Opinion
A148386
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL HERRERA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR174718)
Daniel Herrera appeals from a conviction of possession of cocaine for sale. He contends the evidence was insufficient to prove the cocaine was possessed for sale rather than for personal use, and the jury was improperly instructed with regard to evidence from which it could infer consciousness of guilt. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on April 15, 2015, with one count of possession for sale of cocaine (Health & Saf. Code, 11351). It was alleged that he had suffered a prior conviction for a serious or violent felony (Pen. Code, §§ 1170.12, subds. (a) - (d), 667, subds. (b) - (i)) and prior prison term (Pen. Code, § 667.5, subd. (b)). After a jury trial, appellant was found guilty as charged and admitted the special allegations. On February 11, 2016, the court denied appellant's motion to strike his prior conviction, sentenced him to the low term of two years in prison, doubled to four years under the "Three Strikes" law, and struck the prison prior.
Appellant initially filed an untimely notice of appeal on April 13, 2016. On June 17, 2016, this court granted appellant's motion for constructive filing of the notice of appeal.
STATEMENT OF FACTS
On February 11, 2015, Napa Police Officers Thomas Keener and Curtis Madrigal conducted an authorized search of appellant's room in his mother's house, a converted attached garage that appellant shared with his girlfriend, Rocio Tepen, and their infant daughter. Neither appellant nor Tepen was home at the time of the search; appellant's mother and her sister were present.
On the top shelf of a shelving unit in appellant's room, between two pairs of men's jeans, the officers found a plastic baggie containing a white powdery substance and a small plastic "coin baggie." It was stipulated at the outset of the trial that the substance found in appellant's room was cocaine and that it was possessed by appellant. The gross weight of the cocaine was 11.8 grams and the net weight was 10.6 grams.
Keener found a healthcare card in appellant's name in one of the pockets of the jeans, and another identification card on the same shelf had appellant's name and photograph on it. On the opposite side of the shelf from the jeans, there was a Samsung cell phone. There were also letters addressed to appellant on the shelf. Keener did not find anything on the shelf that appeared to belong to a woman. On the shelf below there were toiletries and personal care items, some of which women would use.
In a laundry room adjoining appellant's room, and accessible only through appellant's room, the officers found a backpack containing paperwork in appellant's name and a box containing a working digital scale, with four additional unused small plastic coin baggies enclosed by the cover of the scale. The baggies were the same as or similar to the coin baggie containing cocaine found inside the larger bag in appellant's room and appeared to be unused because they contained no residue.
Based on his training and experience, the digital scale led Keener to believe appellant was involved in sales of cocaine, as dealers commonly weigh out their narcotics prior to selling them to determine they are selling the correct amount. It was also significant to Keener that the clean baggies, "completely unused," were the style he had seen before for packaging narcotics, and that the cocaine was "mostly packaged in bulk," with approximately 11 grams gross weight in the larger bag and .8 grams in a separate "press-locked style" baggie similar to the ones found with the scale. The total amount was "pretty large" for Napa although it would be small for "a drug lord" or "pound-level" dealer in Los Angeles County. Four empty baggies were at the lower end of what would be found in a drug search but "[i]t all depends on size and level of the dealer." Asked if there was a reason a user would have four clean baggies, Keener responded, "In my experience, it they've had baggies they've all been used." The indicia Keener would expect to see for sales of narcotics were "packaging, clean packaging, scales, pay and owe sheets, ledgers, currency."
Neither Keener nor Madrigal asked appellant's mother who the cell phone belonged to. No one came to the residence in search of cocaine while the officers were there and there had been no surveillance of the residence; no pay/owe sheets or names or numbers associated with drug sales were found; and no money, weapons or cutting agents were found.
After the search, the police went to Mi Familia Market, where appellant's mother told them he worked, but he was not there. They were unable to locate him for almost a month, then Keener contacted him on March 6, 2015, in the Napa County jail. Appellant told Keener he did not know anything about the cocaine, scale, baggies, and cell phone found in his room. Keener did not believe him because the cocaine was in a stack of men's jeans in his bedroom, identification and other items belonging to him were on the shelf, and nothing on the shelf appeared to belong to his girlfriend. The backpack was in a room adjacent to appellant's and contained paperwork pertaining to him. Appellant did not give Keener a password for the phone.
Keener attempted to search the contents of the cell phone by submitting a request for a forensic download and then later attempting the download, but was told by another detective who knew more about cell phone downloads that he would not be able to access the information because the phone was password protected and encrypted. He did not get the phone's serial number to attempt to determine the owner, and did not remove the memory card and take it to Verizon to see if they could open it.
The day before trial, appellant's girlfriend told Keener that the cell phone was hers but after trying a number of passwords, she was unable to open it. In the nine months since the search, this was the first time anyone suggested the phone belonged to the girlfriend. When the phone was turned on, the screen displayed a picture of a young girl Keener guessed to be about three- or four-year-old girl. Keener continued to believe the phone was appellant's.
The prosecution presented two expert witnesses, both of whom were Napa police officers assigned to a county-wide narcotics task force: Sergeant John Corrigan, who was present at the search in this case, and Officer Alfonso Ortiz, who was not involved with the search but reviewed Keener's report and photographs.
Although Keener described his training and experience in investigating narcotics cases, in particular cases involving possession for sale, he was not offered as an expert witness.
According to both experts, low-level cocaine dealers are typically users who sell to support their habit. Both described similarly the items they would expect a low-level dealer to have: A scale, packaging, small amounts of money, and a cell phone with text messages. Corrigan testified that the most common scale would be a digital scale for weights up to an ounce and typical packaging would be small Ziploc coin baggies roughly half an inch square or pieces of plastic ripped from grocery bags. Often there would be a larger bag of drugs and several small ones ready for sale. According to both experts, almost all dealers have a cell phone and it is very common for a dealer to have more than one, using different phones for business and personal purposes. A dealer typically would have a list of people he or she is selling to, a "pay/owe" sheet, but in 2015, such lists were most often kept on cell phone rather than in writing. Unlike in earlier years, police no longer found cutting agents very often, in part because the cartels did not want the drugs cut since higher purity would mean a higher addiction level. Ortiz testified that the minimum items for a person wanting to sell cocaine in smaller amounts would be a scale and clean packaging.
Corrigan testified that it was not uncommon for a low-level dealer in Napa County to buy half an ounce (14 grams) of cocaine to sell; the cost of that amount at the time of trial ranged from about $700 to $900. A typical addict would use a gram a day or more, which cost around $70 to $100 per day. In undercover work, Ortiz had purchased amounts from two-tenths of a gram, for $20, to an ounce of cocaine. Two-tenths of a gram was "one of the smallest amounts you'll see." Corrigan testified that an "eight ball"—3.2 grams according to Corrigan, 3.5 according to Ortiz—was a common amount for cocaine sales; Ortiz testified this was on the "higher" side for street sales.
Corrigan generally suspected a person was selling cocaine if he or she had over a quarter ounce because a quarter ounce would cost around $500 and a person with a low or average-paying job could not afford to have $500 worth of drugs. He acknowledged that the price of cocaine is highly variable and it was "possible" a quarter ounce could have sold for as little as $200 in Napa County, but stated that "would be on the very low end of the spectrum." Although in the long run cocaine is less expensive when purchased in larger amounts, both experts testified that it was very unusual for users to buy in bulk because of the expense. Corrigan also testified that addicts do not buy large amounts because they cannot control their use. Ortiz explained that there is not a specific amount of cocaine that would indicate it was for sale rather than personal use because dealers might have a large amount if they have recently "re-upped" their supply or a small amount if they have sold most of what they had on hand and have not yet re-upped.
Corrigan testified that the amount of cocaine found in appellant's room, 10.6 grams, was a small amount "[i]n the big picture," on the "very low end" of what Corrigan would say was possessed for sale. It was a "common" amount he had seen possessed for sale, however, and it was "common" for him to see even less than a gram possessed for sale. With a small amount like a gram, to determine whether it was possessed for personal use or for sale, Corrigan would look for things like "pay/owe sheets, money, confession, other items, scale packaging." Since a tenth of a gram is a common one-time dose, 10.6 grams would amount to about 100 doses.
Both experts acknowledged that some purchasers have scales to weigh the cocaine they purchase to make sure they are not cheated, but neither had heard of users weighing out doses for personal use. Corrigan testified that a person who was using but not selling would have small baggies of cocaine but not additional clean baggies. Ortiz acknowledged that small baggies like those used for sales would be a common way for a person to take cocaine with them to use at work or a party.
Corrigan disagreed with defense counsel's questions suggesting reasons for users to buy larger amounts of cocaine, such as difficulty purchasing if their dealer is arrested and limiting the amount of contact they have with potentially dangerous dealers. He testified that in recent years cocaine has been very easily available and that larger transactions tend to be more dangerous. Some dealers of small amounts have a large amount of foot traffic at their residences or the places they sell from while others deliver or use a "runner" to deliver the drugs; use of runners would typically be associated with larger amounts of sales.
Both experts opined that the cocaine in this case was possessed for sale. Corrigan based this opinion that the cocaine in this case was possessed for sale based on the amount and value of the drug, the clean baggies of the size used for smaller amounts, the scale, and the fact that there was a cell phone "next to" the cocaine, indicating the phone was "probably or likely" used to facilitate drug transactions. Ortiz testified that he viewed the amount of cocaine appellant possessed as "a significant amount"; the scale was significant to him because drug dealers commonly keep scales and packaging together in order to weigh out requested amounts or break the cocaine up for sale; and the empty clean baggies were significant because that is how cocaine would be packaged for sale. Ortiz believed the cocaine was possessed for sale despite the facts that neither cutting agents nor lists of names were found.
Ortiz also testified about accessing information on cell phones. He stated that the level of encryption on a cell phone depends on the phone, as does whether it is possible to remove the memory card and extract information from it. Depending on the amount of effort invested and operating system of the phone, attempted access may or may not be successful. Napa County has the capability and technology to "defeat" encryption on "some phones." The information on some can be accessed by the provider, with a search warrant, and sometimes the owner of a phone can be determined through the serial number and phone company records. Ortiz did not know what attempts had been made to access the information on the phone in this case.
The defense witnesses were appellant's mother and his girlfriend, Rocio Tepen. Appellant's mother testified that she was familiar with Tepen's phone and twice told the police officers who took the phone that it was Tepen's, not appellant's. Ms. Herrera testified that Tepen bought the phone a month or two before the search and it had not yet been activated. Tepen had a two-year-old daughter. Ms. Herrera acknowledged that she loved her son and did not want to see him get in trouble.
Tepen testified that she owned a white Galaxy cell phone that she left in the bedroom on the day of the search, although she did not remember the exact place she left it. She had just purchased the phone and was in the process of activating it. Tepen testified that she told defense counsel the phone was hers the day before trial began, after hearing the judge and counsel discussing the phone, then went with Officer Keener to open the phone but was unable to do so because the phone had not been in her possession for eight or nine months and she did not remember the password. Tepen testified that she had gone to the police station to try to retrieve the phone on multiple occasions. The first time she was told to get a signature of release from the district attorney's office but no one was available to talk to her; when she returned after no one contacted her for a month and a half, she was told it was being held as evidence. No one ever contacted her about opening the phone. She acknowledged that she was dependent upon appellant and his family financially and did not want to see appellant get in trouble.
DISCUSSION
"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. Valdez (2004) 32 Cal.4th 73, 104.) . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. (People v. Ramirez (2006) 39 Cal.4th 398, 463.) If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. ([Valdez], at p. 104.) A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Acknowledging that convictions for possession for purpose of sale may be based upon the testimony of "experienced officers" opining "that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual" (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857), appellant argues that the experts' testimony here was unreliable and an unsound basis for concluding appellant possessed the cocaine with the specific intent of selling it because all of the reasons for the experts' opinions were equally consistent with possession for personal use. " 'The chief value of an expert's testimony . . . rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion.' " (People v. Bassett (1968) 69 Cal.2d 122, 141.) We disagree with appellant's view of the evidence.
Appellant sees the amount of cocaine found in his room as a "neutral" factor, noting that both experts testified there was no particular amount to indicate cocaine is possessed for sale rather than personal use and claiming Corrigan vacillated about the amount "generally possessed for sale." The officers' reasoning, appellant urges, would support a conclusion that any amount of cocaine indicates an intent to sell.
Appellant takes the testimony out of context. Ortiz testified there was no particular amount that would indicate possession for sale rather than personal use because of the cycle of re-upping he explained: At any given time, the subject could have recently purchased a supply or be at the low end, in need of re-supply. The point of this testimony was not that a small amount of cocaine would be an affirmative indication of possession for sale but rather that a small amount would not necessarily contradict intent to sell. Corrigan, asked if there was a particular amount that would trigger him to believe cocaine was possessed for sale, testified that it would depend on the person but "typically" he would suspect selling with an amount over 7 grams; asked if 10.6 grams was "relatively, in the big picture, a small amount of cocaine," he testified that it was "the very low end of what I would say is possessed for sales." He further testified that 10.6 grams was a "common" amount he saw possessed for sale, that it was also common to see amounts of one gram or less possessed for sale, and that with small amounts like a gram, he would expect to see other indications of intent to sell such as pay/owe sheets, money, scales, or packaging. Contrary to appellant's suggestion, Corrigan did not imply that possession of a small amount of cocaine would in itself indicate intent to sell.
All the officers viewed the amount of cocaine appellant possessed as more consistent with sales than personal use. Corrigan specifically testified that "[r]eal common" amounts for street-level dealing in Napa were "ounces and half ounces," approximately 28 grams and 14 grams respectively. While appellant portrays the 10.6 grams he possessed as a small amount—one percent, he notes, of the amount taken to indicate possession for sale in People v. Parra (1999) 70 Cal.App.4th 222, 227 —Ortiz testified that he viewed it as a "significant" amount, and Keener testified that this amount was "pretty large" for Napa. Corrigan specifically rejected defense counsel's suggested reasons users might possess larger amounts of cocaine for personal use, such as the "Costco Defense" of buying in bulk to save money and the idea of purchasing more to protect against short support in the event the user's dealer was arrested. After defense counsel suggested that sales of 100 doses would create a lot of "foot traffic," —which was not observed at appellant's home—Corrigan clarified that cocaine was "[v]ery infrequently" sold in an amount as small as one tenth of a gram.
In People v. Parra, supra, 70 Cal.App.4th at page 227, more than one kilogram of cocaine was found behind the dashboard of the defendants' car; narcotics interdiction officers concluded the cocaine was possessed for sale based on its quantity and the lack of drug paraphernalia in the car.
Appellant argues that the scale was not a reasonable basis for the officers' opinion because both acknowledged that users may weigh the cocaine they purchase to ensure they have been given the proper amount, and that the small number of clean baggies found undermines the experts' reliance upon this packaging as an indication of intent to sell. He notes Keener's testimony that this amount of clean packaging was at the low end of what he would expect for a dealer and that residue in coin baggies could be removed by washing them in water; Corrigan's testimony that users would not necessarily carry all their cocaine with them; and Ortiz's testimony that coin baggies would be a common way for a user to take a smaller amount of cocaine with them.
We disagree that this testimony suggests the scale and baggies were equally consistent with personal use as with possession for sale. Keener testified that he could tell the baggies were unused because they contained no residue and the only way he could imagine being able to remove all traces of residue would be to wash the bag with water; while he acknowledged that it might be possible to clean coin bags this way, he stated that he had never heard of anyone doing this. Keener also found it significant that the larger bag of cocaine in appellant's room contained a smaller coin bag holding a small amount of cocaine—a point consistent with Corrigan's testimony that a dealer would often have a larger bag of drugs and several small ones ready for sale. While the expert witnesses agreed that a user might carry smaller amounts in a coin baggie, they testified that a user would not use a scale to weigh out doses for personal use. The baggies here were found inside the cover of the scale, enclosed in the scale's box, suggesting these items were used together. That the experts acknowledged a possible explanation for a user's possession of the scale and clean baggies for personal use does not undermine their testimony, based on their experience, that these items were more consistent with possession for sale.
Finally, appellant contends there was insufficient basis for Corrigan to rely on the cell phone as a basis for concluding the cocaine was possessed for sale because there was insufficient evidence it belonged to appellant or was being used in drug transactions. Appellant argues that the fact the phone was located on the same shelf as the cocaine was insufficient to show it was appellant's, both Tepen and appellant's mother testified the phone was Tepen's and the police did not attempt to access the data on the phone to see whether it in fact supported Corrigan's speculation that the phone was used to facilitate drug sales.
It was not unreasonable for Corrigan to conclude that the phone belonged to appellant. The items on the shelf clearly belonged to him; there was no indication that anything on the shelf belonged to Tepen. The amount of cocaine found, together with the scale and clean packaging, pointed toward possession for sale, and in Corrigan's experience, cocaine dealers were extremely likely not only to possess a cell phone but to possess more than one, with one used solely for business purposes. It was thus logical to connect the phone, found on a shelf that appeared to be in appellant's exclusive use at a time when appellant was not at home, with the cocaine also found on that shelf.
Furthermore, the jury was able to assess for itself the credibility of the evidence that the phone belonged to appellant. In addition to the fact that the phone was found on a shelf with the cocaine and items that appeared to belong exclusively to appellant, Keener testified that during the nine months between the search and the trial, no one contacted him to claim ownership of the phone, and when Tepen attempted to open it the day before trial, she was unable to provide the password despite multiple attempts. Tepen testified that she did try to claim the phone on several occasions, and that she did not remember the password because the phone had been out of her custody for so long. This testimony created a conflict in the evidence, but the jury was not required to accept it. The jury's job was to assess Tepen's credibility and judge her testimony accordingly. Similarly, it was for the jury to resolve the conflict between Keener's and Madrigal's testimony that they did not ask appellant's mother about ownership of the phone and the mother's testimony that she told the police the phone belonged to Tepen. In short, if the jury disbelieved Tepen and appellant's mother, as it apparently did, in addition to the evidence that the phone belonged to appellant based on its location on the shelf with the cocaine and appellant's belongings, there was evidence the phone did not belong to Tepen, the only person who shared appellant's bedroom aside from the infant daughter.
Additionally, we disagree with appellant's assertion that the cell phone was critical to the prosecution's case because the combination of "the amount of cocaine, the clean baggies, and the scale, taken together, does not provide substantial evidence of intent to sell." Ortiz did not cite the cell phone in stating the reasons for his conclusion that the cocaine was possessed for sale. Keener, while not directly asked his opinion on the ultimate question, testified that the digital scale led him to believe appellant was involved in selling cocaine and the significance of the baggies and packaging of the cocaine without mentioning the phone. Ortiz testified that the minimum items necessary for a person wanting to sell cocaine in smaller amounts would be a scale and clean packaging, and Corrigan testified that all a person with 14 grams of cocaine would need in order to sell smaller amounts on the street was packaging material. Considerable testimony was devoted to the amount of cocaine found, and it was clear the experts believed it to more than the amount they would expect to see for personal use and consistent with amounts commonly seen in street sales, as well as that they would not expect a user to employ a scale to weigh out small amounts for personal use. Even without the phone, the case against appellant was strong.
Appellant takes issue with respondent's assertion that appellant's intent to sell was also demonstrated by evidence that he could not have afforded to possess 10.6 grams of cocaine for personal use. The evidence supports respondent's statements that appellant was working at a market and living at his mother's house, sharing a room with his girlfriend and child, who were financially dependent upon him and his family. Appellant maintains, however, that there was no evidence to support the assumption that he could not afford the cocaine because there was no evidence of his income or savings and it could just as easily be assumed that his minimization of expenses by living with his mother allowed him more disposable income to spend on drugs. This issue does not appear to have played a significant role at trial; it was not cited by the experts as a basis for their opinions on appellant's intent and was mentioned only briefly in the prosecutor's closing argument.
I.
Appellant's second contention is that the trial court erred in instructing the jury as follows: "The defendant was required to disclose the contents of any telephone that he owned at the time of the search. [¶] If you find that he did own that phone, and did not disclose the information necessary for the arresting officers to search the telephone, you may, but are not required, to conclude that the telephone contained incriminating information, and the defendant was aware of his guilt. [¶] Consider all of the other evidence in this case before concluding the telephone did belong to [defendant] and may have contained incriminating evidence."
Appellant contends this instruction was erroneous because it was not supported by substantial evidence that the phone belonged to him and because it was an incorrect statement of law in that his mandatory parole condition did not require him to disclose his cell phone data. The first of these challenges is unavailing, as we have already concluded the evidence was sufficient to support a conclusion that the cell phone belonged to appellant. Accordingly, this case is unlike those cited by appellant in which there was no evidence to support the facts from which the inference permitted by the instruction could be drawn. (People v. Hannon (1977) 19 Cal.3d 588, 596-598 [no evidence to connect defendant with conduct instruction described as basis for inference of consciousness of guilt from defense effort to suppress evidence]; People v. Marshall (1997) 15 Cal.4th 1, 39-40 [no evidence to connect man leaving building with crime; defendant's request for instructions based on theory that was not actual killer but aided an unidentified perpetrator in killing the victim based on speculation where no evidence connected person seen leaving building with offense].)
Appellant's challenge to the instruction as an incorrect statement of law is based upon his assertion that the mandatory search condition of his parole (Pen. Code, § 3067, subd. (b)) did not require him to disclose his cell phone data because "such a requirement would constitute an unreasonable intrusion of his privacy rights under the Fourth Amendment." Appellant was on probation as well as parole at the time of the search, but maintains the search must be viewed as a parole search because the "Arrest/Detention/Complaint Form" states the officers went to appellant's residence "to conduct a parole search." As appellant points out, the record does not contain any information about the conditions of his probation or whether he was subject to conditions of parole in addition to the statutory mandatory ones.
Appellant did not challenge the instruction on this ground in the trial court, but a claim that a jury instruction was "not 'correct in law' " may be raised on appeal despite the failure to object below. (People v. Moore (2011) 51 Cal.4th 1104, 1130; People v. Kelly (2007) 42 Cal.4th 763, 791.)
On November 17, 2017, over six months after the briefing on this appeal was complete, appellant filed a request for judicial notice of documents pertaining to the conditions of his probation and parole. Respondent opposed the motion as an improper attempt to augment the record on appeal. (People v. Brown (1993) 6 Cal.4th 322, 332.) Appellant urges that the need to provide documentation of his probation and parole conditions did not arise until respondent asserted in its appellate brief that probation conditions might have authorized a search of cell phone data, and that he was unable to obtain all the documents until after the appeal had been fully briefed. Respondent's brief was filed on April 18, 2017; the request for judicial notice was filed seven months later. Appellant does not explain why it took so long to obtain the documents at issue and made no suggestion in his "Appellant's Reply Brief," filed in May 2017, that he intended to seek to augment the record on appeal or address the significance of these documents for resolution of the issue before us.
Appellant's contention that the documents were necessary only because respondent asserted that he had not proven the search was not authorized by a condition of probation and "do not augment or alter appellant's legal claim in any way" are disingenuous; if this were the case, it is unclear why he would be seeking judicial notice. The argument presented in appellant's briefs on appeal is simply that the general parole search condition required by Penal Code section 3067 did not obligate him to provide his password to the police. No documentation of additional conditions of parole or conditions of probation are required to pursue this claim.
In any event, as will be seen, given our resolution of the issue, the documents are not necessary for our review. The request for judicial notice is denied.
Appellant relies upon United States v. Lara (9th Cir. 2016) 815 F.3d 605, 607, which held unconstitutional a suspicionless search of cell phone data pursuant to a standard probation search condition, finding that the search condition did not unambiguously apply to cell phone data and that the probationer's privacy interest outweighed the government's interest in the data. Appellant contends the same result should obtain here notwithstanding that a parolee's reasonable expectation of privacy is less than that of a probationer. (Lara, at p. 610; Samson v. California (2006) 547 U.S. 843, 850.) Appellant's reliance upon Lara, however, has since been fatally undercut by the Ninth Circuit's subsequent decision in United States v. Johnson (2017) 875 F.3d 1265, 1275, that a warrantless search of a parolee's cell phone did not violate his Fourth Amendment rights primarily because of the parolee's reduced expectation of privacy and the broad scope of the parole search condition under Penal Code section 3067. (See also People v. Sandee (2017) 15 Cal.App.5th 294, 298 [probation search condition encompassed search of cell phone].)
In any event, we are convinced there is no reasonable probability the jury would have rendered a verdict more favorable to appellant if the challenged instruction had not been given. (People v. Watson (1956) 46 Cal.2d 818, 836.) To be sure, if the jury concluded the phone belonged to appellant, the inference the instruction permitted them to draw—that the phone contained incriminating data—would add another piece of evidence against appellant. But the case was not as close, and the phone not as critical, as appellant maintains. Short of disbelieving the testimony of the expert witnesses and Officer Keener, the jury had no basis for inferring that appellant possessed the cocaine for personal use. The evidence indicated that the amount of cocaine appellant possessed, while small compared to a dealer higher up the chain of distribution, was consistent with amounts possessed for street sale in Napa, and considerably greater than amounts generally possessed for personal use. The expert witnesses dismissed defense counsel's efforts to explain the amount of cocaine, scale, and baggies as consistent with personal use, rejecting suggestions such as buying in bulk to save money and washing out coin baggies as contrary to their experience of cocaine users' practices. The prosecutor argued to the jury that the evidence of intent to sell was sufficient even without consideration of the cell phone, and referred to the clean baggies as "the most important evidence in the case." Appellant's attempts to portray the evidence as equally consistent with possession for personal use and therefore insufficient to support the verdict are not convincing.
Respondent asks us to order correction of the abstract of judgment, which he contends incorrectly shows that appellant received an enhancement for his prior strike conviction and erroneously fails to show that appellant admitted he had served a prior prison term for which the punishment was stricken.
Respondent is correct that the abstract of judgment erroneously lists "PC 1170.12(a)-(d)" as an "enhancement" in section 3. Section 3 calls for "enhancements charged and found to be true for prior convictions or prison terms (mainly in the section 667 series)," and directs the court to list all enhancements and "[e]nter time imposed, 'S' for stayed, or 'PS' for punishment struck." Section 1170.12, the three strikes law, is not an enhancement statute. This reference, which is not accompanied by any indication of punishment imposed, stayed or stricken, appears to be an error. The abstract of judgment correctly reflects the three strikes sentence of two years, doubled due to the prior felony conviction under sections 667, subdivision (e)(1), and 1170.12, subdivision (c)(1), by listing the section 11351 conviction, followed by "L" for "term" and four years for "time imposed," and indicating that sentencing was "per PC 667(b)-(i) or PC 1170.12 (strike prior)."
We see no basis for respondent's assertion that the abstract of judgment should list the prison prior because the court intended only to strike punishment. Appellant urged at oral argument (although not in his briefing) that the prior prison allegation was fully stricken, which is consistent with the absence of reference to a section 667.5, subdivision (b), prior on the abstract of judgment. The instructions for section 3 direct, "do not list enhancements fully stricken by the court." The court's remarks at sentencing indicate the prison prior was fully stricken: "Accordingly, the motion under Romero is denied, and sentence is as follows: I will order that Mr. Herrera be committed to state prison for the low term, two years. That's doubled under the strike statute to four years. And I will also, on an understanding Mr. Herrera is youthful, and the prior offense was not an original prison conviction, and he perhaps is not a danger to himself and others, that I'll will strike the prison prior." The court did not suggest it was striking only the punishment for the prison prior. The abstract of judgment thus correctly reflects the sentence imposed.
DISPOSITION
The abstract of judgment shall be corrected to delete the reference to "PC 1170.12(a)-(d)" in section 3. The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.