Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLF004328, Jeffrey Prevost, Judge.
Mark Yanis, 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, Randall D. Einhorn and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury found defendant and appellant Randy Mendoza guilty of willfully bringing marijuana into a state prison (Pen. Code, § 4573, count 1), willfully possessing marijuana while in state prison (§ 4573.6, count 2), and conspiracy to bring a controlled substance into state prison (§§ 182, subd. (a)(1), 4573, count 3). The trial court found true the allegation that defendant had a prior strike conviction. The court sentenced defendant to state prison for a total of six years.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends: 1) the trial court improperly admitted an expert witness’s subjective opinion of what occurred; 2) his counsel was ineffective for failing to lodge a sufficient objection to the expert’s testimony; and 3) he should be awarded presentence custody credits. The People concede, and we agree, that the matter should be remanded for the court to calculate the amount of presentence custody credits defendant should receive. Otherwise, we affirm.
FACTUAL BACKGROUND
On October 28, 2006, Officer William Grant, a correctional officer at the state prison where defendant was incarcerated, was working as a “visiting officer,” monitoring the visiting activities between the inmates and visitors. That day, Julie Ulloa visited defendant at the prison. During the visit, Officer Grant noticed they were laughing excessively, without conversation. He also observed Ulloa pass small objects across a table to defendant, who then picked the objects up and put them in his pants pocket and shirt pocket. Officer Grant described the items as “small round marble-like” objects that were different colors, such as bright red, orange, and green. Officer Grant watched defendant and Ulloa for about 15 minutes and then called Investigative Services Unit Officer Jane Mendoza. Officer Mendoza had been monitoring the visitor’s room from a different location. She confirmed that she had observed the same actions by defendant and Ulloa. She instructed Officer Grant to intervene and take defendant to the “strip-out area” to be searched. Officer Grant approached defendant and took him to the designated area. Officer Grant instructed defendant to remove his clothing so that the officer could conduct a search of defendant’s body and clothing. At that time, defendant told Officer Grant he had something in his pocket. When Officer Grant turned to see what defendant had, defendant quickly stepped toward a toilet and flushed the objects down the toilet. Officer Grant saw what defendant dropped and described them as “little round balls.” Defendant accidentally dropped one of the balls on the ground but quickly picked it up and flushed it down the toilet. The one that fell on the ground was reddish brown and appeared to be covered in a rubber-like material. As the toilet was flushing, defendant put his hand in the water and “swished the water” to assist the spinning and make sure the items flushed. Officer Grant testified that people typically pack things in rubber when they are trying to bring them into prison, because the rubber material is easy to swallow and will not dissolve in one’s stomach.
Officer Mendoza testified that she had extensive training with regard to drug interdiction and identification and the methods used by inmates to bring drugs into prison. She testified that at least 80 percent of drugs in prison are brought in by visitors and passed through the visiting rooms. She further said that narcotics are normally packaged in balloons or condoms, and that inmates will either swallow the balloons, or, if the drugs are in a condom, secrete it in their rectums; these methods allow the inmate to take the drugs to the prison yard without being detected. Officer Mendoza explained that visitors first bring the drugs into the prison by hiding the drugs on their person, such as inside brassieres or vaginal cavities, or sometimes in their waistbands. She said she had found drugs on female visitors approximately 20 times. Officer Mendoza added that once the visitor brings the drugs into the visiting area, the visitor will normally go to the restroom to remove the drugs from wherever he or she is hiding them, put the drugs up his or her sleeve, and then walk back into the visiting room. Then the visitor will put the drugs somewhere on a table in the visiting area where the inmate can reach them.
Officer Mendoza further testified that on the morning of October 28, 2006, she was on duty monitoring the visiting cameras at the prison where defendant was incarcerated. Officer Grant called her and directed her attention to defendant and Ulloa because he thought something was “askew.” Officer Mendoza observed defendant looking around nervously and fidgeting with an open checkerboard box that was on the table where defendant and Ulloa were sitting. The officer saw defendant “putting things in his pocket.” Officer Mendoza suspected that defendant had “hidden contraband,” so she went to the visiting center and asked the officer standing at the door where Ulloa was. He replied that she was in the bathroom. As Officer Mendoza entered the restroom, Ulloa was exiting a stall. When Ulloa saw Officer Mendoza, she said she was cramping and immediately turned and went into the next stall and closed the door. Mendoza did not find anything when she searched the stall Ulloa had just exited. Officer Mendoza heard Ulloa flush the toilet in the second stall and suspected that Ulloa was flushing any remaining contraband. The officer asked Ulloa to accompany her to the table where she and defendant had been sitting. There was no contraband found there. Officer Mendoza then took Ulloa to another location to question and “strip search” her. Officer Mendoza did not find any contraband on Ulloa’s person. However, Officer Mendoza searched Ulloa’s car and found 10 small balls wrapped in balloons, containing a total of 29.3 grams of marijuana. The officer confiscated the balloons and photographed them.
Officer Mendoza testified that she reviewed recordings of telephone calls between defendant and Ulloa which were made on October 21 and October 26, 2006. Tape recordings of the telephone conversations were played for the jury. On October 21, 2006, defendant told Ulloa he wanted her to come and visit, and that he was “obligated to have [her] down [t]here every week.” During the telephone calls on October 21 and October 26, they spoke of “party balloons.” During the first call, Ulloa told defendant she already had 10 filled. Defendant wanted 10 more. During the second call, Ulloa said she had 10 filled and was working on the next 10. Officer Mendoza said defendant and Ulloa were talking in code, and that she believed defendant was saying he needed 10 balloons for the Saturday visit and 10 for the Sunday visit. During the second call, Ulloa said she was scared, and she made a comment about cutting. She also used the word “misty.” Officer Mendoza explained that the word “misty” refers to marijuana leaves, which are sticky and wet and need to be dried and cured. The officer testified that she believed Ulloa was referring to cutting the leaves from the stems of the marijuana. Defendant also told Ulloa he was going to “send $500 home.” After listening to the tapes, Officer Mendoza formed the opinion that defendant and Ulloa were planning to bring drugs into the prison. Her opinion was based on the things they were talking about, such as the party balloons, the cutting and “drying out of the misty,” and the money. Officer Mendoza also mentioned that Ulloa said the party balloons would be dangerous if children swallowed them, which caused Mendoza to believe that narcotics would be inside the balloons.
Finally, the prosecutor asked Officer Mendoza if she formed an opinion as to “what actually occurred” on October 28, 2006, between Ulloa and defendant. Officer Mendoza said: “My opinion is that she had packaged 20 balloons as he asked and even one more larger one. It’s my opinion she took in the smaller balloons on Saturday. She put them in the checker box. Mr. Mendoza took them out of the checker box, put them inside of his pants pockets, walked inside, and got something to drink with the intentions of beginning to ingest them. He was escorted to the back of visiting where he was able to dispose of them by flushing the balloons that he had in his pockets.” Defense counsel then objected “to that last statement flushing [sic] as hearsay.” The court overruled the objection and allowed Officer Mendoza to finish stating her opinion. Officer Mendoza said, “I believe that Miss Ulloa had packaged the other ten balloons per [defendant’s] request and had left them in her vehicle to be taken and secreted on her person to be brought in on the next day, Sunday, the next day of the visit so that she would be able to give those to him.”
ANALYSIS
I. Any Error in Admitting Officer Mendoza’s Testimony Was Harmless
Defendant argues that the trial court erred in admitting the conclusion of Officer Mendoza’s direct examination, during which she opined as to “‘what actually occurred’” on the date of the offense. We agree that the last portion of Officer Mendoza’s testimony was inadmissible but conclude that any error in admitting the testimony was harmless. For the same reason, we conclude that defendant has failed to demonstrate ineffective assistance of counsel (IAC).
A. The Court Should Have Limited Officer Mendoza’s Testimony
“As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]” (People v. Page (1991) 2 Cal.App.4th 161, 187 (Page).) Here, the court should have limited Officer Mendoza’s testimony.
“A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations] . . . [T]he reason for employing this rule is not because guilt is the ‘ultimate issue of fact’ to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case. [Citations.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (People v. Torres (1995) 33 Cal.App.4th 37, 46-47 (Torres).) Specifically, when an expert witness “testifies to conclusions which even a lay jury can draw, the expert is no longer testifying ‘on a question of science, art or trade’ in which he is more skilled than the jury. [Citation.]” (People v. Arguello (1966) 244 Cal.App.2d 413, 418, fn. omitted.)
“In People v. Brown [(1981)] 116 Cal.App.3d 820, the Court of Appeal found error where a police officer testified concerning the definition of a heroin ‘runner,’ and then went further to render an opinion that the defendant in the case was in fact a ‘runner’ under the definition provided. [Citation.]” (Page, supra, 2 Cal.App.4th at p. 189, fn. omitted; People v. Brown, supra, 116 Cal.App.3d at pp. 828-829.) The court concluded: “The term ‘runner’ having been defined for them, the jury were [sic] as qualified as the witness to determine whether Brown was ‘working as a runner . . . .’” (People v. Brown, supra, at p. 829.)
In the instant case, Officer Mendoza was experienced and knowledgeable with regard to drug interdiction and identification, and the methods used by inmates to bring drugs into prison. Thus, she was properly permitted to testify that at least 80 percent of drugs in prison are brought in by visitors and passed through the visiting rooms, that a visitor usually brings drugs into the prison by hiding them on his/her person, that narcotics are normally packaged in balloons, and that once the visitor brings the drugs into the visiting area, the visitor will normally go to the restroom to remove the drugs from wherever he/she is hiding them, put the drugs up his/her sleeve, go back into the visiting room, and put them somewhere where the inmate can reach them. Furthermore, it was proper for Officer Mendoza to testify that she observed defendant fidgeting with the checkerboard box and putting things in his pocket, that after Ulloa saw her in the bathroom, Ulloa went into the stall and flushed the toilet, that she (Officer Mendoza) found marijuana wrapped in balloons in Ulloa’s car, and that she listened to the recorded telephone calls between defendant and Ulloa, during which they talked in code and referred to filling “party balloons,” and used the word “misty,” referring to wet marijuana leaves that needed to be dried and cured.
However, similar to People v. Brown, it was not proper for Officer Mendoza to go further and give her opinion as to what actually occurred during the visit between defendant and Ulloa. Officer Mendoza “so thoroughly educate[d] [the] jury regarding applicable general principles that ‘the factual issues in the case [became] ones that the jurors [could] answer as easily as the expert.’” (Page, supra, 2 Cal.App.4th at p. 188.) In other words, her thorough description of the general principles to be applied in this case “ma[d]e additional (and more specific) expert testimony superfluous.” (Ibid.) Thus, there was no need for Officer Mendoza’s conclusion as to what actually occurred between defendant and Ulloa. The trier of fact was “as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (Torres, supra, 33 Cal.App.4th at p. 47.)
B. Any Error Was Harmless
Even though the court erred by admitting the testimony at issue, any error was harmless because it is not reasonably probable there would have been a different outcome had the error not occurred. (People v. Alvarez (1966) 14 Cal.4th 155, 216; People v. Watson (1956) 46 Cal.2d 818, 837.) In addition to Officer Mendoza’s uncontested testimony regarding the methods used by inmates to bring drugs into prison, her observations of defendant and Ulloa in the visiting room, the marijuana-filled balloons she found in Ulloa’s car, and the telephone conversations between Ulloa and defendant (see ante, § I.B.), Officer Grant testified that he observed Ulloa pass small round objects to defendant in the visiting room, which defendant put in his pockets. Officer Grant further testified that before he could search defendant, defendant flushed the round balls down the toilet. Defendant dropped one of the balls but quickly picked it up and flushed it down the toilet. Officer Grant said the one that fell on the ground was reddish brown and appeared to be covered in a rubber-like material. He explained that people typically pack things in rubber when they are trying to bring them into prison, because the rubber material is easy to swallow and will not dissolve in one’s stomach. Significantly, Officer Grant testified that the small round balls defendant possessed were “very consistent” with the marijuana-filled balloons found in Ulloa’s car. In addition, the jury heard the recorded telephone calls, during which defendant told Ulloa he wanted her to come and visit him, and that he was “obligated to have [her] down [there] every week.” They also discussed how many balloons he wanted from her and that he was going to send her money.
In light of all of the evidence against defendant, any error in admitting Officer Mendoza’s opinion testimony regarding what actually occurred on the date of the offense was harmless.
C. Defendant Has Failed to Demonstrate IAC
Defendant further contends that his defense counsel rendered IAC in failing to lodge a proper objection to Officer Mendoza’s opinion testimony at issue. To prevail on the claim of IAC, defendant must demonstrate both that his attorney failed to act in the manner expected of a reasonably competent advocate, and that it is reasonably probable that a more favorable determination would have been made in the absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-696; In re Cox (2003) 30 Cal.4th 974, 1019-1020.) A failure on either showing will result in rejection of the claim. (In re Cox, supra, at pp. 1019-1020.) For the reasons discussed above (see ante, § I.C.), we conclude it is not reasonably probable that a more favorable determination would have been made in the absence of counsel’s alleged error. Thus, defendant’s IAC claim fails.
II. The Matter Should Be Remanded So the Trial Court Can Calculate Defendant’s Presentence Custody Credits
Defendant contends, and the People concede, that he was entitled to presentence custody credits under section 4019 for the period from the date of his arrest to the date he was sentenced. We agree.
Under section 4019, defendant is entitled to presentence custody credits for all days in custody from the date of arrest through the day of sentencing. (§ 4019, People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Here, the record shows that defendant was on parole when he was arrested for the instant offenses on April 2, 2007. When he was sentenced in this case on November 19, 2007, the court did not award any presentence custody credits. Therefore, the matter should be remanded to allow the trial court to calculate defendant’s credits.
DISPOSITION
The matter is remanded to permit the trial court to calculate defendant’s custody credits. When the court has done so, it shall prepare an amended abstract of judgment setting forth the custody credits and provide a copy of the amended abstract to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.
We concur: MCKINSTER J., MILLER J.