Opinion
C082301
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. NEACAIL PATRICK MURDOCK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM043238)
A jury found defendant Neacail Patrick Murdock guilty of unlawfully manufacturing a controlled substance and the trial court granted defendant three years of felony probation.
Defendant raises three claims on appeal. First, he contends the trial court violated his constitutional rights by failing to follow the procedures mandated by People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) in considering his motion to unseal the search warrant affidavit. Second, he contends the trial court erred in denying his motion to quash and traverse a search warrant because he was not named in the warrant so there was no probable cause to search his room or seize his property. Third, defendant contends the trial court erred in admitting into evidence text messages found on defendant's cell phone.
We conclude any error in the procedure by which the court reviewed defendant's motion to unseal the search warrant affidavit was invited, defendant forfeited his claim of error on the motion to quash and traverse the search warrant, and the court did not abuse its discretion in admitting into evidence defendant's text messages. We affirm the judgment.
BACKGROUND
On June 23, 2015, a narcotics enforcement team lead by Chico Police Department Sergeant Curtis Prosise executed a search warrant at defendant's residence. The warrant directed the officers to search the "single family residence" located at 1501 West 5th Street, including "any and all rooms, basements, garages, storage containers, . . . and surrounding grounds used in connection with said premises; . . ." The warrant also directed the officers to search "the person of Matthew Henson Gregg" as well as any vehicles under his "dominion and control."
The relevant search warrant is BSW No. 15-257, not BSW No. 15-251, as indicated in defendant's opening brief.
The warrant identified numerous items for which the officers should be searching. Included in the list were "illegal drugs and manufacturing equipment: [¶] Marijuana, concentrated cannabis, hashish ([also known as] Butane Honey Oil), all associated chemicals needed to manufacture Butane Honey Oil and all precursor chemicals, including without limitation: butane, acetone, grain alcohol, . . . [¶] . . . Any articles of personal property tending to establish and document illegal drug manufacturing . . . ."
At the residence, the officers made contact with Joseph Van Horn and Gregg. Inside, the officers found evidence that butane honey oil (BHO) was actively being manufactured. The officers also found and documented numerous items in the home that are used to manufacture BHO: butane, marijuana, and vacuum tubes. They also found BHO. It was clear to the officers that three BHO labs were being operated inside the house. One of those labs was operating inside defendant's bedroom. Inside defendant's bedroom, the officers confiscated defendant's cell phone and downloaded its contents.
The People subsequently charged defendant, Gregg, and VanHorn with manufacturing a controlled substance other than PCP. The three codefendants were tried together.
Prior to trial, on September 9, 2015, defendant filed two separate pleadings in the trial court: (1) a "notice of motion and motion to quash and traverse search warrant" and (2) a "notice of motion and motion to unseal search warrant affidavit." Defendant filed points and authorities in support of these motions, those points and authorities are identical, both include the following language:
"This motion is neither a motion to traverse, nor a motion to quash, but is filed as a preliminary matter, in the exercise of [defendant's] constitutional and statutory rights, intended to secure information to which [defendant] is constitutionally and statutorily entitled, prior to the filing of such motions. Note further that [defendant] does not, at this time, move to establish the identity of any informer(s) cited in the affidavit. [¶] . . . [¶] The motion presently before the Court is not what is commonly referred to as a 'Hobbs motion,' which is a motion to quash and/or traverse, where a defendant must argue blind against a sealed affidavit. The motion presently before the Court is instead a preliminary application preceding any filing of such a motion. The motion presently before the Court has been accepted as valid and legitimate by courts in this area for at least the past decade. [Citations.] [¶] . . . [¶] Counsel therefore respectfully requests that the Court review the affidavit, including the sealed attachment, and disclose to [defendant] any and all portions that do not identify any confidential informers relied upon therein. Once such a review has been performed [defendant] can examine the unsealed material, and then move to quash and/or traverse the warrant."
The People opposed defendant's motions in a pleading titled, "People's Opposition to Defense Motion to Disclose Informants and Unseal Warrant." In addition to arguing defendant's motion failed on the merits, the People argued the motion was untimely.
At the hearing on defendant's motions, counsel reiterated she filed two separate motions: a motion for disclosure and a motion to traverse and quash the search warrant. Counsel argued the motions were timely filed and with respect to the merits, said, "I made all my arguments in the motions. I'll submit it.
"THE COURT: Okay, on the two motions?
"[Defense Counsel]: On the pleadings, yes."
The court then invited argument from the People and the People responded: "The People are prepared to submit on the response.
"THE COURT: Okay. Well, that was easy. Now comes the hard part. All right, let me make sure I've read everything.
"[Prosecutor,] did your opposition address the motion to quash and traverse?
"[The Prosecutor]: I believe it fundamentally does. The motion to quash and traverse obviously [is] based upon the Court's ruling of whether or not there's probable cause there.
"THE COURT: Well, yeah, you entitled it Motion to Disclose Informants.
"[The Prosecutor]: Yes. I apologize.
"THE COURT: No, that's okay. I thought you were replying to both. Let me take another look."
The trial court then ruled the motions were timely filed and "as to the merits of the motion, the Court denies each of the motions based upon the authority submitted by [the prosecutor]; particularly those that talk about on the one hand an informant has to be shown that the informant can provide -- could possibly provide exculpatory material. And on the others, I am denying it. So they're both denied."
Prior to trial, defendant also objected to text messages, downloaded from defendant's cell phone, that the People intended to introduce at trial. The first text exchange reads as follows: " 'Could you bring a half G, of oil too?'. . . I got 40 . . . for." Defendant responds, "Yes."
The second text exchange reads: "Yooo, . . . could I get another 40, . . . sack,[?] [¶] . . . [¶] . . . No wax this time." Defendant responds, "Yes; can you give me about an hour?"
The third text exchange reads: "Yo . . . , man. Any chance I could get a G of wax if you h-a."
Defendant: "Where you at?"
"I'm over at Billy's, but I am -- I'm about to head to work and --."
Defendant: "I have it right now. Want me to swing it by?"
"If you don't mind, man."
Defendant: "How long 'til you leave?"
"15 minutes."
Defendant: "K, I'll be there in 7, . . . [¶] . . . Or less."
The fourth text exchange reads: "Joe's asking about the hash. Should I pick up two m-o"
Defendant: "Just blew that batch two days ago. [¶] . . . Needs time. [¶] . . . [¶] So buy two more cases."
Defendant: "Yes, if you give me the [$], I can go pick them up."
Defendant objected on the ground the text messages were more prejudicial than probative because "they are evidence of sales" and defendant was not charged with selling BHO. The court deferred its ruling.
During trial, defendant's counsel also argued the text messages were cumulative. The People argued the text messages were evidence defendant knew what BHO was, knew it was illegal, and was familiar with the manufacturing of BHO. The court was not persuaded by defendant's arguments and admitted the text messages. Detective McNelis then testified that, based on his experience and expertise, the exchanges include language that demonstrates a working knowledge of manufacturing BHO.
Ultimately, the jury found defendant guilty as charged. The trial court then found this to be an unusual case, suspended imposition of sentence, and granted defendant three years of formal probation.
DISCUSSION
A.
Motion to Unseal the Affidavit
Defendant contends the trial court violated his constitutional rights by failing to follow the procedures outlined in People v. Martinez (2005) 132 Cal.App.4th 233, 240-241 (Martinez), for reviewing his motion to unseal the affidavit. The People contend defendant forfeited the issue by failing to object in the trial court and any error in not following those procedures was invited. We agree any error in the procedure by which the court reviewed defendant's motion to unseal the affidavit was invited. Consequently, defendant's claim on appeal fails.
The procedures in Martinez are the same as those outlined in Hobbs. (See Martinez, supra, 132 Cal.App.4th at pp. 240-241, quoting Hobbs, supra, 7 Cal.4th at pp. 973-975, 977.)
"The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his [or her] behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake." (People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201.)
In the trial court, defendant moved to unseal the search warrant affidavit. In support of that motion, defendant filed points and authorities in which he unequivocally stated he was not seeking Hobbs review of his motion. Defendant specifically described the motion as a "preliminary application," which may lead to a Hobbs motion later. He cited several unpublished cases in support of this process for filing a "preliminary" motion. Then, at the hearing on defendant's motion, counsel submitted "[o]n the pleadings," adding no further argument and making no request for an in camera review under Hobbs, supra, 7 Cal.4th 948 (or Martinez, supra, 132 Cal.App.4th 233). On this record, there can be no doubt counsel's decision was intentional and tactical, if not well-advised.
He inexplicably made the same argument in support of his motion to quash and traverse the search warrant.
Having made the tactical decision to tell the trial court he was not seeking review of the search warrant affidavit under Hobbs, supra, 7 Cal.4th 948, defendant cannot now claim on appeal that the trial court erred in failing to follow the procedures laid out in Hobbs. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 48-49.) Accordingly, defendant's claim on appeal must fail.
B.
Motion to Traverse and Quash the Warrant
Defendant further contends the trial court erred in denying his motion to traverse and quash the warrant because the public portions of the warrant and affidavit did not provide sufficient probable cause to search defendant's room or to seize defendant or his property. Specifically, defendant argues he was not named in the warrant, so presumes he was not mentioned in the confidential attachment. Thus, he argues, the warrant lacked sufficient probable cause to extend the search into his bedroom and to seize his property.
As an initial matter, we note that in making this argument on appeal, defendant did not include any citations to the record. Likely, defendant did not include any citations to the record because he did not actually raise this claim in the trial court. Indeed, in support of his motion to quash and traverse the search warrant, defendant filed points and authorities in which he argued the motion was actually not a motion to quash and traverse the search warrant but a "preliminary application" to avoid having to "argue blind against a sealed affidavit." Because he did not raise the claim in the trial court, he cannot raise it now on appeal. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [arguments not asserted in the trial court are forfeited and will not be considered for the first time on appeal].) The claim fails in any event.
In support of his claim, defendant relies on several cases including People v. MacAvoy (1984) 162 Cal.App.3d 746 (MacAvoy); U.S. v. Greathouse (D. Ore. 2003) 297 F.Supp.2d 1264, 1275-1275 (Greathouse), and Mena v. City of Simi Valley (9th Cir. 2000) 226 F.3d 1031, 1038 (Mena). These cases do not further defendant's claim on appeal. Each of these cases addresses a multi-unit residence, where evidence established separate bedrooms in the residence had locked doors and were treated as separate living units. (Mena, at pp. 1035, 1038; MacAvoy, at pp. 753-754; Greathouse, at pp. 1274-1275.) The challenged search warrants thus did not extend to those locked rooms. (Mena, at pp. 1035, 1038; MacAvoy, at pp. 753-754; Greathouse, pp. 1274-1275.)
Defendant incorrectly cites this case as "U.S. v. Greenhouse (9th Cir. 2003) 297 F.Supp.2d 1264." --------
Here, there was no evidence the house identified in the search warrant was anything other than a single unit. There was no evidence it was a fraternity house or that defendant's bedroom was a separate studio apartment with a locked door and its own bathroom and appliances. (Mena, supra, 226 F.3d at pp. 1035, 1038 [rooms were actually studio apartments, separately locked]; MacAvoy, supra, 162 Cal.App.3d at pp. 753-754 [fraternity house, each room assigned to an individual, is locked, and there were separate keys].) Nor was there any evidence that several, unrelated individuals lived in the house, each keeping their living quarters separately locked, or if there was, the officers executing the warrant should have known that was the housing situation. (See Greathouse, supra, 297 F.Supp.2d at pp. 1274-1275.)
Thus, the search warrant extended to the entire house -- including defendant's bedroom. Accordingly, even had defendant preserved this claim for appeal, on this record it would fail.
C.
Evidentiary Ruling on Text Messages
Defendant also claims the trial court abused its discretion in admitting the text messages downloaded from his cell phone. Specifically, he argues the text messages were unduly prejudicial. We conclude there was no abuse of discretion.
" 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' (People v. Karis (1988) 46 Cal.3d 612, 638.)" (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)
To convict defendant of manufacturing a controlled substance, the People were required to prove defendant knew he was manufacturing a controlled substance. (CALCRIM No. 2330.) The text messages admitted into evidence demonstrated defendant's knowledge that he was manufacturing BHO. The evidence was therefore probative on an issue in dispute. It was not inflammatory when compared with evidence of the BHO lab operating in defendant's bedroom, it was not confusing, and it was not time-consuming. In short, it was not unduly prejudicial. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-741 [listing factors to consider].) Further, "The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value. [Citations.]" (People v. Horning (2004) 34 Cal.4th 871, 900; see People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) There was no abuse of discretion here.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
RENNER, J.