Opinion
G057284
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. PABLO LAGUNAS, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Charles J. Sarosy, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18WF1480) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael Leversen, Judge. Affirmed and remanded with directions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Charles J. Sarosy, Deputy Attorney General, for Plaintiff and Respondent.
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A jury convicted Pablo Lagunas of possession for sale of methamphetamine (Health & Saf. Code, § 11378), possession for sale of heroin (§ 11351), and misdemeanor possession of controlled substance paraphernalia (§ 11364, subd. (a)). After the jury's verdict, Lagunas admitted the four prior prison terms alleged pursuant to Penal Code section 667.5, subdivision (b). The trial court sentenced Lagunas to four years in county jail.
All undesignated statutory references are to the Health and Safety Code.
On appeal, Lagunas challenges the sufficiency of the evidence supporting his conviction of possession for sale of heroin. He also contends the prosecutor in closing argument improperly equated "common sense" with reasonable doubt, thereby lowering the burden of proof. Neither argument has merit.
Lagunas correctly argues, however, a recent statutory change mandates a remand to the trial court for resentencing. Under Senate Bill No. 136, effective January 1, 2020, the one-year prior prison term enhancement applied to Lagunas's sentence was improper because his prior conviction was not for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). In light of this statutory change, we remand for resentencing, but otherwise affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident
In the early morning hours of June 30, 2018, Officer Chris Earle and his partner, Officer Lazenby, were driving on patrol when they saw Lagunas riding a bicycle without a front light, a violation of the Vehicle Code. The officers slowed their car and Lagunas looked back at them and quickly turned into an apartment complex parking lot. The officers followed and when Lagunas stopped his bicycle, they stopped their car. Officer Lazenby asked Lagunas to get down from the bicycle and he complied. Lagunas was wearing a backpack and a baggy shirt that covered his waistband.
Officer Lazenby began a patdown search of Lagunas. As Lagunas lifted his arms above his head, Officer Earle noticed a glass smoking pipe, commonly used to smoke methamphetamine, sticking out of Lagunas's left rear pants pocket. Officer Earle removed the pipe from Lagunas's pocket and found it coated in drug residue. Officer Earle asked Lagunas if he had anything illegal on him, and Lagunas responded he had drugs in the pockets of his pants.
Officer Lazenby continued the patdown and found a clear plastic baggie in each of Lagunas's front pants pockets. One baggie contained a white crystalline substance, later determined to be 26.5 grams of methamphetamine. The other baggie held a dark-colored, tar-like substance, found to consist of 2.9 grams of heroin and fentanyl. Lagunas had a digital scale in his backpack. The officers arrested him. B. The Information, Trial and Sentencing
The district attorney charged Lagunas with possession for sale of methamphetamine (count 1), possession for sale of heroin (count 2), and misdemeanor possession of controlled substance paraphernalia (count 3). The information also alleged four prior prison term convictions. (Pen. Code, § 667.5, subd. (b).) The prior prison terms were for two violations of Vehicle Code section 10851, subdivision (a), (unlawful taking or driving of a vehicle), and two violations of Penal Code section 666.5, subdivision (a)/Vehicle Code section 10851, subdivision (a), (unlawful taking or driving of a vehicle with a prior conviction).
Lagunas pleaded not guilty to all counts and denied the additional allegations.
At trial, Detective Jason Johnson testified as a narcotics expert for the prosecution. Johnson explained officers decide whether a person possesses drugs for personal use or for sale based on the quantity of drugs on hand as well as on the person's possession of a scale or scales, packaging material, pay and owe sheets, and cell phones. Each case, however, is different and officers do not need to observe all of these items present to conclude the suspect possesses the drugs for the purpose of sale. Johnson opined a seller of heroin typically sells heroin in quantities of half a gram to one gram, an amount sufficient for a heroin user to obtain a high. Using one-tenth of a gram as an average use amount, Johnson calculated 2.9 grams of heroin would comprise 29 single uses. He further explained one gram of heroin would sell for between $40 to $80 on the street. Johnson also noted that other substances can be added to heroin to increase the quantity of heroin available.
In regard to methamphetamine, Johnson calculated there would be 265 single uses in 26.5 grams of methamphetamine, based on an average use amount of one-tenth of a gram. He opined 26.5 grams of methamphetamine would be worth about $150 to $300 when sold on the street.
In Johnson's view, 26.5 grams of methamphetamine was a "large amount" for a "street-level person" to possess. Based on his experience, he believed 26.5 grams of methamphetamine was too large an amount to be possessed only for personal use. On the other hand, he considered "about three grams" of heroin "kind of a small amount" which could possibly be possessed for personal use. Johnson opined that a person's possession of both methamphetamine and heroin indicates the person is selling both. Johnson further stated that, in his experience, he has not encountered a "straight [drug] user" who carried a scale.
In response to a hypothetical question the prosecutor posed with facts identical to those of this case, Johnson opined that under the totality of the circumstances, the heroin and methamphetamine were possessed for the purpose of sale. Pressed as to his level of certainty about that conclusion, Johnson stated he was 99.8 percent sure the suspect in the hypothetical possessed the heroin for the purpose of sale. He explained his based his opinion on the "mere fact that he has a scale, a large quantity of methamphetamine with a smaller quantity of heroin[.]"
The defense presented the testimony of its own narcotics expert, Nick Morrow, a court-qualified expert witness and former Los Angeles County Sheriff's Department patrol deputy and detective. Based on a hypothetical question about a person in possession of 26.5 grams of methamphetamine, Morrow opined it would be reasonable for the person to possess that amount for personal use because purchasing a large amount can result in a price reduction and ensure consistent dosing and potency. In answering another hypothetical question involving a person with 26.5 grams of methamphetamine and 2.9 grams of heroin, Morrow opined that the amounts involved did not by themselves indicate the person intended to sell those drugs; rather, Morrow stated, those amounts were consistent with someone having a significant drug use habit. Morrow said "additional items" would have had to be found on the person to conclude he or she had an intent to sell, such as prepackaged bindles in small amounts ready for sale, or "excess packaging materials" such as empty baggies.
Morrow testified a suspect's possession of a scale per se does not establish an intent to sell drugs because drug users commonly possess a scale to check the accuracy of the amount sold to them. Morrow acknowledged, however, possession of a scale could indicate the drug possession was for the purpose of sale. As for pay and owe sheets, Morrow explained street-level drug dealers "will rarely" use them because they are more appropriate for drug trafficking organizations. Consistent with Detective Johnson's testimony, Morrow noted other substances, such as fentanyl, can be added to heroin to increase the quantity of heroin available for use. Morrow explained heroin users tend to sample a small amount of the drug when they buy from an unknown source; he also stated two-tenths of a gram is a frequent starting dose.
Morrow concluded, based on a hypothetical question with the same facts as present in this case, there was only evidence of possession for personal use, not possession for sale. Morrow challenged Johnson's assertion he was 99.8 percent certain the hypothetical individual with 26.5 grams of methamphetamine, 2.9 grams of heroin, and a scale possessed both drugs for the purpose of sale. Morrow said it was "impossible" to reach that level of certainty about a suspect's intent based on those facts alone. Morrow agreed 26.5 grams of methamphetamine, 2.9 grams of heroin, or a scale, can each independently be possessed for the purpose of drug sales if accompanied by "other indicia" of sales.
The jury convicted Lagunas of all three counts. Thereafter, Lagunas admitted the four prior prison terms.
The trial court sentenced Lagunas to a total of four years in county jail, consisting of the midterm of three years for count 2, plus a consecutive term of one year for one of the four prior prison term enhancements. The court ordered the other three prison priors stricken for sentencing purposes only. The court set the sentences for count 1 (the midterm of two years) and count 3 (30 days) to run concurrently with the sentence for count 2.
II.
DISCUSSION
A. Substantial Evidence Supports the Conviction of Possession of Heroin for Sale
Lagunas challenges his conviction for possession of heroin for sale, arguing there was insufficient evidence he had the requisite specific intent to sell the heroin found in his pocket. (See People v Parra (1999) 70 Cal.App.4th 222, 225-226 (Parra) [prosecution must prove defendant possessed controlled substance with specific intent to sell it].) The argument lacks merit.
In assessing the sufficiency of the evidence, we apply the substantial evidence standard of review. Under that standard, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) The trier of fact is entitled to draw reasonable inferences from the evidence, and we should "'"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Rayford (1994) 9 Cal.4th 1, 23, quoting Johnson, supra, 26 Cal.3d at p. 576.) "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.)
Whether Lagunas possessed the heroin for his personal use or for sale was a hotly disputed issue at trial, with each side relying almost entirely on opinion testimony from its own narcotics expert. Courts have long recognized opinion testimony from experienced law enforcement officers that "narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use" is sufficient evidence of intent to sell. (See People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; accord, Parra, supra 70 Cal.App.4th at p. 227.)
The prosecution's expert, Detective Johnson, opined in response to a hypothetical question based on facts identical to those present here that the hypothetical suspect possessed the 2.9 grams of heroin with the intent to sell it. The defense expert disagreed sharply with Johnson's conclusion, opining that the same facts supported the conclusion the suspect possessed the heroin for personal use. In convicting Lagunas of possession of heroin for purpose of sales, the jury obviously found Detective Johnson's testimony more persuasive. We will not second guess the jury's determination to credit Detective Johnson's opinion Lagunas possessed the heroin with the intent to sell it.
Lagunas argues Detective Johnson's testimony does not support the jury's finding on intent because Johnson's opinion was internally inconsistent ("Johnson considered [2.9 grams of heroin] to be 'kind of a small amount'") and "equivocal." The argument lacks merit. As for the contention Johnson believed Lagunas's heroin stash too small to evidence an intent to sell, Johnson clarified he did not base his opinion on the amount of heroin Lagunas possessed. Rather, Johnson believed the combination of factors present — possession of a scale, a large amount of methamphetamine, and smaller amount of heroin — evidenced an intent to sell both the methamphetamine and the heroin. Moreover, Johnson countered any impression his opinion was "equivocal" by testifying he was "99.8 percent sure" the suspect in the hypothetical question possessed the heroin for the purpose of sales.
Lagunas points to a section of Johnson's testimony which seemed to undercut his opinion Lagunas intended to sell the heroin, with the following rather garbled thoughts: "'I would probably - I mean, if I actually interviewed this person or if I saw them, I would then look for or ask them do they use heroin, you know, but if we're lumping it all together, I'd go with sales, both. . . . I mean, maybe this guy is going to say, "Oh, you know, I use heroin, but I sell meth," or, "I use meth and I sell heroin." You never know.'"
We conclude substantial evidence supports the jury's finding Lagunas possessed the heroin for the purpose of sales. B. The Prosecutor Did Not Argue a Lessened Burden of Proof
Lagunas contends the prosecutor's statements during closing argument "equated reasonable doubt with common sense," thereby lowering the prosecution's burden of proof and violating Lagunas's constitutional rights to due process. The Attorney General contends Lagunas forfeited this argument by failing to object at trial. Rather than decide the issue based on forfeiture, we conclude Lagunas does not prevail on the merits.
Lagunas contends the prosecutor repeatedly told the jury during closing argument jurors should use "'common sense'" in determining whether Lagunas was guilty beyond a reasonable doubt. The opening brief points to the following portion of the prosecutor's closing argument to illustrate this purported "error": "'And use your common sense. Okay? In a few moments, I'm going to talk to you a little bit about the law says to use your common sense and I'm going to talk to you about using that in conjunction with the evidence. But use your common sense when you're looking at the evidence. That's your job. [¶] When you determine what happened here, the evidence you have is witness testimony, three witnesses, their credibility, meaning how they testified as much as what they testified to, any exhibits, and your common sense.'"
Lagunas also cites the following additional statements by the prosecutor to demonstrate he improperly equated "common sense" with reasonable doubt: "'So pretty common sense based on the facts, using your common sense, one, two, and three for Count 3 proven.'" "'Remember, work together. [Twelve] of you make a decision together. You'll be instructed don't flip a coin, don't guess. But use your common sense. Weigh the evidence presented to you and make a decision.'"
Lagunas asserts these comments from the prosecutor "denigrated the reasonable doubt standard" and "essentially told the jury to ignore the legal definition of reasonable doubt provided by the trial court and instead equate reasonable doubt with common sense." We disagree. The record does not support this interpretation of the prosecutor's closing argument.
Importantly, at several points during his closing argument, the prosecutor explained the meaning of reasonable doubt consistent with the trial court's instructions to the jury. The prosecutor never told the jury to ignore the reasonable doubt standard of proof and simply rely on common sense in deciding Lagunas's guilt. Instead, the prosecutor's repeated exhortation to jurors to "use your common sense" was nothing more than advice on how to approach the task of evaluating the evidence. Laguna's trial counsel obviously agreed with that advice because he, too, in his closing argument urged jurors to use their common sense. He told them: "Look, just like the district attorney said, I absolutely want you guys to use your common sense. Use all of the knowledge that you have." "It's time for you to decide very soon. Use your common sense and your assessment of all the evidence to determine if charges are proven beyond a reasonable doubt."
There is no merit to Lagunas's contention "'[i]mproper comments'" by the prosecutor "'so infect[ed] [the] trial with unfairness that they create[d] a denial of due process.' (People v. Watkins (2012) 55 Cal.4th 999, 1031.)" We find nothing improper in the prosecutor's comments about common sense, and no unfairness in the trial. C. Lagunas is Entitled to Resentencing
Lagunas argues recent statutory changes mandate a remand to the trial court for resentencing. We agree.
On October 8, 2019, the Governor signed Senate Bill No. 136, which amended Penal Code section 667.5, subdivision (b), to provide for a one-year enhancement to a felony prison sentence for each prior prison term served for a sexually violent felony as defined in Welfare and Institutions Code section 6600, subdivision (b), and to eliminate this enhancement for prison terms served for all other felonies. The amendment became effective January 1, 2020. Because the amendment effectuated by Senate Bill No. 136 is ameliorative, it applies retroactively to all cases not yet final in which the enhancement was imposed for any prison term served for an offense that was not a sexually violent felony. (In re Estrada (1965) 63 Cal.2d 740, 744-745.)
Prior to the effective date of this amendment, Penal Code section 667.5, subdivision (b) provided for a one-year enhancement of the prison term for a new offense for each separate prior prison term served for "any felony," with an exception not applicable here. --------
The Attorney General concedes Lagunas's one-year prior prison term enhancement should be stricken because none of his prior convictions qualify as a sexually violent offense. Consequently, we remand the matter for resentencing. (People v. Hill (1986) 185 Cal.App.3d 831, 834 ["When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme"]; accord, People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.)
III.
DISPOSITION
The judgment is remanded to the trial court for resentencing consistent with this opinion. Following resentencing, the court is directed to issue an amended abstract of judgment and forward it to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.