Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. KA086226 Mike Camacho, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant Stollmeyer Myrie.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant Kirk Powell.
Lauren E. Eskenazi for Defendant and Appellant Reginald Ward.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Lance E. Winters and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, Stollmeyer Myrie, Reginald Ward and Kirk Powell, appeal from their convictions for marijuana possession for purposes of sale. (Health & Saf. Code, § 11359.) Mr. Ward was also convicted of transporting marijuana. (Health & Saf. Code § 11360, subd. (a).) Mr. Ward argues the trial court improperly: denied his suppression of evidence motion; failed to excuse a juror; and instructed the jurors with a modified version of CALCRIM No. 372. Mr. Myrie argues the evidence was insufficient to sustain his conviction and the trial court improperly admitted evidence of his prior offenses. All defendants argue that they are entitled to additional presentence conduct credits pursuant to Penal Code section 4019. Mr. Ward and Mr. Powell join in the arguments of their codefendants where they accrue to their benefit. We affirm the judgments with modifications.
All further statutory references are to the Penal Code except where otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 2 p.m. on March 9, 2009, Los Angeles County Sheriff’s Detective William Campbell began watching a residence at 1512 Cedarbreak Avenue in Rowland Heights. Detective Campbell saw a Ford sport utility truck in the driveway. At approximately 4:20 p.m., Detective Campbell saw Mr. Ward and Mr. Powell come out of the house. Both Mr. Ward and Mr. Powell got into the Ford truck and drove away. Soon thereafter, a green Toyota automobile pulled into the driveway of the house. Anthony Howell was driving the Toyota. Mr. Howell opened the garage door with a remote control. Once the garage door was open, Detective Campbell saw a white van with advertising across the back doors inside the garage. Mr. Howell then closed the garage door, parked the Toyota in front of the house and got out of the car. Mr. Howell walked inside the house. A short time later, the Ford truck returned to the driveway. Mr. Ward and Mr. Powell were still in the Ford. The driver immediately pulled out of the driveway and drove away. Within 10 minutes the Ford truck returned to the driveway. Detective Campbell continued to watch the house until approximately 6:30 p.m.
Mr. Howell, a fourth defendant, is not a party to this appeal.
Detective Campbell resumed watching the house at approximately 8:10 a.m. on March 10, 2009, the next morning. The Ford truck was still in the driveway of the home. At approximately 10:15 a.m. the green Toyota parked in front of the house. Mr. Howell and Mr. Myrie got out of the Toyota and went into the house. At approximately 12:15 p.m., Mr. Powell came out of the house. Mr. Powell got into the Ford truck and backed into the street. The garage door opened immediately thereafter. The white van was then backed out of the garage and driven away. Detective Campbell ordered the white van stopped by other deputies. Detective Campbell also requested that a drug sniffing dog come to the scene. Detective Rob DeYoung continued to watch the house.
Detective Campbell drove to where the white van was stopped. An investigator identified only as Detective McBride walked around the van with a dog. The dog alerted at both the back bumper and the passenger’s sliding side door. After the sliding door was opened, the dog alerted to the eight boxes inside the van. Detective Campbell cut a hole in the top of one of the boxes. The back side of the box had foam glued to it. Foam peanuts were inside the box. Amongst the foam peanuts was a black package wrapped in grease and newspaper. Inside the black package was marijuana. All eight boxes contained the same layers and black wrapped marijuana. The marijuana bricks weighed approximately 30 pounds each. Detective Campbell found a rental agreement inside the van. The van was rented by Mr. Ward on March 9, 2009. A U-Line catalog in the van featured packing materials such as peanuts, boxes and wrapping.
At the instruction of a narcotics detective, Deputy John Becker stopped the green Toyota driven by Mr. Howell. The Toyota was stopped less than one-quarter mile from 1512 Cedarbreak Avenue. Mr. Howell was returned to the Cedarbreak Avenue address, arrested and taken to a sheriff’s station. During the booking process, $792.32 was found in Mr. Howell’s wallet as well as a piece of paper with the Cedarbreak Avenue address. While at the sheriff’s station, Deputy Becker saw a deputy booking Mr. Myrie.
Detective Campbell returned to 1512 Cedarbreak Avenue. Detective Campbell was aware that Mr. Howell and Mr. Ward had been detained. Detective Campbell secured the premises before beginning a search. Detective Campbell also had someone videotape the residence before and after a search was conducted. The video taken prior to the search was played at trial for the jury. The house was cleared with the assistance of a sergeant and a detective along with a dog. Mr. Powell was found lying down in the closet in one of the bedrooms. A deputy was assigned to contain the rear of the residence during the search. After the residence was cleared, Detective Campbell met the deputy who had been in the backyard of the house. Mr. Myrie was handcuffed.
In the master bedroom, Detective Campbell found a loaded handgun and luggage bearing the names of Mr. Powell and Mr. Ward. Large sums of money and several bags of marijuana were found in the kitchen–dining room area. Detective Campbell found packaging materials all over the kitchen. A digital scale was next to the kitchen table. Large bags of packing material, including Styrofoam peanuts, along with tape, plastic rolls, cartons, buckets of grease, and expanding foam were in the bedroom where Mr. Powell was hiding. Another digital scale was in the closet of that room. Detective Campbell explained that a marijuana brick is usually greased to prevent a narcotics dog from smelling it. The Styrofoam is cut to fit all sides of the box where it is then glued. The expanding foam is used to seal the corners of the Styrofoam. Four additional 30-pound marijuana bricks and 1 partial marijuana brick were found in the bedroom closet. A search of a trash can in the backyard uncovered a box top with a label addressed to Mr. Howell at the Cedarbreak Avenue address.
The Ford truck in the driveway had been rented by Mr. Ward at the Ontario airport on March 9, 2009 and was due to be returned on March 11, 2009. Mr. Ward’s address was listed as North Lauderdale, Florida. The rental document also had a handwritten notation of, “1512 Cedarbreak Avenue, Rowland Heights.” Twenty-four cans of expanding foam were also found in the Ford truck in the driveway. The parties stipulated that the marijuana recovered from the Cedarbreak Avenue residence and the white van was analyzed by a forensic chemist. The total marijuana recovered was approximately 365 pounds. Based upon his background and expertise, the nature of the packaging, and the quantity recovered, Detective Campbell believed that the marijuana was possessed in order to sell it.
Detective Campbell interviewed Mr. Powell on March 10, 2009. Mr. Powell was advised of his constitutional rights and agreed to speak. Mr. Powell said he had lost his job in New Jersey. Mr. Powell came to the Cedarbreak Avenue residence on March 8, 2009, to make money for his family by packaging marijuana for shipment. An individual identified as “Phillie” paid for Mr. Powell’s airfare to California. When Mr. Powell arrived at the Cedarbreak Avenue home, he found an envelope bearing his name on the kitchen table which contained money. When Mr. Powell was booked, he had $3,736.14 in his possession.
III. DISCUSSION
A. Suppression Of Evidence Motion
1. Factual and procedural background
Mr. Ward argues that the trial court improperly denied his section 1538.5, subdivision (i) evidence suppression motion. In his motion, Mr. Ward argued: he was detained without reasonable suspicion; the warrantless traffic stop constituted a seizure; the detention was unlawful; his consent to the van’s search was involuntary based upon the illegal detention; and the items seized resulted from the prior unlawful conduct of the sheriff’s detectives and deputies. Mr. Powell joined in Mr. Ward’s suppression of evidence motion. Mr. Powell further sought to suppress all statements made to the sheriff’s detectives. Mr. Myrie joined the motion only as to the marijuana recovered from the van. The prosecutor filed an opposition to the suppression motion. The trial court construed the suppression motions to include claims of an insufficient affidavit for the search of the Cedarbreak Avenue home as well as a warrantless search of the van.
At approximately noon on March 9, 2009, Detective Campbell received a telephone call from an individual identified only as Detective Poole, who was a narcotics investigator in Broward County, Florida. Detective Poole said a reliable informant had said that, within the next day or two, a shipment of marijuana would be sent from Rowland Heights, California to Florida. Counsel for all defendants objected based upon foundation and hearsay because the reliability of the confidential informant could not be tested. The trial court again overruled the objections noting: “And, again, we’re talking about probable cause and reasonable suspicion to detain based on hearsay statements from other officers. For that limited reason, the objection is overruled.” Detective Poole told Detective Campbell the unidentified informant had been “dead ban[g] on” in the past.
Detective Poole told Detective Campbell that Mr. Ward had previously shipped marijuana from California to Florida. Detective Poole also stated that Mr. Ward was in the process of packaging the marijuana and would ship it within a day or two. Detective Poole described Mr. Ward as an African-American man, who weighed approximately 300 pounds and was approximately 6 feet tall. Mr. Ward’s birth date was given as November 14, 1978. Detective Poole also indicated that Mr. Ward would be helped by another African-American named Jeffrey who was approximately six feet tall and wore a dreadlocks hairstyle. Detective Poole gave Detective Campbell the address of the Postal Bay mail business and the house on Cedarbreak Avenue where the packaging was being done. Detective Poole indicated that those involved in marijuana packaging usually use a truck to run errands. The individuals would package the marijuana in boxes and transport it to the Postal Bay mail service location in a U-Haul van.
Detective Campbell obtained permission from a supervisor to begin watching the Cedarbreak Avenue residence. Detective Campbell began the surveillance at approximately 3 p.m. on March 9, 2010. Detective Campbell noticed a gray Ford truck in the driveway of the home. Detective Campbell determined that the truck had been rented by Mr. Ward. Detective Campbell instructed Sergeant Cardenas to go to the Postal Bay address to confirm the location and business hours. At approximately 4:10 p.m., Detective Campbell saw two men get into the Ford truck. The men matched the description of Mr. Ward and the person identified as “Jeffrey” provided by Detective Poole. At the suppression of evidence hearing, Detective Campbell identified the same individuals as Mr. Ward and Mr. Powell. A short time later, Detective Campbell saw a Toyota pull into the driveway of the residence. Mr. Howell, the driver of the Toyota, opened the garage door by using a remote control. Detective Campbell saw a commercial style white van with advertising on the rear inside the garage. Mr. Howell then closed the garage door, backed out of the driveway and parked on the street in front of the house. Mr. Howell went into the residence at 1512 Cedarbreak Avenue. Approximately 10 minutes later, the gray Ford truck returned. Mr. Ward and Mr. Powell went inside the house. Detective Campbell stopped watching the Cedarbreak Avenue residence at approximately 6:45 p.m. because the Postal Bay mail business closed at 6:30 p.m.
Detective Campbell resumed watching the Cedarbreak Avenue residence at approximately 8:10 a.m. on March 10, 2009. At approximately 10:15 a.m., Detective Campbell saw the same Toyota automobile park in front of the residence. Mr. Howell and Mr. Myrie got out of the Toyota and walked into the residence. At approximately 12:10 p.m., Mr. Howell got into the Ford truck. Mr. Howell backed out of the driveway and into the street. Immediately thereafter, the garage door opened. Mr. Ward backed the white U-Haul van out of the driveway and drove away eastbound in the general direction of the Postal Bay business. Detective Campbell instructed Detectives De Young and Sergeant Cardenas to follow the white van. Detective Campbell also directed Deputy Hish to stop the white van.
Detective Campbell drove to where the van had been stopped. Mr. Ward was seated in the rear seat of the patrol car. Detective McBride and a narcotics dog arrived shortly thereafter. Detective Campbell directed Detective McBride to walk the dog around the closed van. The dog alerted at the back bumper of the van and then at the side sliding door. When the door of the van was opened, the dog alerted to the boxes inside the van. Detective Campbell opened one of the boxes. After cutting through Styrofoam and peanut insulation, Detective Campbell saw an object wrapped in black plastic which weighed approximately 30 pounds. All of the remaining boxes, which were uniform in weight had the same black object inside.
Thereafter, Detective Campbell and five other narcotics detectives returned to the residence at 1512 Cedarbreak Avenue. The detectives entered the house, detained the one remaining occupant and “froze” the residence pending the issuance of a search warrant. The search warrant was subsequently issued. Approximately 365 pounds of marijuana was seized from the van and the house.
Deputy Peter Hish was contacted by Detective Campbell on March 10, 2009, regarding a narcotic investigation. Deputy Hish was in his marked patrol car at the time. Detective Campbell gave Deputy Hish a description of the white U-Haul van bearing emblems and an Arizona license plate. Sergeant Salvador Cardenas ordered Deputy Hish to stop the white van before it reached the freeway. Deputy Hish activated his red lights and stopped the van. Deputy Hish did not observe the driver of the van commit any traffic violations. Deputy Hish spoke to the driver, Mr. Ward. No one else was inside the van. Mr. Ward was instructed to turn off the van and step out. Mr. Ward was patted down for weapons and placed in the back of the patrol car. Mr. Ward was not handcuffed. Mr. Ward was asked about his identity and employment. Mr. Ward gave his name. Mr. Ward stated that he owned a clothing store in Florida. Mr. Ward indicated he was going to the post office to drop off clothing and other inventory for his store. Deputy Hish had seen approximately 8 to 10 boxes in the back of the van while initially approaching Mr. Ward.
Sergeant Cardenas testified that he was assisting in watching 1512 Cedarbreak Avenue. At the direction of Detective Campbell, Sergeant Cardenas went to a business identified as Postal Bay at 15810 East Gale Avenue in Hacienda Heights. Sergeant Cardenas determined that the business was open Monday through Friday from 9:30 a.m. to 6 p.m. and from 10 a.m. to 2 p.m. on Saturdays. Sergeant Cardenas determined that the shortest distance between the Postal Bay mail service business and the residence at 1512 Cedarbreak Avenue was approximately five miles by way of the Pomona Freeway.
Just after noon on March 10, 2009, Sergeant Cardenas instructed Deputy Hish to stop the U-Haul van. Detective Campbell had informed Sergeant Cardenas that the van would be leaving the Cedarbreak Avenue address and travelling to the Postal Bay business establishment to send boxes containing marijuana. Detective Campbell had learned of the narcotics operation from a peace officer in Florida. Counsel for all defendants objected to the hearsay nature of the testimony. In overruling the objections, the trial court noted: “Bear in mind this is simply a probable cause to either arrest or reasonable suspicion to detain the vehicle and justify that stop. So hearsay is admissible at least for that limited purpose.”
Counsel for Mr. Ward, Kory Mathewson, argued that the stop and search of Mr. Ward constituted a seizure. Mr. Mathewson argued that the improper seizure removed the necessity of reasonable suspicion and required a probable cause showing. In addition, Mr. Mathewson argued that there was not enough evidence to establish reasonable suspicion. Mr. Mathewson further questioned the reliability of the confidential informant. Mr. Mathewson argued that the cases of People v. Harvey (1958) 156 Cal.App.2d 516, 523, and People v. Madden (1970) 2 Cal.3d 1017, 1021, barred the introduction of hearsay evidence where the officer reporting the information obtained from a reliable informant does not testify.
Counsel for Mr. Powell, Gregorio Roman, argued the standing issue. Mr. Roman argued Mr. Powell had standing to challenge the illegal van search. Mr. Roman reasoned Mr. Powell was at the house that was subsequently searched as a result of the warrant that followed the stop of the van. Mr. Roman theorized that any evidence recovered at the house or statements made by Mr. Powell were fruit of the poisonous tree. Counsel for Mr. Howell, Stuart Goldfarb, joined the other arguments of Mr. Mathewson and Mr. Roman. Mr. Goldfarb further questioned why a search warrant for the house was not issued before the van left. Rodolfo A. Aguirre, counsel for Mr. Myrie, joined the arguments of all three attorneys.
In denying the suppression of evidence motion, the trial court explained the standard of reasonable suspicion versus probable cause. The trial court noted: “[A]ll the officers needed to stop the van was a reasonable suspicion, not probable cause sufficient to get a warrant, not probable cause to arrest or to seize or search but simply a reasonable suspicion. And as we know, once the stop occurred and the dogs were called on scene before any search was committed, the dogs alerted. That gave probable cause to search the vehicle at that point. In terms of that analysis, after the dogs alerted to the vehicle, certainly there was probable cause to search the van.” The trial court then returned to the analysis of reasonable suspicion based upon the information provided by Detective Poole in Florida. The trial court explained: “Detective Campbell did not just take that information at face value. He did follow up as any law enforcement official should do and that is to corroborate this information to make sure it was accurate and not mistaken in any way. So that’s why he sets up this surveillance at or near the time in which this packaging and shipping was going to take place. That’s why the surveillance was taken up on March 9th and continued into March 10th. On March 9th, we didn’t see a lot of activity there other than individuals fitting the description of individuals involved per the Florida information. But, nonetheless, there was information that a van was in that garage and again [a] SUV being used by occupants of that same location, again, consistent with the information supplied by [sic] from Florida. Detective Poole [sic] could have perhaps pursued a warrant even at that point after confirming that information at least to that extent on March 9th. But did he do so? No, he did not. He did as what a good law enforcement officer should do and that is wait for continued corroboration.... [¶] [T]he surveillance continues into March 10th. That is when we see some additional activity including moving of the van from the location and driving away. Because that information is specific enough that corroborates the information relayed from Florida, I think this court can reasonably conclude that this information was not manufactured which is the real reason why the Harvey-Madden line of cases [has] been developed and that is to make certain that law enforcement does not act on face value of information relayed to them; that they take steps to corroborate the information before they act upon it. That’s exactly what Detective Campbell did in ordering the stop of this van. Now, did he have reasonable suspicion to do so based upon the factors that he had available to him? I think that he did. I believe that he did. I believe the information was specific enough relayed to him from Florida that he corroborated through observations throughout the two days of surveillance including the types of vehicles used and the description of the individuals involved and I think that does satisfy the criteria that all counsel are concerned with; that they did have a reasonable suspicion to at least detain for further investigation. Certainly not probable cause to either get a warrant or even to get a warrant for the van. Get a warrant for the Cedarbreak location or get a warrant for the van. It wasn’t until probable cause developed after the dogs alerted to the contents of the van, after they searched the van having probable cause at that point to do so because of the extra evidence that was produced by way of dog alert. That gave them justification and probable cause to go into the van and look for the contraband which obviously they recovered. Now, because the contraband was recovered in the van which, again, corroborated the facts that came in from Florida, the information from Florida that certainly rose to the level that they now have probable cause to get a warrant, and that is exactly what Detective Campbell did.”
2. Standard of Review
We apply the following standard of review: “‘“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review.”’” (People v. Ayala (2000) 23 Cal.4th 225, 255, quoting People v. Alvarez (1996) 14 Cal.4th 155, 182; People v.Williams (1988) 45 Cal.3d 1268, 1301.) We view the record in a light most favorable to the trial court’s ruling. (People v. Jenkins (2000) 22 Cal.4th 900, 969; People v. Alvarez, supra, 14 Cal.4th at p. 182; Guidiv.Superior Court (1973) 10 Cal.3d 1, 10, fn. 7; Peoplev.Reilly (1970) 3 Cal.3d 421, 425 [appellate court is bound to “view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence”].) The trial court’s application of the law to the facts is subject to independent review. (People v. Jenkins, supra, 22 Cal.4th at p. 969; People v. Alvarez, supra, 14 Cal.4th at p. 182.)
3. The trial court properly overruled the hearsay objections
Mr. Ward argues the trial court improperly admitted the testimony of Detective Campbell regarding the information he obtained from Detective Poole over the “Harvey-Madden” objections. Mr. Powell joins the argument. We disagree. In People v. Madden, supra, 2 Cal.3d at page 1021, our Supreme Court held: “We held in People v. Lara, [(1967)] 67 Cal.2d 365, 374, that, although an officer may make an arrest based on information received through ‘official channels, ’ the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony. We reaffirmed this principle in the recent case of Remers v. Superior Court [(1970) 2 Cal.3d 659], 666-667, where we pointed out: ‘It is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, “when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.” [Citations.] To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. [Citations.] “If this were so, every utterance of a police officer would instantly and automatically acquire the dignity of official information; ‘reasonable cause’ or ‘reasonable grounds, ’... could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence.” [Citation.]’” (Accord, In re Richard G. (2009) 173 Cal.App.4th 1252, 1258-1259 [this rule applies to detentions as well as arrests]; People v. Collins (1997) 59 Cal.App.4th 988, 993-994; People v. Rice (1967) 253 Cal.App.2d 789, 792; People v. Pease (1966) 242 Cal.App.2d 442, 448-450; People v. Harvey, supra, 156 Cal.App.2d at p. 523.)
An exception to this rule is when the information provided by the absent detective is corroborated as part of an independent investigation performed by a testifying investigator. (In re Richard G., supra, 173 Cal.App.4th at p. 1259; People v. Gomez (2004) 117 Cal.App.4th 531, 540-541; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1555 [“[W]hen police officers work together to build ‘collective knowledge’ of probable cause, the important question is not what each officer knew about probable cause, but how valid and reasonable the probable cause was that developed in the officers’ collective knowledge”].)
In this case, there was significant information provided by Detective Poole, which was readily corroborated by Detective Campbell. Detective Poole described Mr. Ward and another individual known as “Jeffrey.” Detective Poole provided both the address of the residence where the packaging would occur and the location from which the marijuana would be shipped. Detective Poole indicated that Mr. Ward usually rented a sport utility truck to run errands. When Detective Campbell began watching the residence, he saw a gray Ford pickup truck in the driveway of the home. Detective Campbell verified that the truck was rented. Detective Campbell then saw Mr. Ward and Mr. Powell, who fit the descriptions given by Detective Poole, get into the truck and drive away. When Mr. Howell arrived at the residence, he opened the garage door. Detective Campbell saw a white commercial van parked inside the garage before the door was closed. Detective Poole had informed Detective Campbell that Mr. Ward usually transported the marijuana in a rented U-Haul van. In addition, Detective Campbell instructed Sergeant Cardenas to verify the location of Postal Bay and determine the business hours there. As the trial court found, Detective Campbell’s corroboration demonstrated that Detective Poole’s specific information was “something other than the imagination of an officer who does not” testify. There is substantial evidence information provided by Detective Poole was not manufactured. (In re Richard G., supra, 173 Cal.App.4th at p. 1259; People v. Gomez, supra, 117 Cal.App.4th at pp. 540-541; People v. Ramirez, supra, 59 Cal.App.4th at p. 1555.) As a result, the trial court could properly overrule the hearsay objections.
4. The trial court could reasonably deny the suppression motion
Mr. Ward argues that Deputy Hish did not have probable cause nor reasonable suspicion to stop the van. We disagree. The United States Supreme Court has held that the Fourth Amendment prohibits seizures of persons including those occurring during brief but unreasonable investigative detentions. (Whren v. United States (1996) 517 U.S. 806, 809-810; Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) The United States Supreme Court also held: “An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion [citation]....” (Ornelas v. United States (1996) 517 U.S. 690, 693, citing Terry v. Ohio, supra, 392 U.S. 1; Whren v. United States, supra, 517 U.S. at p. 810 [“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”]; Delaware v. Prouse (1979) 440 U.S. 648, 659; People v. Dolly (2007) 40 Cal.4th 458, 463.) However, a police officer’s seizure of a person need not be justified by probable cause to arrest that individual for criminal behavior. (Florida v. Royer (1983) 460 U.S. 491, 498; accord, Minnesota v. Dickerson (1993) 508 U.S. 366, 373.) Moreover, our Supreme Court has held: “‘Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip.’ [Citation.]” (People v. Dolly, supra, 40 Cal.4th at p. 693, quoting People v. Wells (2006) 38 Cal.4th 1078, 1083; see also Alabama v. White (1990) 496 U.S. 325, 330.) “[W]here a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (People v. Wells, supra, 38 Cal.4th at p. 1083, quoting In re Tony C. (1978) 21 Cal.3d 888, 893-894.) In People v. Dolly, supra, 40 Cal.4th at page 464, our Supreme Court held: “A tip’s reliability... need not depend exclusively on its ability to predict the suspect’s future behavior [citation] or the officer’s ability to corroborate present illegal activity [citation]. Rather, the tip’s reliability depends upon an assessment of ‘the totality of the circumstances in a given case.’ [Citations.]” (See People v. Wells, supra, 38 Cal.4th at p. 1088.)
In this case, the information came from a reliable informant through another sheriff’s department directly to Detective Campbell. As set forth above, the facts related regarding the narcotics operation were specific and subject to validation. Moreover, Detective Campbell was able to corroborate these facts by surveillance, identification of the principals and verification of the modus operandi of those involved. If Mr. Ward had been allowed to continue driving the van away, there was a likelihood that either he would have eluded officers or that he would have successfully shipped the marijuana. As a result, the trial court could properly conclude there was a reasonable suspicion that a violation of the law was in progress, thereby justifying the stop of the van and detention of Mr. Ward pending further investigation. As a result, the trial court could properly deny the section 1538.5 suppression of evidence motion.
B. Trial Court’s Determination That Juror No. 1 Was Fit To Serve
1. Factual and procedural background
Mr. Ward argues that the trial court improperly allowed Juror No. 1 to remain on the jury after he confided to the trial court that he had reservations about his ability to serve. Mr. Powell joins the argument. Defendants further argue that the trial court failed to hold a hearing regarding Juror No. 1’s competence to serve. Finally, defendants argue that by allowing Juror No. 1 to remain on the jury, the trial court undermined their Sixth Amendment right to an impartial jury.
During voir dire, prospective Juror No. 1 stated he had been the victim of a crime seven years earlier. Juror No. 1 reported that while in the workplace a co-worker went crazy and began attacking others with Molotov cocktails. The co-worker threw the molotov cocktails at other employees, started a fire and then stabbed several individuals. Five employees, including Juror No. 1, were hospitalized. Juror No. 1 remained hospitalized for five weeks. Sheriff’s deputies shot the assailant. When asked if he could separate that experience from the case being tried, Juror No. 1 responded, “Yes.”
After the jury was impaneled, Juror No. 1 informed the trial court outside the presence of the jury that he was extremely nervous and did not know if he could control his emotions. The trial court told Juror No. 1: “I want to try to put your mind at ease. There is really nothing to be nervous about. There [are] certainly no issues of safety or anything for any juror, not in this case. [¶] Again, we’re just asking you to listen to information presented by witnesses and make an evaluation as to what to believe and what not to believe - - [¶]... [¶] - - in order to determine what happened in the case and follow the law that I provide.” Juror No. 1 responded, “It’s just - - I don’t know. My traumatic experience. [¶]... [¶] I don’t know where it’s coming from but it’s just making it very uncomfortable, difficult to focus, very difficult to just - - [¶]... [¶] Yeah, pay attention and not have my heart running and - -” The trial court asked Juror No. 1 to take the lunch break and come back at 1:30 p.m. and state if he still felt extremely uncomfortable. After the lunch break, the trial court indicated it was inclined to keep Juror No. 1 and to monitor his ability to concentrate and pay attention to the proceedings. The trial court then called Juror No. 1 into the courtroom and advised him: “I’ve asked you to enter the courtroom outside the presence of all other jurors, taken obviously the noon hour to think about your representation earlier, and I am concerned for your welfare and well-being. What I’m going to do, what I’ve decided is to keep you on the jury for the time being. I’ll closely monitor your situation. I am comfortable with the thought that, once you start witnessing the proceedings, you’ll become a little more comfortable and less stressed out about the proceedings when you find your duty simply is just to sit here and be a witness to the proceedings as opposed to anything else, certainly no participation beyond that. So I’m hoping that you’ll be more comfortable with your jury duty. We’ll talk about your issue at the end of the day and see if anything has changed for you.” Juror No. 1 responded, “Okay.”
At the end of the day’s proceedings, the trial court again called Juror No. 1 outside the presence of the jury. The trial court inquired about how Juror No. 1 felt. The following colloquy resulted: “Juror No. 1: I’m pretty - - not feeling very well. I feel that I’m going to get this anxiety attack that I sometimes get especially through the night and I have problem focusing on the proceedings and I don’t know if I can - - [¶] The Court: Continue? [¶] Juror No. 1: Yeah. [¶] The Court: I wasn’t aware that you had this condition of unsuspected anxiety attacks. [¶] Juror No. 1: I haven’t had it for a long while but then I’ve never been put through a situation in the past seven years that would - - so it’s totally unsuspected. I would have brought it up. [¶] The Court: Are you under any type of medication help treat that condition in any way? [¶] Juror No. 1: No. No. [¶] The Court: Are you currently seeing a physician with that type of impediment? [¶] Juror No. 1: No. No. It’s something that I went through when I had that and I was in the hospital and, as I explained to you, I think that experience brought it on. I haven’t had that sort of experience or any kind of related experience since then. I never thought I would-- [¶] The Court: It would reoccur. [¶] Juror No. 1: It would come back, yeah. [¶] The Court: I see. Well, I hear what you are saying and I don’t want to appear unsympathetic to you. I’ve been keeping an eye on you, kind of watching you out of the corner of my eye. You appear to be attentive. You appear to want to perform your function and, again, that’s just what I’ve been able to gather. I may be completely wrong. But do you feel you’ve been able to listen to the testimony, kind of evaluate what’s being said? [¶] Juror No. 1: I’ve tried and I think I have. It’s just I think that over the next few days it’s going to - - It’s going to be really tough for me. [¶] The Court: So you think - - [¶] Juror No. 1: I feel the anxiety level is rising and the situation where I’m not going to be any good to myself or anybody. [¶] The Court: I certainly do not want to put you in a position where your condition is going to worsen and perhaps even endanger your health or well-being. I want you to come back tomorrow morning and, again, we’ll address these issues as we go. You see that we only have two alternate jurors. I have to use them very wisely. I hate to do that at the inception of our case. If tomorrow you really can’t pay attention because of whatever condition you’re experiencing, we’ll readdress it and perhaps I’ll need to replace you tomorrow but, for the time being, please join us tomorrow. Maybe you can get some rest this evening and kind of forget about this case and put your mind at ease. We really need your assistance. It’s an incredibly important function that you have for us. You can see this lawsuit, if you will, is very important to all parties. [¶] Juror No. 1: I understand. [¶] The Court: We have to ensure a fair trial for our accused parties, and the People. They are entitled to a fair and impartial juror as well, one who is not distracted by any type of medical condition or otherwise. But, if that’s still the case tomorrow, if you feel the need to perhaps see a physician this evening, maybe get him to write a note as well to help me verify your condition and whether or not you can continue. We’ll readdress it tomorrow. [¶] Juror No. 1: My history is through the night it gets worse for whatever reason. [¶] The Court: If you have a bad night because of this case, bring it to my attention in the morning and perhaps we’ll have to excuse you.” No further discussions were held with Juror No. 1.
2. Forfeiture
Preliminarily, defendants’ constitutional contention was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Kipp (2001) 26 Cal.4th 1100, 1130.) In addition, no defendant sought to excuse Juror No. 1 or otherwise objected to the trial court’s course of action. As a result, defendants have forfeited this issue on appeal. (People v. Holloway (2004) 33 Cal.4th 96, 124; People v. Majors (1998) 18 Cal.4th 385, 428; People v. Gallego (1990) 52 Cal.3d 115, 188.)
3. The trial court could properly rule Juror No. 1 was competent to perform his duties
In any event, we review the trial court’s decision to retain Juror No. 1 under section 1089 for an abuse of discretion. (People v. Holloway, supra, 33 Cal.4th at pp 124-125; People v. Earp (1999)20 Cal.4th 826, 892; People v. Marshall (1996) 13 Cal.4th 799, 843; People v. Lucas (1995) 12 Cal.4th 415, 489; People v. Beeler (1995) 9 Cal.4th 953, 975, 989; People v. Fudge (1994) 7 Cal.4th 1075, 1099.) Our Supreme Court has held: “[A] juror’s inability to perform as a juror “‘must appear in the record as a demonstrable reality.’” [Citation.]” (People v. Cleveland (2001) 25 Cal.4th 466, 474; People v. Marshall, supra, 13 Cal.4th at p. 843; People v. Lucas, supra, 12 Cal.4th at p. 489; People v. Johnson (1993) 6 Cal.4th 1, 21; People v. Compton (1971) 6 Cal.3d 55, 60.) It is settled that good cause exists for discharge of a juror when an impaneled jury member cannot perform or loses the ability to perform his or her duty to be fair and impartial. (People v. Earp, supra, 20 Cal.4th at pp. 892-893 [proper discharge of juror for hardship where employer stopped paying her for jury service one month earlier]; People v. Lucas, supra, 12 Cal.4th at pp. 488-489 [continued jury service would force the cancellation of the juror’s scheduled vacation]; People v. Mickey (1991) 54 Cal.3d 612, 665 [financial hardship]; People v. Fudge, supra, 7 Cal.4th at pp. 1098-1099 [juror scheduled to begin a new job needed time to complete paperwork in previous position].)
Section 1089 states in part, “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as thought the alternate juror had been selected as one of the original jurors.”
Here, the trial court held three separate hearings regarding Juror No. 1’s expressed anxiety. The first occurred shortly after the jury was selected and prior to the lunch break. The trial court carefully listened to Juror No. 1’s concerns that he felt nervous. The trial court asked Juror No. 1 to relax over lunch and report back prior to the resumption of trial. The second hearing took place after lunch and before opening statements. The trial court listened to Juror No. 1’s concerns and reassured him that the trial court would look out for his best interests and speak to him again at the end of the day’s proceedings. The third hearing occurred following the afternoon proceedings. At that time, the trial court questioned Juror No. 1 about how his prior experience as a victim affected his life in general. Juror No. 1 reported that although he had anxiety immediately after the crime seven years earlier, “I haven’t had that sort of experience or any kind of related experience since then.” The trial court stated it had been observing Juror No. 1 during the proceedings and found him attentive and able to participate. The trial court inquired, “[D]o you feel you’ve been able to listen to the testimony, kind of evaluate what’s being said?” Juror No. 1 responded, “I’ve tried and I think I have.” Thereafter, the trial court asked Juror No. 1 to see how he felt the following morning. The trial court stated: “If tomorrow you really can’t pay attention because of whatever condition you’re experiencing, we’ll readdress it and perhaps I’ll need to replace you tomorrow but, for the time being, please join us tomorrow, ... If you have a bad night because of this case, bring it to my attention in the morning and perhaps we’ll have to excuse you.” Thereafter, Juror No. 1 did not approach the court with any further concerns. The trial court inquired at length into Juror No. 1’s anxiety issues. The trial court had the ability to observe his demeanor during the inquiries and during the trial. (People v. Lucas, supra, 12 Cal.4th at p. 489; People v. Beeler, supra, 9 Cal.4th at p. 989.) The trial court also insisted more than once that Juror No. 1 notify it if he experienced any difficulty. Juror No. 1 agreed to do so.
Substantial evidence supports the trial court’s implicit determination that Juror No. 1 was competent to serve based upon both its observations and the fact that he did not raise the issue again. The record in this case does not establish “‘as a demonstrable reality’” that Juror No. 1’s initial anxiety prevented him from performing his duties. Therefore, the trial court need not have exercised its discretion to dismiss Juror No. 1. Defendants were not denied their Sixth Amendment right to an impartial jury. (See People v. Holloway, supra, 33 Cal.4th at p. 126; People v. Beeler, supra, 9 Cal.4th at pp. 989-990.)
C. Evidentiary Issues
1. Prior crime evidence
a. Factual and procedural background
Mr. Myrie argues that the trial court improperly admitted evidence of his prior marijuana trafficking. Prior to trial, the prosecutor sought to introduce evidence of Mr. Myrie’s 2005 marijuana trafficking as evidence of the “same plan or scheme and the modus operandi” in this case. The prosecutor explained that the Los Angeles police department and postal inspectors went to Mr. Myrie’s address with a package addressed to David Maxwell. Mr. Myrie was using the name David Maxwell at that time. The officers asked Mr. Myrie if he was expecting a package from another individual. Mr. Myrie indicated that he was expecting a package. The officers then presented a box and asked if Mr. Myrie would open it. Inside the box were two digital video disks and a money order for approximately $800. The officers found about five pounds of marijuana in Mr. Myrie’s apartment, along with a packaging slip for an address in Florida. Mr. Myrie had another money order for approximately $900 on his person. Mr. Myrie was convicted of marijuana possession for sale in 2006 in connection with this activity. Mr. Aguirre argued that the evidence was irrelevant, more prejudicial than probative and did not prove a plan or scheme under Evidence Code section 1101, subdivision (b). Mr. Aguirre further argued the admission of the 2005 incident violated Mr. Myrie’s constitutional rights to due process and the right to a fair trial.
In admitting the evidence, the trial court held: “There appears to be some similarity in terms of conduct. We are talking about more than one individual occupying a residence, be it an apartment or otherwise. Appears to be packaging of fairly large amounts of marijuana. In this case, obviously five pounds. That’s not much in terms of marijuana but still it’s a substantial amount. Personal possession of large amounts of money, be it through money order or cash. And more importantly the packaging of the marijuana appears to be addressed from California to Florida. Very similar to the circumstances that we have before us indicating that Mr. Myrie’s participation in the case before us happened March 10th was more than just tenuous. It’s circumstantial where you would assist the People in establishing that he had an intent to participate in the same scheme as the others, that being packaging large amounts of marijuana, shipping them to an address in Florida, being in possession of money like the others. Motive seems to be the same as well. That is the reason they are occupying this location is for this packaging, somewhat packaging operation.”
The trial court instructed the jurors prior to Postal Inspector Glenn Fiene’s testimony regarding Mr. Myrie’s prior offense: “There is going to be evidence regarding an offense other than what has been charged in this case. You may consider this evidence only if the People have proved by the preponderance of the evidence that the defendant [Mr. Myrie], in fact, committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it’s more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the offense, you may but are not required to consider that evidence for a limited purpose of deciding whether or not the defendant, again, Mr. Stollmeyer Myrie acted with the intent to sell marijuana in this case or the defendant Mr. Stollmeyer Myrie had a motive to commit the offense alleged in the case or the defendant, again, Stollmeyer Myrie had a plan or scheme to commit the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. Do not consider this evidence for any other purpose or against any other defendant. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crimes. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not insufficient [sic] by itself to prove that the defendant is guilty of the crime charged. The People must still prove every charge beyond a reasonable doubt.”
Thereafter Inspector Fiene testified that on November 17, 2005, he was investigating an express mail flat that was suspected of involving narcotics sales. Inspector Fiene, Inspector Lauren Rofe and Los Angeles Police Detective Andy Smith went to Mr. Myrie’s apartment. Mr. Myrie answered the door. Mr. Myrie was asked if he was expecting an express mail parcel. Mr. Myrie hesitantly said he was not sure. When asked if he knew the sender of the parcel, Mr. Myrie acted as though he was not sure. Inspector Rofe asked if he could open the parcel. Mr. Myrie consented. Mr. Myrie indicated he was expecting a digital video or compact disk in a package. Inside the package was a Lord of the Rings digital video disk. When the digital video disk was opened, a United States Postal Service money order was found secreted inside. The money order was issue in the amount of $1,000. It had no name designated as the payee. The zip code where the money order originated was Miami, Florida. Mr. Myrie said the money order was “spending money” but gave no other explanation.
Detective Smith asked Mr. Myrie if there were any drugs in the apartment. Mr. Myrie said there were no drugs in the apartment. Detective Smith asked Mr. Myrie’s permission to search the apartment. Mr. Myrie initially questioned the need for a search after he told the investigator there were no drugs present. But Mr. Myrie later consented to the search. In the hallway closet, Inspector Fiene found a gym bag that smelled of marijuana. Also inside the closet were packing boxes, Styrofoam, peanut packing material and a large plastic bag. The inspectors found additional packing boxes and materials in the bedroom. In the kitchen, the inspectors found: two scales; rolling papers; more packing material; Saran Wrap; and boxes of dryer sheets. In his experience, Inspector Fiene knew that dryer sheets were used by drug smugglers to mask the marijuana odor. After the marijuana is placed in the package, it is wrapped with several layers of Saran Wrap and then a strong-smelling oil to cover the marijuana odor. Inspector Fiene also found a shipping label in Mr. Myrie’s apartment. The label was partially addressed to Miami, Florida. Inspector Rofe asked Mr. Myrie where the marijuana was located. Mr. Myrie said it was in the kitchen. Thereafter, approximately five pounds of marijuana was located under the kitchen sink. When Mr. Myrie was later arrested and booked, the investigators found $525 in cash and another money order from Miami, Florida in the amount of $900 in his pants pocket. Inspector Fiene believed the money from Florida was sent to pay for the shipment of marijuana to Florida. Prior to deliberations, the jurors were again instructed with CALCRIM No. 375 regarding their limited consideration of uncharged crimes.
b. The trial court could properly admit evidence of the 2005 arrest
We review the trial court’s rulings concerning the admissibility of other crimes evidence pursuant to Evidence Code sections 352 and 1101 for an abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130; People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Alvarez, supra, 14 Cal.4th at p. 201; People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Rowland (1992) 4 Cal.4th 238, 264.) In People v. Ewoldt (1994) 7 Cal.4th 380, 393, the Supreme Court explained that pursuant to Evidence Code section 1101, subdivision (b), a trial court may admit evidence of prior misconduct when it is relevant to establish some fact other than the person’s character or disposition. In Ewoldt and this case, the “prior misconduct is relevant to prove a material fact other than defendant’s criminal disposition, because the similarity between the circumstances of the prior acts and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the [prior] misconduct. [¶] ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]... The existence of such a design or plan also may be proved circumstantially by evidence that the defendant has performed acts having ‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.] Evidence of a common design or plan, therefore, is not used to prove the defendant’s intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.” (Id. at pp. 393-394, fn. omitted.) The California Supreme Court later held: “‘The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be “sufficiently similar [to the charged offenses] to support the inference that the defendant ‘“probably harbored the same intent in each instance.” [Citations.]’”’ [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting People v. Kipp (1998) 18 Cal.4th 349, 369-371; see also People v. Foster (2010) 50 Cal.4th 1301, 1328; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222-1223; People v. Carpenter (1997) 15 Cal.4th 312, 379.)
Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In this case, the trial court could reasonably find that Mr. Myrie’s prior involvement in the shipment of marijuana from California to Florida was sufficiently relevant to show his intent, similar plan and scheme, and motive. The similarity between the prior and the charged offenses here demonstrated a pattern of activity resulting in the shipment of marijuana. In both instances, Mr. Myrie was involved in the packing of marijuana for shipment and profit. The trial court could also reasonably rule the probative value of the prior conduct was not substantially outweighed by any probability of undue prejudice. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405; Peoplev. Williams (2009) 170 Cal.App.4th 587, 612.) No abuse of discretion or federal constitutional violation occurred in the jury’s consideration of the prior conviction. (See People v. Lindberg (2008) 45 Cal.4th 1, 26 [“‘[a]pplication of the ordinary rules of evidence generally does not impermissibly infringe on a... defendant’s constitutional rights’”], quoting People v. Kraft (2000) 23 Cal.4th 978, 1035.)
2. Sufficient evidence supports Mr. Myrie’s conviction
a. Factual and procedural background
Mr. Myrie argues there was insufficient evidence to support his conviction. Following the conclusion of the prosecutor’s case, defendants brought a section 1118.1 acquittal motion. In denying the section 1118.1 acquittal motion, the trial court reasoned: “Had it not been for this [Evidence Code, section] 1101[, subdivision] (b) evidence, I think I would grant your motion as to Mr. Myrie. But the [Evidence Code section] 1101[, subdivision] (b) evidence establishes that there is some similarity between the prior conduct of Mr. Myrie and the operation that was ongoing on Cedarbreak. Him being present and obviously having some interaction with the co-defendants who evidently share more responsibility in this case, that being Mr. Ward primarily, I think saves the People in terms of this [section] 1118.1[motion.]” The trial court concluded: “Again, had it not been for the [Evidence Code section] 1101[, subdivision] (b) evidence that was allowed and permitted, I think Mr. Aguirre, much like your 995 argument, may have been well-taken. Certainly the evidence at prelim was not enough to convict beyond a reasonable doubt. I would have granted it but the People added beyond that evidence the [Evidence Code section] 1101[, subdivision] (b) evidence which obviously I permitted and it does make that connection that Mr. Stollmeyer Myrie was not just simply present at the time these offenses transpired; that he had more of an active role in the packaging operation because of that prior evidence and because of the extensive nature of this operation and that anyone walking into that location would obviously be put on notice that this is the operation taking place, and yet Mr. Myrie was there on more than just one occasion, going in. He was observed there on March 9 and March 10. [¶]... [¶] Forgive me. Maybe I got that confused with another co-defendant which in this case is a little complicated, but Mr. Myrie was there at least on March 10. But what is important about his presence at the time is he did not leave the location before Mr. Ward drove out of the garage with the amount of -- [¶]... [¶]... [T]he evidence that is in the record that this location was under surveillance from the time Mr. Myrie arrived to the time that Mr. Ward left the location, driving the van that contained obviously this load of marijuana. Circumstantially at least per the evidence that’s in the record that Mr. Myrie didn’t leave at that time. He ended up being arrested certainly and booked shortly after the search of the location took place for reasons unknown. But the fact of the matter is that there was a large amount of marijuana that had to have been packaged in that location, had to have been boxed, wrapped, stored, and loaded onto that van and that certainly takes time. Mr. Myrie was there at a critical period of time consistent with being involved in that operation. [¶] And so, again for those reasons coupled with the [Evidence Code section] 1101[, subdivision] (b) evidence, I think there is enough to allow the jury at least to consider his liability rather than this court.”
Section 1118.1 states in part, “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”
Evidence Code section 1101, subdivision (b) states: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his or her disposition to commit such an act.”
b. Substantial evidence supports Mr. Myrie’s conviction
In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: “[We] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v.Mincey (1992) 2 Cal.4th 408, 432; People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v.Hayes (1990) 52 Cal.3d 577, 631; People v.Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v.Virginia, supra, 443 U.S. at p. 319; People v. Lindberg, supra, 45 Cal.4th at p. 27; People v. Bolin (1998) 18 Cal.4th 297, 331; People v.Marshall (1997) 15 Cal.4th 1, 34.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez, supra, 20 Cal.4th at p. 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v.Bloom (1989) 48 Cal.3d 1194, 1208; People v.Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
As the trial court noted, Mr. Myrie was inside the residence where the packaging took place during critical hours prior to Mr. Ward’s departure with the marijuana. In addition, he was apprehended in the backyard of the home when deputies secured the location. Mr. Myrie had over $1,000 cash on his person when arrested. When the house was searched, there was evidence in several rooms that marijuana had recently been packaged there. This, coupled with his prior involvement in a similar marijuana operation involving shipment to Florida, was substantial evidence that he aided and abetted in the present offenses.
D. Flight Instruction
1. Factual and procedural background
Mr. Ward argues that the trial court improperly instructed the jurors with a modified version of CALCRIM No. 372 regarding his voluntary absence from trial. Mr. Powell joins in Mr. Ward’s argument. Although they were present for the initial proceedings in this case, commencing July 2, 2009, during the course of jury selection, Mr. Ward and Mr. Powell fled. The trial court held that Mr. Ward and Mr. Powell could be prosecuted in absentia. When jury selection resumed, the trial court instructed the prospective jurors: “Ladies and gentlemen, I most sincerely apologize for the unexpected delay that we have experienced this afternoon. As you can plainly see, Mr. Ward and Mr. Powell are no longer present and they have voluntarily absented themselves from this trial with full knowledge that their trial is being held. Now their voluntary absence, however, will not prevent this trial from proceeding and we will go forward. [¶] Furthermore, you are instructed that you must not consider the voluntary absence of defendant Ward and defendant Powell as evidence as against any other defendant. Having said that, we are proceeding as we planned before against all defendants regardless of now that we’re missing two.”
During the course of the voir dire, Mr. Mathewson, counsel for Mr. Ward, inquired of jurors whether the absences would pose a problem. The trial court then further instructed the jurors: “Certainly, the absence of Mr. Ward and Mr. Powell does not affect the burden of proof on the People. Mr. Ward and Mr. Powell, much like Mr. Howell and [Mr.] Myrie, are still entitled to that presumption of innocence. And even as we sit here today, they’re still presumably innocent of any and all charges until you’re convinced beyond a reasonable doubt that the evidence produced in this courtroom proves to the contrary.” Mr. Ward and Mr. Powell did not attend the remainder of the trial.
At the close of trial, the trial court instructed the jurors with a modified version of CALCRIM No. 372 as follows: “If a defendant fled or tried to flee immediately after the crime was committed, or after he was accused of committing the crime or by voluntarily absenting himself from this trial with full knowledge that his trial is being held, that conduct may show that he was aware of his guilt. If you conclude that a defendant fled or tried to flee or voluntarily absented himself from this trial, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled, tried to flee, or voluntarily absented himself from this trial cannot prove guilt by itself.” Mr. Roman, counsel for Mr. Powell, had suggested the language of the last sentence of the instruction regarding “voluntarily absented himself from this trial” and Mr. Mathewson, Mr. Ward’s attorney, approved the addition. Mr. Ward and Mr. Powell object to the italicized portion of the modified instruction. Mr. Ward argues: “This addition to the standard instruction erroneously expanded the concept of flight and turned CALCRIM [No.] 372 into an improper pinpoint instruction because the modification served to shift the burden of proof and interfered with the jury’s fact-finding function.”
2. The flight instruction was properly given
In People v. Mendoza (2000) 24 Cal.4th 130, 180, our Supreme Court held: “As the United States Supreme Court has observed: ‘A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom [v. Montana (1979) 442 U.S. 510]. A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. (Ulster County Court [v. Allen] [(1979)] 442 U.S. [140, ] 157-163.’ [Citations.] This test permits a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt. Thus, here the flight instruction does not violate due process.” (See also People v. Navarette (2003) 30 Cal.4th 458, 502 [defense counsel’s argument that the jurors should be instructed that defendant may have fled for a reason other than his guilt in the present crime “turns the [flight] instruction on its head”]; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158.) In addition, our Supreme Court rejected Mr. Ward’s and Mr. Powell’s argument that a flight instruction is an improper pinpoint instruction: “The instruction informs the jury that it may consider flight in connection with all other proven facts, giving the fact of flight the weight the jury deems appropriate. [Citation.] The instruction is not argumentative; it does not impermissibly direct the jury to make only one inference.” (People v. Mendoza, supra, 24 Cal.4th at pp. 180-181; see People v. Kelly (1992) 1 Cal.4th 495, 531-532.)
In this case, much like the case of People v. Snyder (1976) 56 Cal.App.3d 195, 198-199, Mr. Ward and Mr. Powell were present in court when jury selection was commenced. However, prior to the trial commencement, both fled. They remained at large during the course of the trial. In Snyder, the defendant also absented himself following jury selection and remained absent until after a verdict had been reached. Our colleagues in Division One of this appellate district held the trial court properly instructed the jury on flight, noting: “[I]n the absence of any explanation it would be reasonable to infer that defendant’s absence was voluntary and it was a fact relevant to the determination as to his guilt or innocence. [Citation.]” (Ibid.) Likewise in People v. Vargas (1975) 53 Cal.App.3d 516, 530-531, the defendant was present for the jury selection but failed to appear the following day for trial. The trial proceeded without the defendant being present. The trial court informed the jurors that although the defendant had been present, he apparently voluntarily left the courthouse. The trial court stated that under the Constitution, they were entitled to proceed in his absence. The defendant did not return to court until he was sentenced. Again, our colleagues in the Court of Appeal for the First Appellate District held the trial court had properly instructed the jurors on flight because: “The flight instruction only permitted an inference to be drawn from the defendant’s failure to be physically present. The jury were expressly instructed not to consider or draw any inferences from his failure to testify.” (Id. at pp. 530-531.) As set forth above, CALCRIM No. 372 clearly instructed the jurors that they may use the flight evidence but that evidence Mr. Ward and Mr. Powell fled cannot prove guilt by itself.
We review the instructions as a whole to determine whether it is reasonably likely that the jury misconstrued them. (Peoplev. Roybal (1998) 19 Cal.4th 481, 526-527; People v.Mendoza (1998) 18 Cal.4th 1114, 1134; People v.Frye (1998) 18 Cal.4th 894, 957; overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In People v. Frye, supra, our Supreme Court held: “In conducting this inquiry, we are mindful that ‘“a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’” (People v. Frye, supra, 18 Cal.4th at p. 957, quoting Boyde v. California (1990) 494 U.S. 370, 378; see also People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753 [“the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction”].) Here, the trial court also instructed with CALCRIM 200 which cautioned the jurors: “Pay careful attention to all of these instructions and consider them together. [¶]... [¶] Do not assume just because I give a particular instruction that I am suggesting anything about the facts.” The trial court further instructed regarding: the presumption of innocence; the requirement that the prosecution prove guilt beyond a reasonable doubt (CALCRIM No. 220); and defendants’ right not to testify. (CALCRIM No. 355.) These instructions insured that the flight instruction did not undermine the presumption of innocence or relieve the prosecution of its burden to prove Mr. Ward’s and Mr. Powell’s guilt beyond a reasonable doubt. In addition, the trial court cautioned the jurors: “Certainly, the absence of Mr. Ward and Mr. Powell does not affect the burden of proof on the People. Mr. Ward and Mr. Powell, much like Mr. Howell and [Mr.] Myrie, are still entitled to that presumption of innocence. And even as we sit here today, they’re still presumably innocent of any and all charges until you’re convinced beyond a reasonable doubt that the evidence produced in this courtroom proves to the contrary.” Further, Mr. Ward’s attorney raised the voluntary absence issue during jury voir dire.
3. Harmless error
Moreover, the instruction left the weight of the evidence of flight to the trier of fact. In light of the evidence of Mr. Ward’s and Mr. Powell’s guilt and other instructions given, any error in instructing on flight was harmless. The commission of the offense by Mr. Ward and Mr. Powell was clear and uncontradicted. It is not reasonably probable a result more favorable to defendant would have been reached absent such an alleged error. (People v.Crandell (1988) 46 Cal.3d 833, 870; People v.Silva (1988) 45 Cal.3d 604, 628; People v.Watson (1956) 46 Cal.2d 818, 836; People v. Paysinger (2009) 174 Cal.App.4th 26, 30-31; People v. Vargas, supra, 53 Cal.App.3d at p. 531.)
E. Presentence Custody Credits
All defendants argue that they are entitled to additional presentence credits pursuant to the revisions of section 4019 as amended effective January 25, 2010. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50.) That amendment took effect while this appeal was pending. The 2009 amendment to section 4019 does not apply to defendants. (§ 3; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.)
F. Fines, Penalties and Surcharges
The trial court sentenced defendants at different times. However, the trial court imposed a $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a) as to each defendant. As to Mr. Myrie, the trial court did not mention any related penalties or surcharges. As to Mr. Ward, the trial court stated, “[P]ay a crime laboratory drug analysis fee of $50 plus penalty assessments per charge.” As to Mr. Powell, the trial court ordered him to pay, “[A] crime lab drug analysis fee of $50 plus assessment.” The abstracts of judgment for Mr. Powell and Mr. Ward include a “$190.00 Lab Fee per HS 11372.5(a)” without further explanation. Following our request for further briefing, the Attorney General argues the trial court should have imposed additional penalties and a state surcharge related to the Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee imposed as to each defendant. We agree. The $50 criminal laboratory analysis fee was also subject to the following: a $50 Penal Code section 1464, subdivision (a)(1) state penalty; a $35 Government Code section 76000, subdivision (a)(1) county penalty; a $10 section 1465.7, subdivision (a) state surcharge; a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $10 Government Code section 76000.5, subdivision (a)(1) emergency medical services penalty; a $5 Government Code section 76104.6, subdivision (a)(1) deoxyribonucleic acid penalty; and a $5 Government Code section 76104.7, subdivision (a) state-only deoxyribonucleic acid penalty. Thus, the total amount owed by each defendant in addition to the $50 criminal laboratory analysis fee is $130 for a total of $180 (not $190). (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1533; See People v. McCoy (2007) 156 Cal.App.4th 1246, 1254-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Defendants’ sentences are modified to impose the related fees, penalties and surcharge set forth above. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.) Based upon our finding that the 2009 amendment to Penal Code section 4019 does not apply to defendants, Mr. Powell’s argument that his entitlement to additional presentence credit should reduce the fines imposed by the trial court is without merit.
G. Other Corrections To Mr. Ward’s Abstract Of Judgment
Further, as to Mr. Ward, his abstract of judgment must be corrected to reflect the Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee imposed as to count 1 (marijuana transportation) plus the $130 in the surcharge and penalties for a total of $180. The trial court was obligated to impose the $50 criminal laboratory analysis fee on each count. (Health & Saf. Code, § 11372.5, subd. (a); People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) The trial court orally imposed the $50 criminal laboratory analysis fee on each count plus the surcharge and the penalties. The abstract of judgment must be corrected to comply with the oral pronouncement of judgment except that the total amount owed is $180. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14, disapproved on another point in People v. Karaman (1992) 4 Cal.4th 335, 348-350.)
IV. DISPOSITION
The judgment is modified to impose the additional penalties and surcharge related to the $50 Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee as to each defendant and to correct Mr. Ward’s abstract of judgment as set forth in the body of this opinion. Upon remittitur issuance, the clerk of the superior court shall forward amended abstracts of judgment to the California Department of Corrections and Rehabilitation. The judgments are affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.