Opinion
F060829 Super. Ct. No. MCR035903
01-03-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSE RUIZ HERNANDEZ, Defendant and Appellant.
Kari E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen and David D. Minier, Judges.
Judge Detjen presided over trial, Judge Minier presided over sentencing.
Kari E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jose Ruiz Hernandez appeals from his convictions for transportation and possession of methamphetamine. (Health & Saf. Code, §§ 11379, subd. (a) & 11377, subd. (a), respectively.) He contends 1) insufficient evidence shows he had the requisite knowledge of the presence of methamphetamine in the car or in the baggy it was found in, and 2) the trial court erred in failing to instruct the jury on evidence of flight as consciousness of guilt, in accordance with Penal Code section 1127c. For the reasons discussed below, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On the afternoon of May 8, 2009, Madera Police Officer Matthew Tuckness was investigating a stolen vehicle parked in a parking lot off an alleyway when he observed appellant, driving alone in a red car, pull into the alleyway entrance about 50 yards away. Officer Tuckness testified he made eye contact with appellant and then appellant "quickly stopped the vehicle and began to turn it around to leave." He did so even though there was room in the alley to pass by Officer Tuckness and his marked patrol vehicle.
Thinking that appellant was thus involved with the stolen vehicle, Officer Tuckness radioed for his sergeant to execute a traffic stop on the red car. Sergeant Johnny Smith, already in close proximity, was able to pull in front of appellant before he had left the alleyway, so that appellant's car was facing the sergeant's marked watch commander vehicle. Detective Jason Valdez was in the vehicle with Sergeant Smith.
Sergeant Smith testified that appellant attempted to maneuver his car around the police vehicle, but that Sergeant Smith repositioned his car to block him. Appellant then stopped his car, but remained inside, with the engine on. At one point, he moved the wheels of the car toward the officers. Officer Tuckness testified appellant had appeared to be "nervous when he saw us and was trying to flee the scene." Sergeant Smith testified appellant had "seemed like he wanted to get out of there pretty badly."
Detective Valdez testified he was the first to make contact with appellant, although all three officers on the scene approached appellant on foot while he was in the car and commanded him to turn the engine off and exit the vehicle. Appellant knew Detective Valdez and Sergeant Smith from a previous investigation where he had been the victim of a shooting in 2001.
Appellant appeared "irate" and "upset" from the outset of the encounter, and was yelling and cursing at the officers. Detective Valdez attempted to tell appellant why they were stopping him, but appellant remained uncooperative. In response to appellant's lack of compliance with their commands, the police officers threatened to deploy the taser on appellant. Only then did appellant turn off the car and open the car door.
As appellant was exiting the car, both Officer Tuckness and Sergeant Smith looked down to the driver's seat floorboard and saw in plain view in the middle of the floorboard a plastic bindle (baggy) commonly used to wrap drugs, and in which Officer Tuckness observed a white crystal substance he recognized as methamphetamine. The substance was later determined to be 1.53 grams of methamphetamine, an "absolutely" useable amount "many times over."
Appellant immediately accused Sergeant Smith of planting the drugs when he saw the officers pick up the bindle from the car. He testified to the effect that Sergeant Smith's possible motive for doing so was that Smith did not like him, and as a result, Smith had also not assisted in investigating appellant's 2001 shooting. Appellant offered no other explanation for the bindle's presence in the car. He testified he did not see the baggy on the floorboard and did not know how it got there. No evidence was brought out indicating how long the car had been in his possession, although he did tell officers the car belonged to his father. He testified he had his own vehicle, but gave no explanation as to why he was driving his father's car that day.
Appellant testified he had believed there were numerous police cars in the alley when he pulled in, blocking his path, which prompted him to turn his car around. He did not want to have any sort of contact with the police. He also testified he had been upset initially out of fear, but then continued to remain upset because he felt he was getting no explanation as to why he was stopped.
The prosecution also introduced evidence of appellant's prior experience with methamphetamine. A parole officer testified that in February 2007, in the course of conducting a parole search of a home, appellant was found at the residence and subjected to a pat-down search where a methamphetamine pipe with methamphetamine residue was found in his front pocket. The officer testified appellant admitted to using methamphetamines. He also asked appellant if there was any methamphetamine in the pipe. Appellant responded, "Yeah, just look at it. Can't you tell?" The court admonished the jury that this evidence was offered for the limited purpose of the issue of whether or not appellant knew of the presence of the alleged controlled substance and knew of the substance's nature or character as a controlled substance.
Appellant admitted while testifying during trial that he knew what methamphetamine was, albeit stating his knowledge stemmed from watching television. He presented no other witnesses for his defense.
The jury instructions specified the requisite elements for finding appellant guilty of each offense. Identical second, third and fourth elements indicated the jury had to determine beyond a reasonable doubt that appellant knew of the controlled substance's presence, and its nature or character as a controlled substance, and that the controlled substance was methamphetamine.
The trial court declined, without explanation, to instruct the jury on evidence of flight as it relates to consciousness of guilt.
During deliberations, the jury requested to hear appellant's testimony read back in its entirety. It also inquired why there was no video of appellant's arrest, a point appellant had brought up in his testimony. An hour or so after hearing appellant's testimony read back to them, and after a total of approximately three and one-half hours of deliberations over two days, the jury reached its verdict of guilty on both counts.
Appellant was sentenced to an aggravated term of four years on the transportation count and a concurrent three-year aggravated term on the possession count. He also received a one-year enhancement under Penal Code section 667.5, subdivision (b) for failing to remain out of prison for five years after his last conviction.
DISCUSSION
I.
SUFFICIENT EVIDENCE SUPPORTS THE JURY'S DETERMINATION THAT
APPELLANT KNEW THE METHAMPHETAMINE WAS IN THE CAR.
Although it is somewhat unclear, appellant appears to argue both that insufficient evidence supports the implicit finding that appellant knew the bindle was in the car, and that he knew that the substance in the bindle was methamphetamine. We disagree with both assertions.
Standard of Review
We apply settled standards. "'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]'" (People v. Williams (1971) 5 Cal.3d 211, 214.)
Our Supreme Court has commented in the past, "no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant's knowledge of the presence of a narcotic in a place which he had access, but not exclusive access, and over which he had some control, but not exclusive control." (People v. Redrick (1961) 55 Cal.2d 282, 287 (Redrick).) However, the court explained, "where the sufficiency of the evidence might otherwise have been doubtful, it was strengthened by a showing of consciousness of guilt" (id. at pp. 287-288, citing to, among other cases, People v. Magdaleno (1958) 158 Cal.App.2d 48, 52 [defendant fled when he saw the police and gave dubious purported exculpatory explanations which could be found intentionally false]).
"The credence and ultimate weight to be given the evidence of the various particular circumstances are of course for the trier of fact, and 'It is the trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' [Citation.]" (Redrick, supra, 55 Cal.2d at p. 289.)
Discussion
In Redrick, the defendant lived in and managed a rooming house owned by Henry Smith. There was a locked storeroom in the house, where police discovered ten bindles of heroin. Smith and defendant were the only two people with official access to the key to the storeroom, but the key hung in Smith's nearby store and conceivably others could have accessed it, and thus the storeroom. Defendant admitted to an officer that he was involved in drugs, but denied that the heroin was his. He also denied possessing the key to the storeroom at the time of the search. The court found that admission of possession of narcotics "at about the time of the charged offense" was insufficient by itself to show he knowingly possessed the ten bindles of heroin found by the police, but that coupled with other evidence of appellant's statements and conduct that permitted an inference of consciousness of guilt - and therefore knowledge of - the presence of the narcotics in the storeroom, sufficient evidence supported the possession conviction. (Redrick, supra,55 Cal.2d at pp. 288-289 [noting defendant told police he had not had the key for three weeks, but told Smith he had the key a few days before the police search, and that defendant would have been expected to know the whereabouts of the key given he was manager of the house, but failed to explain how the key went missing].)
In People v. Newman (1971) 5 Cal.3d 48 (Newman), disapproved on other grounds by People v. Daniels (1975) 14 Cal.3d 857, 862, the defendant was convicted of possessing a restricted dangerous drug for purpose of sale, and appealed on grounds of insufficient evidence. In that case, the defendant was stopped for speeding. Defendant exited from his car and walked back to meet the officers. When he went back to his car to get his registration, an officer followed him and detected marijuana smoke. After arresting the defendant, the officer shined a flashlight into the car and observed a marijuana seed on the left rear floorboard. An officer also sat in the driver's seat and observed a sealed envelope on the tape deck below the dashboard, inside of which were eight plastic bags with white powder later determined to be methedrine. (Newman, supra, at p. 51.)
Defendant testified, denying he had any knowledge of the presence of the envelope or its contents and that he had borrowed the car. He also admitted he had seen other plastic bags similar to the ones found by the police officer and that he knew they contained "some kind of drug." He further admitted that in the past he had been in the presence of persons who used or injected drugs and that he was familiar with the smell of marijuana. (Newman, supra, 5 Cal.3d at p. 52.)
The court noted that substantial evidence supported defendant's conviction, although the court reversed the conviction on other grounds. (Newman, supra, 5 Cal.3d at p. 52.) The court concluded, "In the instant case, sufficient circumstantial evidence existed from which the jury could infer that defendant possessed the drugs and had knowledge of their presence, for the envelope containing the drugs was located and visible on the tape deck below the dashboard of the car defendant was driving and was therefore immediately accessible to him and subject to his exclusive or joint dominion and control. [Citation.]" (Id. at p. 53.) Moreover, "[g]iven the fact that defendant possessed and was aware of the presence of the drugs, defendant's knowledge of their character was sufficiently established through his own testimony that he had seen similar packages and knew that they contained some kind of drug, and that he had seen drug users inject themselves with dangerous drugs and narcotics." (Ibid.)
Appellant attempts to distinguish this case from Newman, supra, 5 Cal.3d 48 by pointing out 1) that the defendant in Newman stepped out of his car and met the police officers before they arrived at his car, thus exhibiting suspicious behavior from the outset, contrary to appellant here who did nothing suspicious or evasive throughout the encounter; and 2) that the drugs in Newman were wrapped distinctively and that the defendant there had testified he had previously seen that specific distinctive packaging of drugs in the past. We are not persuaded.
As we understand the record, the jury's implicit determination that appellant knew of the presence of the bindle in the car came down to a credibility determination. The jury could have believed the police officers' testimony that they saw the bindle on the floorboard, or, the jury could have believed appellant's testimony that the police planted the bindle. Based on their verdicts, we can only conclude the jury chose to believe the police officers. Given it was in plain view, it was reasonable to infer appellant saw the bindle either when he got in the car, or that he dropped the bindle on the floor himself. The jury could have reasonably inferred appellant was attempting to distract the police officers by acting upset and irate while he attempted to conceal the drugs, but failed to do so before being threatened with being tased. The jury could have also reasonably inferred appellant's attempt to quickly leave the scene evidenced consciousness of guilt of possessing the drugs.
Appellant's knowledge of the character of the drugs in the bindle was sufficiently established through his own testimony that he knew what methamphetamines looked like, had been previously found with a methamphetamine pipe, and admitted to using methamphetamine in 2007. (See Newman, supra, 5 Cal.3d at p. 53.)
Substantial evidence supports the implicit finding that appellant had the requisite knowledge of the presence of the bindle in the car, and the nature of the substance therein.
II.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON EVIDENCE OF
FLIGHT WAS HARMLESS ERROR.
Appellant asserts the trial court erroneously denied defense counsel's request to instruct the jury on how to evaluate evidence of flight as evidence of consciousness of guilt, and such error resulted in a violation of his federal constitutional due process rights. Respondent concedes the error, but argues it was harmless given the strength of the evidence of guilt apart from flight. We agree with respondent.
Standard of Review
"The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.] 'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.)
Moreover, it is well established that, "the '"correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."' [Citations.]" (People v. Hudson (2009) 175 Cal.App.4th 1025, 1028.)
Penal Code section 1127c states, "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
"'An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' [Citation.]" (People v. Visciotti (1992) 2 Cal.4th 1, 60.)
Here, police officers testified they observed appellant "quickly" turn the car around, "in a hurry," or in a manner that suggested he "wanted to get out of there pretty badly," where they believed he was attempting to flee the scene. Appellant attempted to maneuver his car around Sergeant Smith's vehicle, but Sergeant Smith blocked him. He turned the wheel toward the officers in a way that made Officer Tuckness believe he was capable of running over them.
The prosecutor in his closing arguments commented, "[appellant] knew of its presence. Number one, by his actions, how he saw the police and basically seems to have a guilty mind, wants to turn around, get out of there. Why? Because he has illegal substances in his car." The instruction on evidence of flight was warranted given the testimony of the police and the prosecutor's closing argument.
"Any error in omitting this instruction was clearly harmless, however. The logic of the inference it described was plain, and was argued to the jury by counsel." (People v. Hartsch (2010) 49 Cal.4th 472, 503 [discussing the trial court's failure to give an instruction on evidence of flight].) Similarly here, the logic of the inference was plain, and the prosecution argued it to the jury. Defense counsel failed to rebut or otherwise counterbalance the prosecution's assertion in his own closing argument. Given the strength of the evidence, discussed above, we conclude the error was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
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Franson, J.
WE CONCUR:
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Levy, Acting P.J.
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Cornell, J.