Opinion
H046394
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN THOMAS ROGAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1775490)
Defendant John Thomas Rogan appeals from a judgment entered after a jury found him guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378 - count 1), transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a) - count 2), and giving a false name to a police officer (Pen. Code, § 148.9 - count 5). The jury also found that defendant possessed 57 grams or more of methamphetamine for sale (Pen. Code, § 1203.073, subd. (b)(2)) in connection with counts one and two. The trial court found true the allegations that defendant had a prior conviction for possession of methamphetamine for sale (Pen. Code, § 1203.07, subd. (a)(11)) and had served three prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to a six-year term to be served in county jail pursuant to Penal Code section 1170, subd. (h)(5).
Defendant was also charged with possession of marijuana for sale (Health & Saf. Code, § 11359, subd. (b) - count 3) and transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)(2) - count 4). The jury was unable to reach a verdict on these counts and they were eventually dismissed.
On appeal, defendant contends: (1) the trial court erred when it admitted evidence of his prior offenses; (2) the trial court erred when it admitted hearsay evidence; (3) the trial court violated his due process rights when it imposed assessments and a fine without determining his ability to pay them; and (4) the punishment imposed for two prior prison term enhancements must be stricken. We conclude that the judgment must be modified to strike the two prior prison term enhancements. As modified, the judgment is affirmed.
We have granted defendant's motion to withdraw his argument that he was deprived of his right to present a defense.
I. Statement of Facts
A. The Prosecution Case
1. Charged Offenses
At approximately 1:13 a.m. on October 14, 2017, Deputy Michelle Metcalf was stopped at an intersection when she observed that a white Audi had false registration tags. When the Audi pulled into a gas station, the deputy parked behind it. Defendant was the driver and a female, who was later identified as Amber Perry, was seated in the front passenger seat. Defendant told the deputy that his name was Brian Grogan. Deputy Metcalf asked dispatch to perform a check using the name and date of birth that defendant provided. While she was waiting for the results, she noted that defendant and the passenger were "extremely nervous." Defendant rubbed his hands through his hair and Perry "kind of leaned forward" in a "defeatist pose." They then began "kissing as if they were saying their goodbyes." Meanwhile Deputy David Blomdal arrived at the scene.
Deputy Metcalf was informed that dispatch was unable to find the name Brian Grogan. She asked defendant to exit the car so she could conduct an inventory search prior to having the vehicle towed for false registration tags. She also conducted a pat search of defendant. The deputy felt something in his pocket and asked, "Might be some drugs?" Defendant responded, "It might be meth." She pulled a bag of methamphetamine and $553 in cash out of defendant's pocket. The methamphetamine weighed 13.99 grams. The cash included: one $100 bill; 20 $20 bills; three $10 bills; four $5 bills; and three $1 bills. A search of Perry's person did not reveal any methamphetamine, marijuana, or cash. She also found a Ziploc bag containing 41.34 grams of methamphetamine in the center console, an empty cigarette carton containing a baggie of 13.84 grams of methamphetamine by "the E-brake between the two front seats," and a woman's perfume bottle in the glove compartment. A brown baggie that contained 1.03 grams of methamphetamine was found on the rear passenger floorboard.
Deputy Blomdal searched the front passenger compartment of the Audi. There was nothing in the front passenger door pocket. There were two backpacks on the front passenger floorboard: a "purse" backpack in front of the passenger seat; and a "school backpack," which was located "more underneath the seat . . . ." The purse backpack contained women's articles, such as makeup, a wallet that the deputy linked to Perry, and a jar of marijuana. There were no zip-top bags in this backpack. The school backpack contained: a brown paper bag of 387.8 grams of methamphetamine; a smaller baggie of 1.46 grams of methamphetamine; a digital scale; and "a large stack" of zip-top clear plastic bags.
After finding the methamphetamine, Deputy Metcalf again asked defendant for his name. Defendant correctly identified himself. Based on defendant's "drowsy" demeanor and slurred speech, the deputy concluded that he was under the influence of drugs. She decided to search the trunk. When she had difficulty opening it, defendant told her to put the key in the driver's side door and turn it two or three times. She eventually opened the trunk. As she moved items, she smelled marijuana. There was 180 grams of marijuana packaged in plastic baggies.
Deputy Bryan Fickes testified as an expert in the "[r]ecognition of methamphetamine and . . . of a usable amount of methamphetamine" and "[p]ossession . . . and transportation of methamphetamine for sale." He opined that the amount of methamphetamine typically possessed for personal use is .1 to .25 grams. A mid-level dealer will typically possess between a half-pound and a pound (454 grams) at a time while a "substantial player" in the drug trade will possess up to a kilogram (2.2 pounds) at a time. In order to avoid detection, mid- and high-level dealers use concealed compartments in vehicles to transport drugs. Less sophisticated dealers and those who are also users will place the drugs throughout the vehicle such as on the backseat or under a child's car seat. Lower level drug dealers include those who use the drugs as well as sell them.
In Deputy Fickes's opinion, the bag containing 387.8 grams initially contained a full pound of methamphetamine. He explained that this amount was "not a typical denomination in which methamphetamine is sold" and "the person probably or most likely started with a larger supply . . . ." He also opined that the 387.8 grams would be broken down into smaller quantities to be sold. The baggie containing 13.84 grams was prepackaged for sale. The baggie containing 1.46 grams was "almost all powder" and is typically sold to the low-end user. The baggie containing 13.99 grams was prepackaged at the half ounce weight for "mid-level dealers to then sell to lower-end level dealers." He opined that possession of two bags of two half ounces and cash in various denominations is "a very common tactic amongst drug dealers." Based on a hypothetical which included the facts of this case, Deputy Fickes opined that the methamphetamine found in the Audi was possessed for sale and was being transported for sale.
2. Prior Offenses
On July 3, 2014, Officer Jonathan Anderson observed a vehicle changing lanes without signaling. Defendant was the driver of the vehicle, but he was not the registered owner. When defendant exited the vehicle, he was holding a blue cloth bag and $245 in currency and stated that he had a knife. He also displayed signs that he was under the influence of methamphetamine. When Officer Anderson searched the vehicle, he found a glass smoking pipe with burnt residue, a syringe, and two lighters. There were three baggies containing methamphetamine in the blue bag. The methamphetamine and baggies weighed approximately 31 grams. There was also a digital scale in the back passenger seat as well as some baggies in the rear compartment area. There was one $100 bill, five $20 bills, two $10 bills, and five $5 bills on the driver's seat. There were also two boxes of Ziploc baggies in the back passenger seat on the floor. The baggies were similar to the baggies that were in the blue cloth bag. Officer Anderson observed two cell phones that "were always ringing" from different people. One of the phones received a message asking "if the subject could deliver a half ounce and . . . if he had any pills for sale." There was a Ziploc baggie with two pills of MDMA in the driver's side door compartment. There were no passengers inside defendant's vehicle. There was no methamphetamine or a weapon on defendant. Defendant was convicted of possession of methamphetamine for sale based on this incident.
On November 7, 2015, Officer Jesse Morgan conducted a traffic stop of a U-Haul van. Defendant was driving the van, but the van was not registered to defendant. Defendant exited the van and ran away, but was eventually apprehended. Officer Morgan searched the van and found: five baggies of methamphetamine; a hypodermic needle which appeared to contain some blood; a smaller baggie of a black tar heroin; a digital scale; plastic sandwich bags, $104 in cash; and a switchblade knife. When defendant was taken into custody, the police found a cell phone with messages related to sales. Defendant was convicted of possession of methamphetamine for sale and possession of heroin for sale based on this incident.
B. Defense Case
The defense theory was that Perry was the dealer, because the majority of the drugs were found nearest to her.
The sole defense witness was criminalist Christina Henry, who qualified as an expert in the area of processing fingerprints. Though some of the surfaces in the Audi allowed for the collection of fingerprints, Henry did not receive a request to process them. According to Henry, requests for fingerprint analysis in drug cases were "very infrequent . . . ."
II. Discussion
A. Admissibility of Prior Offenses
Defendant contends that the trial court erred when it admitted evidence of his three prior offenses of possession of a controlled substance for sale to show his intent to sell methamphetamine and his knowledge of the presence of methamphetamine and its illegal character.
Defendant does not challenge the admissibility of the evidence of the prior offenses to show a common plan to sell methamphetamine.
1. Background
The prosecutor brought an in limine motion to admit evidence of defendant's three prior offenses while defense counsel brought a motion to exclude the evidence. Following a hearing on the motions, the trial court ruled that the evidence was admissible to show defendant's "intent to sell" and knowledge that "there were drugs in the car beyond what was on his possession, in his pocket." Following the close of evidence, the trial court ruled that evidence of the prior offenses was also admissible to show a common plan. Thus, the trial court gave the jury a limiting instruction based on CALCRIM No. 375.
2. Legal Principles
" 'Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) Thus, evidence may be admitted to prove, among other things, intent, knowledge, or plan. (Evid. Code, § 1101, subd. (b).)
" 'When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.]' " (Fuiva, supra, 53 Cal.4th at p. 667.) Moreover, the trial court must determine under Evidence Code section 352 whether the probative value of the evidence of the prior offenses is "substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]" (People v. Davis (2009) 46 Cal.4th 539, 602 (Davis).)
Unlawful possession of methamphetamine for sale "requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) Transportation of methamphetamine "is established by carrying or conveying a usable quantity of [the] controlled substance [in question] with knowledge of its presence and illegal character." (Id. at p. 1746.) "A defendant's plea of not guilty puts in issue all the elements of the charged offense. [Citations.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 204 (Whisenhunt).)
" 'To be admissible to show intent, "the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance." ' [Citations.]" (Davis, supra, 46 Cal.4th at p. 602.) "Prior incidents of possession of an illegal drug are relevant to prove the knowledge element. [Citation.]" (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 754.)
" ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." [Citation.]' [Citation.]" (Fuiva, supra, 53 Cal.4th at pp. 667-668.)
3. Analysis
Defendant argues that the evidence of the prior offenses was not sufficiently similar to the charged offenses to show intent to sell or transport methamphetamine and his knowledge of the presence of methamphetamine. He further asserts that the evidence was highly prejudicial.
We agree with the trial court that the evidence of the prior offenses was relevant and admissible on the issues of intent and knowledge under Evidence Code section 1101, subdivision (b). There was evidence in both the prior and current cases that defendant had methamphetamine and indicia of narcotic sales, including scales, baggies, and a large amount of cash, in the vehicle he was driving. Defendant emphasizes that he was alone when he committed the prior offenses while the methamphetamine was accessible to him and Perry in the charged offenses. Though the evidence in the charged and uncharged offenses was not similar in every detail, it was sufficiently similar to show that in each instance defendant had the intent to sell the methamphetamine and had knowledge of both the presence of the contraband and its illegal character.
Relying on language in People v. Ewoldt (1994) 7 Cal.4th 380, defendant argues that evidence of intent is admissible only when possession of the controlled substance is conceded or assumed. However, the California Supreme Court has "repeatedly rejected this argument." (People v. Leon (2015) 61 Cal.4th 569, 599.) The Leon court stated: " '[A] fact finder properly may consider [(Evidence Code,)] [section 1101(b)] evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes [citation], and further (2) . . . "the factual similarities . . . tend to demonstrate that in each instance the perpetrator harbored" the requisite intent. [Citation.] There is no requirement that it must be conceded, or a court must be able to assume, that the defendant was the perpetrator in both sets of offenses.' " (Ibid., quoting People v. Soper (2009) 45 Cal.4th 759, 778.) Here, there was sufficient evidence to find that defendant committed both the prior and charged offenses and the factual similarities tended to show that he had the intent to sell the methamphetamine.
Defendant next contends that his knowledge of the nature of methamphetamine was not in dispute. He points out that he had 13.99 grams of methamphetamine and a methamphetamine pipe in his pocket and told the arresting officer that the item in his pocket "might be meth." The Attorney General counters that defendant did not offer to stipulate to knowledge of the illegal nature of methamphetamine and its presence. At issue here was whether defendant knew not only of the illegal nature of the methamphetamine, but also its presence in the other portions of the vehicle. Evidence that he had previously possessed and transported baggies containing varying amounts of methamphetamine in vehicles tended to show that he was aware of the presence of the methamphetamine in this case. Since the prosecutor was required to present evidence to support this element, the trial court did not abuse its discretion in concluding that the evidence was relevant. (Whisenhunt, supra, 44 Cal.4th at p. 204.)
Defendant also contends that the prejudicial effect of the prior offenses evidence outweighed its probative value.
In People v. Tran (2011) 51 Cal.4th 1040 (Tran), the California Supreme Court "identified several factors that might serve to increase or decrease the probative value or the prejudicial effect of evidence of uncharged misconduct and thus are relevant to the weighing process required by Evidence Code section 352. [¶] The probative value of the evidence is enhanced if it emanates from a source independent of evidence of the charged offense because the risk that the witness's account was influenced by knowledge of the charged offense is thereby eliminated. [Citation.] On the other hand, the prejudicial effect of the evidence is increased if the uncharged acts did not result in a criminal conviction. . . . The potential for prejudice is decreased, however, when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense. [Citation.]" (Tran, at p. 1047.)
In the present case, the Tran factors support the trial court's ruling. Here, two police officers, who had no known relation to Deputies Metcalf and Blomdal, testified regarding the prior offenses. And contrary to defense counsel's representation in the opening brief, the jury was informed that the prior offenses resulted in convictions. In addition, the evidence regarding the prior offenses was no more inflammatory than the evidence of the charged offenses since the prior and charged offenses involved similar conduct. Moreover, the trial court instructed the jury that it could consider the prior offenses evidence only as evidence of intent, knowledge, and plan, and not to consider this evidence as propensity or character evidence. " 'We presume that jurors understand and follow the court's instructions.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1005 (Hovarter).) Thus, any prejudicial impact of the prior offenses evidence was mitigated by the jury instructions.
In sum, the trial court did not abuse its discretion when it admitted the evidence of his prior offenses under Evidence Code sections 1101, subdivision (b) and 352.
B. Admissibility of Text Message
Defendant argues that the trial court erred when it admitted evidence of the text message that he received during the 2014 offense, because this evidence constituted inadmissible hearsay.
Officer Anderson testified that while he was investigating the 2014 offense, defendant's phone received a text message asking "if the subject could deliver a half ounce and . . . if he had any pills for sale." The trial court overruled defense counsel's hearsay objection.
Hearsay is defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) We review a trial court's ruling on the admissibility of evidence under the abuse of discretion standard. (Hovarter, supra, 44 Cal.4th at pp. 1007-1008.) The erroneous admission of hearsay constitutes reversible error under the Watson standard. (People v. Duarte (2000) 24 Cal.4th 603, 618- 619.) Under this standard, the error is harmless if it is reasonably probable the defendant would have obtained a more favorable result in the absence of error. (Watson, supra, 46 Cal.2d at p. 836.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
In People v. Jurado (2006) 38 Cal.4th 72, the declarant asked a friend if "he could get her a 'gat' (a slang term for a gun)" and she "explained that she had a problem she needed to take care of." (Id. at p. 84.) The California Supreme Court concluded: "The request for the gun, by itself, was not hearsay, however, because an out-of-court statement is hearsay only when it is 'offered to prove the truth of the matter stated.' [Citation.] Because a request, by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the matter stated. [Citations.]" (Id. at p. 117.) Here, the content of the text message was requesting delivery of "a half ounce" and "any pills for sale" was functionally the equivalent to the request for a "gat" in Jurado. The relevance of the request was that it was made on defendant's phone, but the request itself has no underlying truth. Thus, the evidence was not barred by the hearsay rule.
Defendant acknowledges the holding in Jurado, but cites to People v. Morgan (2005) 125 Cal.App.4th 935 (Morgan) and People v. Garcia (2008) 168 Cal.App.4th 261 (Garcia) for the proposition that such requests are implied hearsay.
In Morgan, when an officer answered the phone during a search of the defendant's house, the caller said he needed drugs and asked if he had any. (Morgan, supra, 125 Cal.App.4th at p. 939.) The Morgan court concluded that the caller's statements, that is, that he desired drugs and believed that the defendant could provide them, were "implied assertions" and therefore hearsay. (Id. at p. 943.) But the court also concluded that the hearsay rule did not bar the admission of such evidence on the theory that "implied assertions" are more reliable than statements subject to exclusion under the hearsay rule. (Id. at p. 944.) Thus, the Morgan court held that the request for drugs constituted an exception to the prohibition against hearsay. (Ibid.) We fail to understand how Morgan supports defendant's position, since the text message in the present case would also be admissible as an exception to the hearsay rule.
In Garcia, the defendant challenged the admission of a note that his cellmate wrote. The Garcia court stated: "The statement . . . that 'they are tripping in court that I'm doing or did you a favor on that' expressly asserts that 'they are tripping in court'; it does not expressly assert that [the cellmate] actually did [the defendant] the favor that others were 'tripping' about in court. The statements, '[T]ell [Gretchen] that someone else wrote it, not us or me,' and 'Make sure you tell Gretchen we don't have nothing to do with that . . . ,' are not factual assertions; they are requests or directions to make particular representations to a third person." (Garcia, supra, 168 Cal.App.4th at pp. 288-289.) Relying on Jurado, supra, 38 Cal.4th at p. 117, the court recognized that "[r]equests and words of direction generally do not constitute hearsay." (Garcia, at p. 289.) But the court also found that the statements could be viewed as implied hearsay and explained: " 'An implied statement may be inferred from an express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a recipient of declarant's express statement would reasonably believe that declarant intended by his express statement to make the implied statement.' [Citation.]" (Ibid.) The Garcia court concluded that any error in the admission of the evidence was harmless. (Id. at p. 292.)
Even assuming that the evidence in the case before us was erroneously admitted under the implied hearsay theory set forth in Garcia, the error was harmless. The testimony about the request constituted "a minor part of the prosecution's case." (People v. Elliot (2005) 37 Cal.4th 453, 473.) There was overwhelming evidence of defendant's guilt of the 2014 offense: he possessed more than 30 grams of methamphetamine and was ultimately convicted of possession of methamphetamine for sale. Thus, it is not reasonably probable that the exclusion of the text message would have resulted in a different outcome at trial. (Watson, supra, 46 Cal.2d at p. 836.)
Defendant contends that the cumulative impact of the errors in this case deprived him of due process. Since we assumed only a single error, which we found harmless, there is no cumulative impact of errors in this case. (People v. Rountree (2013) 56 Cal.4th 823, 860.)
C. Assessments and Fine
Relying on People v. Duenas (2019) 30 Cal.App.5th 1157, defendant argues that the trial court violated his due process rights when it imposed a court operations assessment of $120 (Pen. Code, § 1465.8), a court facilities assessment of $90 (Gov. Code, § 70373), and a restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)) without determining whether he had the ability to pay the assessments and fine. We recently rejected this same argument in People v. Petri (2020) 45 Cal.App.5th 82, 90-92 (Petri).) We will continue to follow the Petri analysis.
D. Prison Prior Enhancements
The trial court imposed two consecutive one-year terms based on defendant's two prior prison terms. Defendant contends, and the Attorney General agrees, that the two prior prison term enhancements must be stricken based on an amendment to Penal Code section 667.5, subdivision (b).
The trial court struck the third prior prison term enhancement pursuant to Penal Code section 1385.
Senate Bill No. 136 (2019-2020 Reg. Sess.) amended Penal Code section 667.5, subdivision (b) and limited the imposition of a one-year prior prison term enhancement to cases in which the defendant's prior prison term was for a sexually violent offense. (Petri, supra, 45 Cal.App.5th at pp. 93-94.) The amendment became effective on January 1, 2020, and applies to "all defendants whose judgments are not yet final on the statute's operative date. [Citations.]" (Id. at p. 94.)
Here, defendant's prior prison terms were not for sexually violent offenses and the judgment is not yet final. In addition, since the trial court imposed the upper term on count two, stayed the midterm of two years for count one pursuant to Penal Code section 654, and imposed a concurrent term of six months for count five, we need not remand the case for resentencing. Accordingly, we will order the Penal Code section 667.5, subdivision (b) enhancements stricken.
Since we conclude that the prior prison term enhancements must be stricken, we need not consider defendant's contention that there was insufficient proof that defendant suffered more than one prior prison term.
III. Disposition
The judgment is modified to strike the two one-year enhancements under Penal Code section 667.5, subdivision (b). As modified, the judgment is affirmed.
/s/_________
Mihara, J. I CONCUR: /s/_________
Elia, J.
PREMO, Acting P.J., Concurring and Dissenting.
I concur with my colleagues' resolution of Rogan's claims with the exception of their rejection of People v. Dueñas (2019) 30 Cal.App.5th 1157. I respectfully dissent from their conclusion that Dueñas was wrongly decided. Accordingly, I would remand the matter to the trial court for a hearing on Rogan's ability to pay. (People v. Santos (2019) 38 Cal.App.5th 923, 933-934.)
Concurring and Dissenting:
/s/_________
Premo, Acting P.J.