Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 07SF0625, Steven L. Perk, Judge.
Keith H. Rutman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Richard M. Johnston appeals from his conviction for the possession of methamphetamine, marijuana, and drug paraphernalia found in his motel room. He contends the trial court erred by permitting the deputy sheriff who found the contraband to testify as to his opinion that it belonged to Johnston. We agree the testimony was erroneously admitted, but we find the error to be harmless and affirm the conviction.
FACTS
At about 9 p.m. on May 4, 2007, Orange County Deputy Sheriff John Murray went to the Dana Marina Inn in Dana Point to conduct a search of Johnston’s room. Johnston worked at the motel as a handyman, had lived in room 22 for about one year, and Murray had spoken to him there many times. Murray testified Johnston at one time had a roommate, but the roommate had been arrested two or three months earlier, and Johnston was living in the room by himself for the last couple months.
Johnston concedes the search was pursuant to a Fourth Amendment waiver.
As Murray drove up to the motel, he saw a man standing in the doorway of Johnston’s room, talking to Johnston who was standing inside the room. When Murray stopped his car to park, the man quickly walked away.
When he got to Johnston’s door, Murray knocked and the door opened right as another officer arrived. Murray spoke with Johnston, who indicated the motel room was his, and who permitted Murray to conduct a search.
Standing inside the doorway of the motel room, Murray could see the entire area of the room. He described the room as being approximately 200 square feet comprised of a small living area and a little alcove with one bed. The room had a television stand with a television set on it, a dresser, a chair next to the bed being used like a nightstand, a shelving unit at the foot of the bed, one closet, and a private bathroom. There was a mattress propped up against the wall, but only the bed appeared to be used currently. There were many personal items in the room including clothes, a briefcase, paperwork, and personal hygiene items in the bathroom. Paperwork found in the room, and inside the briefcase, bore Johnston’s name. There were no other occupants in the room, and Johnston gave no indication that anyone else lived there.
In the living area, Murray found a light bulb box in plain sight on the floor right next to the briefcase. Murray looked in the box and found a small piece of a white crystal-like substance he immediately suspected was methamphetamine. As it turned out, the substance was in fact about one-and one-half doses of methamphetamine. Murray found a small ziploc baggie, the kind commonly used to package methamphetamine, in plain view on the chair next to the bed. A glass methamphetamine pipe was sitting out on top of the dresser. The pipe bore signs of use including burn marks and white residue inside. Murray found a broken, but obviously used, methamphetamine pipe in the closet along with various articles of clothing. There was a small gram scale, the kind commonly used to weigh narcotics, and a small amount of marijuana (about one gram) both sitting out on the shelving unit in front of the bed.
It was stipulated the substance retrieved from the light bulb box was 141 milligrams of methamphetamine, and Johnston knew what methamphetamine was and that it is a controlled substance.
Johnston told Murray the light bulb box on the floor belonged to him, but the methamphetamine inside did not. Johnston denied knowing anything about the methamphetamine pipes found in the room and had no idea how they got there. Over Johnston’s objection, Murray testified that in his opinion, the drugs and drug paraphernalia found in the room belonged to Johnston because it was Johnston’s room, and “[h]e was in the room by himself.”
An information charged Johnston with felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 1), misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 2), and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)) (count 4). The information also alleged pursuant to Penal Code section 667.5, subdivision (b), that Johnston had served a prior prison term for a conviction for violating Health and Safety Code section 11378. A jury found Johnston guilty on all counts, and in a bifurcated trial, the court found the prior conviction allegation to be true. Johnston was placed on three years formal probation.
Count 3, a misdemeanor, was dismissed by the prosecution.
DISCUSSION
Johnston contends the trial court erred by allowing Murray to testify as to his opinion the drugs and drug paraphernalia found in the motel room belonged to Johnston. He argues the testimony was tantamount to an opinion about Johnston’s guilt. The Attorney General candidly concedes “it would have been preferable if... Murray had not given his opinion that the drugs and drug paraphernalia belonged to [Johnston].” But the Attorney General argues the error was harmless. We agree.
Expert opinion is admissible in the trial court’s discretion when the opinion relates “to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); People v. Bolin (1998) 18 Cal.4th 297, 321-322.) Furthermore, expert opinion testimony “is not objectionable because it embraces the ultimate issue to be decided by the trier of fact” so long as it is otherwise admissible. (Evid. Code, § 805; People v. Doss (1992) 4 Cal.App.4th 1585, 1596.)
Courts have long recognized experts can assist juries in understanding the physical evidence of crime. (See, e.g., People v. Newman (1971) 5 Cal.3d 48, 53 [in narcotics possession cases, experienced officers may opine narcotics are held for sale based on quantity, packaging, and normal use by an individual], disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.) Courts have also recognized expert testimony may help a jury understand certain aspects of criminal behavior. (See, e.g., People v. Valdez (1997) 58 Cal.App.4th 494, 506 [expert testimony on “culture, habits, and psychology” of criminal street gangs].)
But courts have drawn the line at obtaining an expert opinion the defendant is guilty of the crime charged. For example in People v. Brown (1981) 116 Cal.App.3d 820, the trial court erroneously allowed an expert to opine the defendant was working as a “runner” for a drug dealer. The term “runner” had been defined for the jury and thus the jury was as qualified as the expert to determine whether the defendant was in fact culpable as a “runner.” (Id. at p. 829.) And in People v. Torres (1995) 33 Cal.App.4th 37, 46, the court held it was error to permit an expert to testify on the definition of the crimes of robbery and extortion, and to testify as to his opinion the crime of robbery had been committed.
Here, the jury was instructed on the elements of the possession offenses charged, including that as to each, the prosecution must prove the defendant “unlawfully possessed” the contraband and “knew of its presence.” Accordingly, the jury was instructed that possession and knowledge of presence were elements of the offenses. Resolution of those issues was not beyond the common knowledge of jurors and thus not appropriate matters for expert testimony.
Nonetheless, while this kind of expert testimony is prohibited, its erroneous admission is rarely prejudicial. We review the improper admission of evidence pursuant to the standard established by People v. Watson (1956) 46 Cal.2d 818, 836 (People v. Alvarez (1996) 14 Cal.4th 155, 216), under which we may not reverse the judgment unless we conclude it is reasonably probable there would have been a different outcome had the error not occurred.
“[T]he error in admitting expert testimony where none is needed may be entirely harmless where the expert really adds nothing to what must be apparent to the jury’s common sense.” (People v. Hernandez (1977) 70 Cal.App.3d 271, 281.) Here, there was abundant evidence Johnston knowingly possessed the contraband. The items were all found in a motel room occupied by Johnston and where he had lived for over a year. The methamphetamine was inside a light bulb box, of which Johnston claimed ownership, on the floor next to a briefcase containing his papers. One of the pipes, the gram scale, and the marijuana were all in plain view in the room. The other pipe was found in the closet containing more personal belongings.
Johnston argues it was possible for the jury to have found he had a roommate (given there was a mattress propped against the wall in the room) who had left the contraband in the room and he was unaware of its presence. But even had the jury believed someone else originally placed the contraband in the room, we do not believe it would have reached a different result concerning Johnson’s knowledge of its presence and his right to exercise dominion and control over it. “‘[A] conviction [for unlawful possession of narcotics] will be sustained if the accused had the immediate right to exercise dominion and control over the known narcotic even though his possession is constructive [citation] or joint with that of another person. [Citations.]’ [Citation.]” (People v. Shoals (1992) 8 Cal.App.4th 475, 495.) The jury was instructed as to each offense that “[t]wo or more people may possess something at the same time[,]” and that “[a] person does not have to actually hold or touch something, to possess it. It is enough if the person has (control over it/or the right to control it), either personally or through another person.”
Murray’s testimony as to his opinion concerning ownership of the contraband, added nothing to what was already apparent from the facts: regardless of who originally put it there, the contraband was in Johnson’s room either in plain view or within his immediate dominion and control. The jury was given instructions advising that it alone was to decide the facts (Judicial Council of California Criminal Jury Instructions (2008) CALCRIM Nos. 200 & 222), and it was instructed it was not bound by an expert’s opinion. (CALCRIM No. 332). We cannot say it is reasonably probable there would have been a different outcome had the error not occurred.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., MOORE, J.