Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. BF118148A
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
APPEAL from a judgment of the Superior Court of Kern County. Eric G. Helgesen, Judge. (Retired Judge of the Tulare S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Jesus Gamboa Martinez, of possession for sale of cocaine (Health & Saf. Code, § 11351) and found true an arming enhancement (Pen. Code, § 12022, subd. (c)). On September 4, 2007, the court sentenced Martinez to an aggregate term of six years, the mitigated term of two years on the substantive offense and a four-year arming enhancement. On appeal, Martinez contends the court erred when it: 1) denied his motions to traverse and quash the warrant and his motion to disclose previously sealed discovery, and 2) admitted certain evidence. We will affirm.
FACTS
The Prosecution Case
Bakersfield Police Sergeant David Chase testified that he was assigned to the HIDTA drug task force. On February 23, 2007, at 7:40 a.m., he arrived with the task force at the mobile home where Martinez lived with his wife Maria on Cecil Avenue in Delano to serve a search warrant. One of the agents yelled out that the officers intended to enter and after waiting 20 to 30 seconds, Chase and other task force members entered the residence. Officers found Martinez’s brother, Victor, lying on a couch in the living room. In the master bedroom, Chase found a one-gallon plastic bag under some clothes in a hamper in the closet. The bag contained an off-white chunky substance that was later determined to be 126 grams of cocaine. The cocaine looked as if it had been recently broken off a kilo of cocaine. Chase also found a loaded .22-caliber rifle and a picture depicting a mythical figure named Jesus Malverde on a shelf in the closet. Over $1,400 in currency was located in the pocket of a jacket hanging in the closet. Underneath the bag containing cocaine, Chase found paperwork with Martinez’s name on it including address labels, a Department of Motor Vehicles form, and a plot and construction permit.
Bakersfield Police Sergeant Robert Calvin testified that he was the second officer to enter the residence and he did not hear any noise inside the trailer after the police officers announced their presence.
For purposes of clarity, Jesus Martinez is referred to as Martinez and his wife, Maria, and brother, Victor, are referred to by their first names.
Victor testified he lived in Los Angeles. He owned the four and a half acre parcel where Martinez’s mobile home was located but had never lived on the property. Victor was in Delano on the day of the search because his daughter was going to give birth. He visited the property one to three times a year and would stay with Martinez.
Bakersfield Police Officer Andrew Ferguson testified he found a plastic bindle containing a substance later determined to be .57 grams of cocaine in a dresser drawer in the master bedroom. He also found a loaded .45-caliber pistol in a cabinet in the master bathroom.
Sergeant Chase testified that he had come across depictions of Jesus Malverde numerous times during the course of narcotic investigations in Kern County. According to legend, Malverde was a Robin Hood-type bandit in Mexico who stole from the rich and gave to the poor and was killed by the Mexican government. Some suspects that Chase had arrested for possession for sale of drugs told him that they prayed to Malverde for protection for their drug smuggling activities and to keep law enforcement away. He also learned from training about the role Malverde played for drug traffickers. However, he acknowledged that some people in Mexico pray to Malverde for prosperity, to recover lost items, and for cures to their illnesses. Chase had seen Malverde depicted in necklaces, photographs, and ceramics of different sizes and he has seen shrines with votive candles dedicated to him. He testified as an expert that the photograph of Malverde was there to protect the narcotics that were located in the closet.
Kern County Sheriff’s Deputy Jason Furnish testified as an expert that there are usually three levels of dealers in cocaine trafficking - the street-level dealer, the mid-level dealer and the large-scale dealer. The street-level dealer is usually someone who is highly addicted to the drug and consumes everything he gets his hands on in a short period of time. Mid-level dealers purchase amounts of the drugs and break them down into smaller amounts for sale and to support their habit or for profit. A large-scale dealer purchases very large amounts of cocaine, sometimes more than a kilo, and then breaks that up into large portions for sale. They usually do not deal with a large number of people. A street-level user might purchase a gram of cocaine for $100 whereas a large-scale dealer might purchase a kilo for $15,000.
With a street-level dealer law enforcement usually finds very small packaging such as small plastic bindles, pay and owe sheets, something to cut the cocaine with, cell phones, weapons, and smaller denominations of currency. With mid-level dealers the indicia of sales are pretty similar but they deal with less people, maybe 15 people at a time, and the currency denominations found are usually $20 or greater. Large-scale dealers have few customers, larger currency denominations of $20, $50 and $100 are seized from them, and the quantities seized are usually more than a gram. A quantity of a quarter pound (approximately 113 grams) or more would be indicative of a large-scale dealer, one ounce to a quarter pound would be indicative of a mid-level dealer, and up to an ounce would be indicative of a street-level dealer. Furnish testified that the quantity of 126 grams of cocaine alone was indicative of upper mid-level or large-scale dealing. Of the various sales indicators, quantity is the one that can stand alone. There is no specific cut off weight that would indicate possession for sale, but if there were it would be much lower than 126 grams, around an eighth of an ounce. A large-scale dealer usually does not have a lot of traffic to his house. Guns and weapons are usually seized in narcotics cases because they are used to protect the dealer’s investment. Furnish testified that a person who was in possession of 126 grams of cocaine, a .22-a caliber rifle, a .45-caliber handgun, and $1,400 in cash possessed the cocaine with the intent to sell. The weight alone would be sufficient for him to reach that conclusion but his conclusion was bolstered by the currency and guns.
The Defense Case
In November 2006, Maria Alamo and her family moved into a trailer on the parcel where Martinez’s mobile home was located. From November 2006 through the end of February 2007 she never saw a large number of vehicles arriving at the green mobile home where Martinez lived.
Sophia Soto was the assistant manager at the Bank of America in Delano. According to Sophia and records submitted into evidence, on February 20, 2007, a check from Chase Bank made out to Jesus and Maria Martinez in the amount of $4,241 and a check in the amount of $3.25 were deposited into an account in Jesus Martinez’s name. Of this amount, $1,000 was received as cash back.
Maria Martinez testified that she had been married to Martinez for 12 years. On the day of the search she left the residence for work at 6:30 a.m. and did not see the large plastic bag containing cocaine prior to leaving. Two years earlier she found a bindle in Martinez’s pants and they argued over it. However, she never saw anything indicating that Martinez was dealing cocaine.
Maria further testified that she owned the black leather jacket in which the $1,400 in currency was found and that the money belonged to her. On February 20, 2007, Maria and Martinez deposited their income tax refund of approximately $4,300 and withdrew $1,000, which she put in her jacket as a savings for herself. The other $400 came from savings that she had accumulated for a couple of months.
In 2004, Maria got the picture of Malverde from her mother who was very sick at the time and had since passed away. Maria was helping clean her mother’s garage one day when she saw Malverde’s picture and commented that the frame was very nice. Her mother asked Maria if she wanted it and gave the frame and picture to her. Maria took the framed picture of Malverde and placed it in the master bedroom closet.
During closing arguments the prosecutor argued, in part, that the picture of Malverde, the guns, money, and the large quantity of cocaine found in Martinez’s master bedroom showed that Martinez possessed the cocaine for sale. He also argued that the large quantity alone was sufficient to show that the cocaine was possessed for sale.
Defense counsel did not argue that the evidence was insufficient to show that the cocaine was possessed for sale or that the quantity alone was insufficient to show possession for sale. Instead, he argued that Martinez’s brother placed the cocaine in the hamper during the approximately 30 seconds the officers delayed in entering the residence after announcing their presence at the door. Defense counsel also argued that the absence of sales paraphernalia indicated that Martinez did not possess the large quantity of cocaine found on the premises and that the cash and guns did not tie him to this cocaine because there were innocent reasons for Martinez’s possession of these items. Defense counsel further argued that the image of Malverde did not tie Martinez to drug trafficking because Malverde’s image is worshiped by many Mexicans for reasons unrelated to drug dealing and he emphasized the innocent explanation the defense provided for the image being in the master bedroom closet.
DISCUSSION
Martinez’s Motions
Martinez contends there was insufficient probable cause for issuance of the warrant, and that the court failed to abide by the required procedures for an in camera hearing by its failure to: 1) establish that the informant privilege was properly asserted; 2) act in a proactive manner to safeguard his rights; and 3) subject the witnesses to challenging cross-examination and meaningful adversarial testing. Thus, according to Martinez, the court erred when it denied his motions to suppress and to quash and traverse the warrant. Martinez further contends the court erred in denying his motion for discovery because his allegations of material misrepresentations and omissions are supported by the requested material. We will reject these contentions.
Factual Background
The affidavit in support of the warrant authorizing the search of Martinez’s residence was ordered sealed by the magistrate who issued the warrant.
On March 16, 2007, Martinez filed a motion to unseal the affidavit and for discovery.
On March 28, 2007, following an in camera hearing, the court ordered that the affidavit remain sealed.
On May 21, 2007, defense counsel filed a motion to unseal the search warrant affidavit, for discovery of various documents described in several paragraphs of the moving papers, and to traverse and quash the warrant.
On June 12 and 14, 2007, the court held an in camera hearing during which it took testimony from Officers Robert Calvin and Jason Furnish, the warrant affiant. At the conclusion of the hearing the court implicitly denied Martinez’s motions when it ordered that the affidavit remain sealed, denied discovery of all the documents requested by Martinez, and found that there was no deception or anything indicating the information provided to the magistrate was not true or correct and that unsealing the affidavit would jeopardize ongoing investigations and put the confidential informant in danger.
Analysis
Mindful that “[t]he issue posed in this case reflects the inherent tension between the public need to protect the identities of confidential informants, and a criminal defendant’s right of reasonable access to information upon which to base a challenge to the legality of a search warrant[,]” we have conducted the review requested by the parties. (People v. Hobbs (1994) 7 Cal.4th 948, 957.)
Nothing in the sealed affidavit, the sealed transcript of the in camera hearing, or the public record suggests any misrepresentation, material or otherwise, by the affiant in applying for the search warrant. (Franks v. Delaware (1978) 438 U.S. 154, 155-156; People v. Hobbs, supra, 7 Cal.4th at pp. 976-977.) We find the trial court exercised sound discretion in reviewing the confidential document, in hearing the in camera witnesses’s testimony, in ordering that the sealed affidavit remain sealed to protect the identity of the confidential informant and ongoing investigations, in denying Martinez’s request for discovery, and in finding the affidavit for the search warrant established probable cause for issuance of the warrant. (People v. Hobbs, supra, 7 Cal.4th at pp. 976-977; People v. Luttenberger (1990) 50 Cal.3d 1, 20-24.) Accordingly, we reject Martinez’s contention that the court erred when it denied his motions to suppress, to quash and traverse the search warrant and for discovery.
The Alleged Erroneous Introduction of Evidence
The court denied defense counsel’s motion in limine pursuant to Evidence Code section 352 to prevent the prosecution from presenting evidence that Jesus Malverde was the “‘patron saint’” of drug traffickers. Martinez contends the court erred in admitting this evidence because: 1) Sergeant Chase did not have sufficient training, expertise, or a proper factual basis to render his opinion; 2) its weak probative value was outweighed by its prejudicial impact because it was cumulative; and 3) it resulted in an unconstitutional inference of guilt by association. We will reject these contentions.
“According to Evidence Code section 801, subdivision (a), expert opinion testimony must be ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact ....’ Further, ‘[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. Whether a person qualifies as an expert in a particular case, however, depends upon the facts of the case and the witness’s qualifications. [Citation.] The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion in [sic] shown. [Citations.]’ [Citation.] This court may find error only if the witness ‘clearly lacks qualification as an expert.’ [Citations.]” (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.)
Here, Sergeant Chase testified that he learned of the significance of Malverde to drug traffickers and their beliefs about him from training and from talking to suspects he had arrested for possession of narcotics with the intent to sell and that he had encountered depictions of Malverde over 50 times during drug investigations. Accordingly, we reject Martinez’s contention that the record failed to establish that Sergeant Chase was not qualified to testify regarding the significance of Malverde to drug traffickers.
Further, besides the evidence relating to Malverde, the prosecution introduced evidence of only three other indicia that the cocaine was possessed for sale -- the quantity of cocaine, the $1,400 found in the jacket, and the two firearms found on the premises. Moreover, Sergeant Chase’s testimony was the only evidence the prosecutor introduced to establish Malverde’s significance to drug dealers. Accordingly, we reject Martinez’s contention that evidence about Malverde was cumulative and that its prejudicial impact outweighed its probative value.
We also reject Martinez’s contention that introduction of the Malverde evidence resulted in an unconstitutional guilt by association because it amounted to the “use of an expert to draw generalizations from the fact of group worship[.]” All the prosecution established through Chase’s testimony is that some drug traffickers in Kern County revere Malverde because they believe he protected them during their drug dealings and from law enforcement detection.
In any event, it is clear from the record that admission of this evidence was harmless. “The erroneous admission of expert testimony only warrants reversal if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citations.]” (People v. Prieto (2003) 30 Cal.4th 226, 247.) Here defense counsel weakened the value of the Malverde evidence to show possession for sale by eliciting from Sergeant Chase that Malverde was viewed by many Mexicans as a Robin Hood-type persona whom they worshiped for non-drug trafficking reasons. Additionally, the prosecution evidence depicted Martinez’s wife as an uninvolved party in any drug activity at the Martinez residence and she testified that she was the one who brought the picture into the residence after it was given to her by her ailing mother who apparently had it because of her own illness.
Further, the strongest evidence that the 126 grams of cocaine were possessed for sale was Detective Furnish’s testimony to that effect and he did not rely on the discovery of Malverde’s picture in the master bedroom closet to reach this conclusion. More importantly, however, Detective Furnish testified that the large quantity alone was enough for him to conclude that the 126 grams of cocaine were possessed for sale and that the guns and cash found in the master bedroom and bathroom merely bolstered this conclusion. The defense did not contest Furnish’s testimony that the large quantity of drugs alone indicated that the drugs were possessed for sale. Instead, defense counsel: 1) attempted to disassociate Martinez from 126 grams of cocaine by providing innocent explanations for the other indicia of possession for sale -- the firearms, the cash, and the picture of Malverde; and 2) argued that Martinez’s brother placed the drugs in the hamper during the 20 to 30 seconds the officers delayed in entering the residence after announcing their presence at the door. However, Martinez’s defense was substantially undermined by the uncontradicted evidence that after announcing their presence, the officers did not hear any noise coming from inside Martinez’s residence as would be expected if someone ran across the floor of a mobile home. Thus, the evidence was overwhelming that Martinez possessed the 126 grams of cocaine found in his room and uncontradicted with respect to the quantity alone being sufficient to establish that it was possessed for sale. Accordingly, we conclude that any error in admitting evidence relating to Jesus Malverde was harmless.
DISPOSITION
The judgment is affirmed.