not take anything out of it. After more coded language about whether the package contained Bishel's "medicine," Bishel mentioned that she did not touch the package and even "smelled it." If the package was just cigarettes or cell phones, Bishel would have no reason to be cautiously sniffing it.
Although Land's theory is that Katrones and Kelly were upping the ante by inserting drugs in the drops, the marijuana came directly from Bishel, who had obtained it from Land's contacts. Land is on both ends of the third transaction. He advised Bishel to set things up, gave her permission to keep half, then got a report back from Bishel that the transaction went as planned.
Land is also on both ends of the second transaction between Kelly and Karen. After Kelly complained to Land about Karen's evasiveness, Land apologized and said "[w]e're gonna figure it out over here," i.e. with his confederates in jail. Land told Kelly "[t]his shit shouldn't be this . . . hard." And, that all Karen had to do was to call Kelly and say, " 'Hey, Kelly, I'm supposed to get you something from Greg [Land].' " In her letter to Forester, Karen confirmed that she met Kelly and gave her lighters, tobacco, drugs and paraphernalia.
Abuan was likewise aware of the full scope of the conspiracy. After the first drop, Sergeant McQuoid testified that he saw Abuan personally walk to the package, pick it up, put it in his waistband, and walk away with it. However, at the drop of November 7, Abuan acted much differently. In that instance, rather than walking to the package himself, he pointed to it for another inmate to collect. That inmate then walked to the package, put it into a storage shed, and walked away. During his interview with Sergeant Malone, Abuan readily admitted that he brought in the first package, with the cigarettes. However, when Sergeant Malone mentioned that there was no "dope" in that first package, but that there was dope in the new one Abuan quickly added "that I didn't touch." When Sergeant Malone told Abuan that he was lucky he did not bring that one in, Abuan again repeated. "I didn't touch-that I didn't touch." This reaction showed guilty knowledge by Abuan, and inferably showed that everyone in the conspiracy, including Land, its orchestrator, also knew that that last package differed from the previous ones, because it contained drugs.
There was ample evidence that it was Land pulling the strings, and that he, through his contacts arranged the transportation of the methamphetamine from Karen Myers to Kelly Katrones, and that he knew what he was attempting to smuggle. Similarly, there was substantial evidence that Land through his contacts supplied the marijuana to Suann Bishel, and that he knew what he was attempting to smuggle. In sum, under the settled standard, substantial evidence supported the jury's verdict. Land's knowledge of all aspects of the conspiracy (count 1) was shown beyond a reasonable doubt, as was his knowledge about supplying a controlled substance (count 2), and attempting to bring a controlled substance into jail (count 3). B. Drug Laboratory Fine
Land next complains that the trial court improperly assessed a $200 drug laboratory fine under Health and Safety Code section 11372.5. And that it was erroneously recorded on the abstract of judgment as a Health and Safety Code section 11372.7, subdivision (a) fine, which pertains to a drug program fee.
Health and Safety Code section 11372.5, subdivision (a) provides that every person convicted of certain drug offenses "shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." As Land was convicted of three qualifying offenses, he states that his fine should be $150. As the Attorney General concedes, Land is correct and the abstract of judgment must be modified to reflect the correct amount. C. Custody Credits
Finally, Land claims that his custody credits were erroneously calculated. He received 942 of custody credits, consisting of 628 actual days and 314 in conduct credits. He claims that in light of the fact that he was in continuous custody from the time of his arrest on January 24, 2012 and sentencing on January 16, 2014, he should have received 1086 days credit, consisting of 724 actual days and 362 in conduct credits. The Attorney General argues that Land has forfeited this argument on appeal by failing to present any meaningful argument and by failing to provide an adequate record to support his claims.
In response, Land appears to concede that the record is inadequate and asserts appointed counsel is merely fulfilling her duty of raising all arguable issues. Land further argues that if we do find the record is inadequate, the matter should be remanded to the trial court for further consideration. The problem with this argument is that the calculation of credits was never raised below. It was not raised in defense counsel's sentencing memorandum. Also, at the sentencing hearing, no objection was made when the trial court announced that it was awarding 942 days of credit.
Section 1237.1 provides: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court." As mentioned, no objection to the award of credits was made at Land's sentencing, and no motion for correction in the trial court appears in the record on appeal. Land makes no claim to have filed such a motion.
We acknowledge the principle that "[a] sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citation.]" (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) However, "[i]f a dispute arises as to the correct calculation of credit days, such [dispute] should be presented on noticed motion 'for resolution to the court which imposed the sentence and which has ready access to the information necessary to resolve the dispute.' [Citation.]" (People v. Fares (1993) 16 Cal.App.4th 954, 958.) If Land wishes to present the issue, he should do so in the trial court. (People v. Clavel (2002) 103 Cal.App.4th 516, 519.)
III. DISPOSITION
The judgment is modified to reflect that Land is subject to a $150 laboratory analysis fee under Health and Safety Code section 11372.5, subdivision (a), rather than a $200 fee under Health and Safety Code section 11372.7. The clerk of the superior court is directed to prepare an amended abstract of judgment to include the above modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.