Opinion
G054383
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE RODRIGUEZ, Defendant and Appellant.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arelene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16NF2228) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed in part, reversed in part and remanded with directions. Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arelene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Enrique Rodriguez was sentenced to jail and supervised release after he was convicted of two drug crimes and found to have a prior drug offense and two prison priors. On appeal, he contends: 1) The trial court erred in excluding certain evidence about drug pricing; 2) there is insufficient evidence to support one of his prison priors; 3) a condition of his supervised release is overbroad; 4) there is a clerical error in the abstract of judgment; and 5) his drug prior must be stricken due to a recent change in the law. Aside from the first, we agree with appellant's contentions. We therefore affirm in part, reverse in part and remand for further proceedings.
FACTS
One evening around 11:30, Police Officer Michael Halverson saw appellant walking in an area of Fullerton known for narcotics activity. For reasons undisclosed in the record, Halverson contacted appellant and patted him down. During the patdown, Halverson felt a hard object in appellant's pants pocket. When he removed the object, a small baggie came out as well. The object turned out to be a container of Tiger Balm, and the baggie contained a small amount of methamphetamine.
Halverson arrested appellant and searched him before placing him in the back of his police car. The only thing that search turned up were two cell phones and thirty-five cents. However, after Halverson transported appellant to the police station and removed him from his car, he saw 30 pills scattered on the backseat and floorboard. There was also a wet condom that contained an empty pill bottle on the floorboard. Halverson surmised appellant had the pills in his rectum and was trying to discard them before being booked into jail.
The pills were tested and found to contain the prescription narcotic Oxycodone. However, no testing was done to determine the potency of the pills, i.e., how many milligrams of Oxycodone were in each pill.
At trial, the primary issue was whether appellant possessed the pills for sale or personal use. In order to prove it was the former, the prosecution introduced appellant's phone records on the night of his arrest. The records show that around six o'clock that evening, appellant got a text from a man named Marty saying he had 30 "candies," which is slang for Oxycodone pills. About an hour later, appellant asked Marty if he had the pills in hand, and Marty replied he could get them shortly. After that, appellant texted a woman named Kayla and asked if she needed any "Roxie," which is another slang term for Oxycodone.
At 8:30 p.m., Marty delivered the pills to appellant. Around the same time, appellant began texting a woman named Toni to see if she had any methamphetamine available. After Toni indicated she did, appellant sent her the following text: "Look I have Oxi Colten [sic] and they are worth plenty but person with money not around and I kind of need shit you can hold pills but can you deliver and how much can you part with?"
According to Matthew Martinez, the prosecution's drug expert, this message indicated appellant was trying to offload the Oxycodone pills he got from Marty in exchange for methamphetamine from Toni. More particularly, appellant was telling Toni that if she was willing to give him some methamphetamine, she could hold on to the pills as collateral until he could find someone to buy them, at which point he would pay her for the methamphetamine. Martinez said it is not unusual for street-level drug dealers to transact business in this fashion, and in fact a lot of people who use drugs also sell them as a way to support their habit. Martinez also said it is common for people who sell drugs to have two cell phones - as appellant did - one for personal use and one for selling.
Speaking to the street value of Oxycodone, Martinez testified that five-milligram pills sell for about $4 each, and thirty-milligram pills range from $24 to $30 a pop. So, if a person were to buy 30 thirty-milligram pills at the midrange price of $26 a pill, it would cost them $780. Although, as we have mentioned, there was no evidence regarding the potency of the Oxycodone pills at issue in this case, Martinez said most people who buy Oxycodone on the street for personal use cannot afford to buy it in large quantities. Given that appellant had 30 pills in his possession, and that he was also unemployed at the time, Martinez opined he possessed the pills for the purpose of selling them. It just turned out that - as appellant's text lamented - no one was available to buy the pills when he acquired them from Marty, so he was going to use them as collateral to obtain methamphetamine, his drug of choice, from Toni.
To counter Martinez's testimony, the defense called drug expert Joseph Klein. Klein said the street price of Oxycodone can range from a few dollars for a five-milligram pill, to $45 for a "high milligram" pill. He also said it is "extremely expensive" to obtain brand name Oxycodone directly from a pharmacy. When defense counsel asked Klein if the pharmacy price would go down if the buyer had insurance, the court sustained the prosecutor's relevancy objection. In any event, Klein said he did not believe the street price of Oxycodone was so prohibitive that someone using it for personal use would be unable to afford purchasing 30 pills in one transaction.
Testifying further, Klein said he found it significant that, unlike many drug dealers, appellant had very little money on him and no pay/owe ledgers, packaging materials or weapons in his possession at the time of his arrest. Based on all of the circumstances presented, Klein opined appellant possessed the subject Oxycodone pills for his own personal use.
The jury disagreed and convicted appellant of possessing the pills for sale. (Health & Saf. Code, § 11351.) It also convicted him of possessing methamphetamine, a misdemeanor. (§ 11377.) After finding true allegations appellant had suffered a prior drug conviction (§ 11378) and served two prior prison terms (Pen. Code, § 667.5, subd. (b)), the trial court sentenced him to a five-year term to be evenly split between county jail and supervised release.
Unless noted otherwise, all further statutory references are to the Health and Safety Code. --------
DISCUSSION
Evidentiary Issue
Appellant contends the trial court erred in refusing to allow him to elicit evidence from Klein about how insurance coverage can affect the price of Oxycodone that is purchased from a pharmacy. He argues this evidence was relevant to the issue of whether he possessed the subject Oxycodone pills for sale and that by excluding it from his trial the court violated his constitutional right to present a defense. We do not see it that way.
The trial court has broad discretion in determining the relevancy of evidence. (People v. Kelly (1992) 1 Cal.4th 495, 523.) It also has wide latitude in assessing whether a party has presented a sufficient foundation to establish the relevance of evidence. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) It is not an abuse of discretion to exclude evidence that is speculative in nature or that produces only speculative inferences. (People v. Cornwell (2005) 37 Cal.4th 50, 81, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Hovey (1988) 44 Cal.3d 543, 565.)
In this case, the defense argued the proffered evidence about drug pricing was relevant because if Marty obtained the subject Oxycodone pills at a reduced cost through insurance, he would not have had to charge appellant full price for them. And if that was the case, it would have negated the prosecution's theory the pills were too expensive for appellant to have purchased them for his own personal use. However, there was no evidence Marty acquired the pills through an insurance plan. And even if he had, there was no evidence he would have been willing to pass his insurance savings along to appellant. So, as the trial court ruled, appellant's theory of relevancy was speculative.
More fundamentally, it is a matter of common knowledge that insurance coverage can bring down the cost of prescription drugs. Indeed, obtaining a price reduction on pharmaceutical goods is one of the main reasons people secure health insurance in this day and age. This concept was not so far beyond the ken of the jurors that expert testimony was required to explain it to them. (See generally People v. Jones (2012) 54 Cal.4th 1, 60 [expert testimony is subject to exclusion when it pertains to a topic of such common knowledge that jurors of ordinary education can understand it on their own].)
Lastly, we note that even without the proffered evidence, there was a sufficient basis for appellant to argue the subject Oxycodone was affordable to people who are seeking to use the drug for their own personal use. In fact, both of the experts agreed Oxycodone pills sometimes go for as little as a few dollars apiece on the street. That being the case, the absence of insurance evidence did not infringe appellant's right to present a defense or due process. For all these reasons, we uphold the trial court's ruling. No abuse of discretion or cause for reversal has been shown.
Prison Prior
Appellant also argues there is insufficient evidence to support the trial court's true finding as to one of the prison prior allegations. Respondent agrees this argument has merit, and so do we.
In felony cases, the trial court is authorized to impose a one-year enhancement for each prior prison felony served by the defendant. (Pen. Code, § 667.5, subd. (b).) However, the enhancement only applies if the prosecution establishes the defendant "did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]" (People v. Tenner (1993) 6 Cal.4th 559, 563.)
Here, the record shows that in case No. KA090668, appellant was paroled in February 2011 and did not commit the crimes at issue in this appeal until July 2016. As more than five years passed during this period, the true finding on the prior prison allegation stemming from that case must be stricken.
There is also an issue related to the second prison prior allegation the trial court found true, the one pertaining to case No. 04NF2232. Although appellant does not challenge the court's true finding on that allegation, he agrees with respondent that the court erred in failing to either impose or strike the enhancement at the time of sentencing. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561-1563.) We will remand the matter to allow the trial court to exercise its discretion in that regard. (Ibid.)
Conditions of Release
One of the conditions of appellant's supervised release is that he cannot "associate with persons known to be parolees on post release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by" the probation officer charged with his supervision. Appellant contends this condition is unconstitutional because it gives his probation officer unfettered discretion to decide with whom he may associate. We agree.
Supervised release is analogous to probation. In that context, it is well established that when it comes to restrictions on a probationer's right of association, not all delegations of authority are impermissible. As explained People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil), "There are many understandable considerations of efficiency and practicality that make it reasonable to leave to the probation department the amplification and refinement of a stay-away order. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court's order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association." (Id. at pp. 1358-1359, italics added.)
Like the condition at issue here, the condition in O'Neil prohibited the defendant from associating with any person disapproved of by his probation officer. In particular, the condition required O'Neil not to "associate socially, nor be present at any time, at any place, public or private, with any person, as designated by [his] probation officer." (O'Neil, supra, 165 Cal.App.4th at p. 1354.) Because the condition contained no standard to guide the officer in its implementation, the court struck down the condition as overbroad, concluding it "permit[ted] an unconstitutional infringement on defendant's right of association." (Id. at p. 1358.)
Likewise, here, the condition requiring appellant to stay away from anyone disapproved of by his probation officer is bereft of any standard to guide the officer in its implementation. In arguing otherwise, respondent points out that, unlike the condition at issue in O'Neil, the one in this case is more specific in that it expressly enumerates some of the people with whom appellant is forbidden to associate, namely, parolees, felons and people involved in illegal drug activity. Respondent contends this enumeration provides context and makes clear that even though the condition also prohibits appellant from associating with anyone else who is disapproved of by his probation officer, the scope of the condition is impliedly limited to the people expressly referenced therein and anyone whom his probation officer identifies as associating with those specific people.
But that's not what the condition says. In fact, on its face it doesn't suggest there is any connection between the enumerated persons with whom appellant is prohibited from associating and those persons so designated by his probation officer. Instead, the condition appears to create two separate categories of prohibited persons, those expressly enumerated and those "otherwise disapproved of" by probation. We fail to see how appellant's probation officer - or, for that matter, appellant - would gather that the people in the first group somehow relates to or limits the people in the second group.
As a fallback argument, respondent suggests we modify the condition to make clear the "otherwise disapproved of" clause only relates to people who associate with the people who are expressly enumerated in the condition. However, the group of people who associate with parolees, felons and people involved in illegal drug activity is very large. It includes family members and coworkers of such people as well as others who may actually be of benefit to appellant's rehabilitation. Therefore, rather than modifying the subject condition we strike the offending language altogether.
Abstract of Judgment
At sentencing, the trial court imposed a 90-day term on count 2 for misdemeanor possession of methamphetamine. The court also ordered that term to run concurrently to the sentence imposed on count 1 for possession of Oxycodone for sale. The problem is, the abstract of judgment fails to reflect the sentence on count 2 is concurrent. The parties agree the abstract must be amended to correct this clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Drug Prior
The parties also agree that due to a recent change in the law, appellant's sentence enhancement for having suffered a prior drug conviction must be stricken.
At sentencing, the trial court imposed a three-year enhancement based on the fact appellant had previously been convicted of possessing a controlled substance under section 11378. At that time, the enhancement was authorized under section 11370.2. However, while this appeal was pending, section 11370.2 was amended to eliminate the enhanced three-year term for a prior section 11378 conviction. (§ 11370.2, subd. (c), eff. Jan. 1, 2018.) And since appellant's case is not yet final, he is entitled to the benefit of this amendment. (People v. Millan (2018) 20 Cal.App.5th 450.) Thus, as respondent concedes, appellant's three-year enhancement cannot stand. (Ibid.)
DISPOSITION
The trial court's true finding on the prior prison allegation stemming from case No. KA090668 is stricken, as is the three-year enhancement the court imposed on count 1 for appellant's prior drug conviction. The condition of appellant's mandatory supervision regarding his association with other people is modified to strike the term, "or otherwise disapproved of by probation or mandatory supervision." In addition, the matter is remanded for the trial court to impose or strike the prior prison allegation pertaining to case No. 04NF2232. On remand, the clerk of court shall also modify the abstract of judgment to reflect the trial court ordered appellant's sentence on count 2 to run concurrently with his sentence on count 1. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. GOETHALS, J.