Opinion
C095117
06-27-2023
THE PEOPLE, Plaintiff and Respondent, v. MARION ELIZABETH GUDIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 16FE010747)
MESIWALA, J.
Defendant Marion Gudis and her son, codefendant Robert Brownfield, operated a marijuana dispensary from their homes. During a search of Brownfield's home, sheriff's deputies found a marijuana grow operation, equipment necessary to manufacture concentrated cannabis using the butane extraction method, and concentrated cannabis. At defendant's home, the deputies discovered business documents related to the dispensary, butane canisters, and the same type of concentrated cannabis.
A jury found defendant guilty of unlawfully manufacturing concentrated cannabis. The trial court placed her on six months of formal probation.
Defendant raises three issues on appeal: (1) insufficient evidence demonstrated that she knew the substance found in her home was concentrated cannabis or that she knew the purpose of the butane canisters; (2) the trial court improperly admitted testimony about robberies at home-based marijuana businesses because it was irrelevant to her offense and was highly prejudicial; and (3) her trial counsel was ineffective for not requesting a limiting instruction about those robberies.
We conclude: (1) the evidence about defendant's active role in the marijuana business was sufficient to support a reasonable inference of defendant's knowledge; (2) the trial court did not err in admitting the testimony about home robberies because it was relevant to Brownfield's child endangerment charge, and this was a joint trial; and (3) defendant's counsel's performance was not deficient because counsel may have had reasonable tactical reasons for not requesting a limiting instruction. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After receiving an anonymous tip about an indoor marijuana grow operation, Sacramento County Sheriff's Deputy Ralph Garcia began investigating defendant's and Brownfield's homes, which were within half a block of each other.
During the investigation, Deputy Garcia determined that a marijuana dispensary operated out of both homes. The dispensary's articles of incorporation listed Brownfield as its agent for service of process but listed defendant's address for receiving service. Vehicles belonging to Brownfield and defendant regularly parked outside both homes. Deputy Garcia also discovered mail and bank records addressed to both Brownfield and defendant in defendant's trash. With this information, Deputy Garcia got a search warrant for both homes.
Brownfield lived in his home with his minor son. Half of Brownfield's four-car garage was converted to an indoor marijuana grow with about 300 mature marijuana plants. A refrigerator and a freezer inside the garage were full of marijuana, processed marijuana, and marijuana byproducts. The freezer also had three-quarters pound of a brown waxy substance.
Brownfield's family room and white trailer parked in his driveway had equipment necessary to manufacture concentrated cannabis using a butane extraction method. The trailer also had almost 900 unopened butane canisters, glass jars with a brown liquid, a vacuum dryer, and a large jug of ethyl alcohol. Brownfield bought the ethyl alcohol, but it was delivered to defendant and defendant signed for the delivery. Inside a bin in the trailer were glass cylindrical tubes with ground marijuana, and coffee filters were secured to the open end of the glass tubes. Similar coffee filters were found nearby. Brownfield bought the trailer but did not register it.
At defendant's home, deputies found many documents related to the dispensary's business, including the dispensary's sales and purchases record, employee timesheets, price lists, and warehouse production charts.
At defendant's home office, deputies found a large amount of edible marijuana, cannabis wrapping paper and preroll cones that were filled with marijuana, vape pen refills, and a small vial with a brown waxy substance. The deputies also found in a file cabinet a freight bill addressed to Brownfield for an oven with pump from a company named Across International. Across International manufactures ovens commonly found in honey oil laboratories.
A refrigerator in defendant's home office had six small glass containers with a brown waxy substance. In the freezer section were coffee filters with a brown waxy substance later determined to be concentrated cannabis and two cases of butane canisters from the same brand found in the white trailer. Although butane is not typically stored in a freezer, some people do because they believe the change in temperature contributes to better extraction results.
The deputies searched defendant's and Brownfield's cell phones. One text from defendant reminded Brownfield to pay his utility bill to avoid the utility company shutting off his gas because "if they do, they have to go in and see everything." One text from Brownfield warned defendant not to "drive like a maniac" in their neighborhood and "draw attention to either of our houses." a series of texts between the two discussed marijuana production weights, scheduling meetings for Brownfield with other marijuana businesses, and arranging marijuana trimming at defendant's house.
The People's expert, Detective Duke Lewis, described the marijuana extraction process using butane. The process begins by packing ground marijuana into glass cylindrical tubes with filters secured on the open end; butane gas is then discharged into the tubes through the open end; when butane passes through the marijuana, it liquefies and extracts the tetrahydrocannabinol (THC), which is the hallucinogenic portion of the plant; the liquid THC goes through the filter and is collected in glassware along with the liquefied butane. The liquid THC is brown while the butane liquid is clear. Once the butane liquid evaporates, the remaining THC becomes a brown waxy substance, which is called honey oil. The honey oil is refined in a vacuum oven connected with a pump.
The process of "winterization" may follow a butane extraction to further refine the concentrated cannabis. During this process, ethyl alcohol is added to the honey oil after the butane evaporates, turning the honey oil into a brown liquid that is commonly stored in glass jars. These jars are placed in a freezer and once the brown liquid solidifies, it is strained out to make the final product.
The People charged defendant and Brownfield with unlawful manufacture of concentrated cannabis (Health &Saf. Code, § 11379.6, subd. (a), count one) and Brownfield with child endangerment (Pen. Code, § 273a, subd. (a), count two). a joint trial, a jury found defendant guilty of count one. trial court placed defendant on six months of formal probation. Defendant timely appealed.
Undesignated statutory references are to the Health and Safety Code.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends insufficient evidence showed she knew the nature of the brown waxy substance or the purpose of the butane canisters found in her freezer. disagree.
A. Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that 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. Edwards (2013) 57 Cal.4th 658, 715.) In doing so, we" 'presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (Ibid.)
B. Analysis
It is unlawful under section 11379.6, subdivision (a) to manufacture or process, "either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance" including concentrated cannabis. (See also § 11054, subd. (d)(13), (20).) This prohibits the use of butane to extract marijuana resin in producing concentrated cannabis known as "hash oil" or "honey oil." (People v. Bergen (2008) 166 Cal.App.4th 161, 166, 172-173.) To prove a violation of section 11379.6, subdivision (a), the prosecution must show that the defendant knew the character of the substance being manufactured. (People v. Coria (1999) 21 Cal.4th 868, 871.)
Here, the evidence showing defendant's role in the dispensary was sufficient to support a reasonable inference that defendant knew the nature of the substance and the purpose of the butane canisters found in her freezer. Defendant managed all aspects of the dispensary's business: she monitored the dispensary's productions, arranged trimming of marijuana plants, scheduled business meetings, packaged marijuana products for sale, accepted delivery for ethyl alcohol used in winterization, and retained records for an oven commonly used to manufacture honey oil. Inside the freezer in her home office were butane canisters of the same brand as those in Brownfield's trailer. These canisters do not need to be stored in a freezer unless one believes it would lead to better extraction results. She also frequented Brownfield's home, where equipment for manufacturing honey oil was stored in an open bin in the family room. Defendant and Brownfield cautioned each other not to draw the authorities' attention to either house.
The jury reasonably could infer from defendant's role in the dispensary and her wariness of the authorities that she was aware of the butane extraction, that she facilitated the process by storing the butane canisters in her freezer to achieve better extraction results, and that she knew that the brown waxy substance was concentrated cannabis produced from the butane extraction. We therefore reject defendant's sufficiency of the evidence challenge.
II
Admission of Evidence
Defendant contends the trial court erred in admitting testimony from Deputy Garcia about robberies that occurred at home-based marijuana businesses because it was irrelevant and highly prejudicial. She asserts the trial court's error violated her "federal and state constitutional rights to due process of law" and requires reversal. We disagree. A. Additional Background
At trial, Deputy Garcia testified that robberies were common at marijuana grow houses and home dispensaries. He investigated a case where an 85-year-old man was killed in his living room during his cohabitant's marijuana transaction. He also investigated a different case involving a robbery crew that targeted marijuana grow homes. Defense counsel objected under Evidence Code 352 and requested it be treated as a continuing objection to Deputy Garcia's testimony regarding marijuana-related robberies. The trial court overruled the objection and denied the request. Deputy Garcia then finished his answer by adding that the crew executed one of its members following an argument over the distribution of proceeds.
The prosecutor next asked Deputy Garcia to describe a home invasion. Deputy Garcia responded that the intruders may either force their way in or enter the home disguised as a marijuana seller or purchaser. Defense counsel interrupted and requested a sidebar, which the trial court denied. Deputy Garcia continued that such invasions could lead to the injury or killing of family members who live in the house. Defense counsel objected that the testimony called for speculation, lacked foundation, and was irrelevant. During a sidebar conference, defense counsel further stated the testimony was inflammatory and he could not properly cross-examine Deputy Garcia. The trial court overruled the objection, finding the evidence was not speculative and it was relevant to the child endangerment offense charged against Brownfield, and defense counsel could sufficiently cross-examine Deputy Garcia. It admonished the jury to disregard the testimony about the execution.
After the trial ended that day, defendant's counsel joined Brownfield's counsel in his motion for mistrial on the ground that the jury was "poisoned" because Deputy Garcia's testimony related to executions was "not a bell that c[ould] be unrung" even with the limiting instruction. Defendant's counsel further requested that the court strike Deputy Garcia's testimony about the home invasions in its entirety because cross-examination was impossible without sufficient information about the cases he described. The trial court denied the motion and request.
During closing, the prosecutor argued that Deputy Garcia's testimony about home invasions, along with testimony from other witnesses, demonstrated that the marijuana business made Brownfield's home dangerous for his son. The prosecutor made no mention of this testimony when discussing defendant's offense.
B. Analysis
We begin by noting what issues are preserved on appeal. Defendant's timely relevancy objection in the trial court preserved her Evidence Code section 352 claim on appeal. But to the extent she may be understood as arguing on appeal that due process required exclusion of the evidence for a reason different from her trial objection, that claim is forfeited because she did not object on due process grounds in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 436.) Nevertheless, we will consider a "narrow due process argument on appeal" that the trial court's error in overruling her objection "was so serious as to violate due process." (Ibid., fn. omitted.) With this understanding in mind, we turn to defendant's issues that are preserved on appeal.
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The trial court has the authority to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." (Evid. Code, § 352.) "[I]n a joint criminal trial, if admission of evidence of significant probative value to one defendant would be substantially prejudicial to a codefendant the remedy is not exclusion of the evidence but rather a limiting instruction or severance." (People v. Greenberger (1997) 58 Cal.App.4th 298, 351-352; accord, Evid. Code, § 355.) We review the trial court's decision to admit evidence for abuse of discretion. (Greenberger, at p. 352.)
In the joint trial here, the People needed to prove that defendant and Brownfield both unlawfully manufactured concentrated cannabis and that Brownfield endangered his child. The prevalence of robberies at home-based marijuana businesses was highly probative to prove the child endangerment charge against Brownfield because it tended to show his marijuana business made his home dangerous for his son. Defendant does not dispute this but contends that the testimony was unnecessary "in light of the plethora of proof that Brownfield was guilty" of child endangerment. But neither defendant's nor Brownfield's counsel made a cumulative evidence objection. Thus, defendant has forfeited her cumulative evidence claim. (Evid. Code, § 353, subd. (a).) And because the evidence was highly probative to prove the child endangerment charge, the trial court did not err, constitutionally or otherwise, in admitting Deputy Garcia's testimony regarding home robberies in this joint trial. (See People v. Partida, supra, 37 Cal.4th at p. 436.)
III
Ineffective Assistance of Counsel
Defendant contends her trial counsel's failure to request an instruction limiting the jury's consideration of the testimony about home robberies "constituted ineffective assistance and resulted in a denial of [her] rights to due process of law." We disagree.
A defendant bears the burden of proving ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish constitutionally inadequate representation, the defendant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. (Ibid.)
We defer to trial counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 925.) On direct appeal, "competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." (People v. Gray (2005) 37 Cal.4th 168, 207.)
Here, there are possible satisfactory explanations why defense counsel chose not to request a limiting instruction. Deputy Garcia's testimony about the robberies was brief, and defense counsel had already presented his objections before the jury. He could have reasonably decided that a limiting instruction would needlessly draw the jury's attention back to this short yet unfavorable testimony. (People v. Carter (2003)
30 Cal.4th 1166, 1223; People v. Henderson (2020) 46 Cal.App.5th 533, 549.) We thus reject defendant's ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.
We concur: MAURO, Acting P. J., KRAUSE, J.