Opinion
G054871
06-19-2018
Alex Kreit, 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, Michael Pulos and Kathryn Kirschbaum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF1010) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael Murray, Judge. Affirmed. Alex Kreit, 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, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Laura Ann Somerset contends on appeal her convictions for possessing methamphetamine for sale (Health & Saf. Code, § 11378; all undesignated statutory references are to this code), and transporting methamphetamine for sale (§ 11379, subd. (a)) are not supported by the evidence and the trial court prejudicially erred in sustaining objections to evidence relating to her drug expert's credibility. We conclude the convictions are supported by substantial evidence and even if the trial court erred in its evidentiary rulings, she was not prejudiced by the rulings. We affirm the judgment.
I
FACTS
Defendant was charged in the superior court with transporting methamphetamine for sale (§ 11379, subd. (a); count one), possessing methamphetamine for sale (§ 11378; count two), and driving on a suspended license (Veh. Code, § 14601.2, subd. (a); count three). Trial on the Vehicle Code violation was bifurcated from the trial of the drug charges. The jury found defendant guilty of both the drug charges and defendant pled guilty to the Vehicle Code violation. The court placed defendant on probation, imposed a 364-day jail term, and stayed half of the jail time on the condition defendant complete a six-month residential drug program.
On December 21, 2014, Fullerton Police Officer Scott Flynn saw defendant driving a black BMW. He conducted a traffic stop on the vehicle. Flynn asked defendant if there was anything illegal or drugs inside her vehicle. She said there was not. Flynn asked for and obtained consent to search the vehicle. Flynn found a number of women's purses inside the passenger compartment. One of the purses contained a wallet. Inside the wallet was $227, consisting of two $100 bills, a $20 bill, a $5 bill, and a $2 bill. He also found torch lighters in the vehicle.
In searching under the hood, Flynn noticed the fuse box in the upper corner of the driver's side appeared clean compared to the rest of the engine compartment. Because it was clean, Flynn thought the fuse box had recently been accessed. He looked inside and saw a cigarette box. Inside the cigarette box were a plastic baggie containing a white crystalline substance, and a glass pipe with a white residue. Flynn, a drug recognition expert, opined the substance was methamphetamine. Defendant said she forgot the methamphetamine was in the vehicle.
Flynn said the methamphetamine was in a fine, ground form, but also contained "larger shards." He stated methamphetamine can be smoked with a glass pipe similar to the one he found under the hood of defendant's vehicle. The methamphetamine is then heated up, typically with a torch lighter because more heat is required than that made by a cigarette lighter. Whether methamphetamine is smoked, injected, or snorted, it must be in a ground, powdered form. He said shards are found in larger amounts of methamphetamine and that he typically finds large shards when people are selling methamphetamine.
Flynn arrested defendant and advised her of her Miranda rights. She admitted the methamphetamine was hers. She said she purchased 3.5 grams about two weeks earlier, used some—she uses about a gram once a week—and there should be 2.5 grams left. At first, she said she bought the methamphetamine for $300. She later said she bought it for $200, $150, and then back to $300 again. Defendant also stated she gives methamphetamine to her friends. As an example, she said she gives methamphetamine to friends who work on her vehicle, instead of paying cash for the work done. She called it a "bartering system."
Miranda v. Arizona (1966) 384 U.S. 436.
According to Officer Orlando Lopez, who assisted Flynn in the car stop, defendant said she was the caretaker for her ex-boyfriend. She also said she receives about $200 a month from a government program. On cross-examination, Lopez stated defendant told him she was on disability.
Flynn weighed the methamphetamine. Including the plastic baggie, it weighed 16.5 grams. When he told defendant the weight, she said he needed to check the diagnostics on his scale. Flynn also performed a presumptive test of the substance. It tested positive for methamphetamine. The crime lab weighed just the methamphetamine. It weighed 11.748 grams. According to Flynn, 3.5 grams of methamphetamine would sell for $80 to $150, not $300.
Flynn looked through defendant's cell phone with her permission. One text message from "Carol" stood out to him. It stated: "'Are you still at the house, if you are, can you leave me something in the center console of the couch? I just finished my job in Irvine.'" When asked about the text, defendant denied its existence.
Flynn said he has never seen a person possess 11.75 grams of methamphetamine for personal use. He has seen very small shards possessed for personal use, but when there were multiple shards, they had been possessed for sale. On cross-examination, Flynn said the amount of methamphetamine, which could equate to 585 doses, the money found in the vehicle, and the fact that defendant trades methamphetamine for work on her vehicle, provides methamphetamine to friends, and the text message from Carol tend to indicate she possessed the methamphetamine for sale.
Flynn based his calculation on a dosage of .02 gram, the smallest dosage he has heard of. --------
Officer Donald Blume testified as a drug expert for the prosecution. He was familiar with the facts of the case. He said recreational users usually buy enough methamphetamine for one day's use. A gram of methamphetamine sells for about $25. In 2014, the cost would have been about $50. In 2014, 3.5 grams would cost about $150 and half an ounce would sell for about $250.
Blume said the text message from Carol wherein she requested "'something'" be left for her "related to narcotics sales." He said it is common from dealers and their buyers to communicate through texts. In most instances the drug is not referred to by its name, because the parties already know what they are talking about. In response to the prosecutor's hypothetical that tracked the evidence in this matter, Blume opined the methamphetamine was possessed for sale.
The defense presented the testimony of its own drug expert, Joseph Klein, a former Fullerton Police Officer for 29 years. He testified as an expert for the prosecution "hundreds of times" when he was a police officer. Klein reviewed the police reports and recordings in this case. He stated the location of the methamphetamine—hidden in the fuse box of the BMW—indicates only that the drug was being hidden, not that it was possessed for sale or for personal use. The fact that the methamphetamine was found in one baggie, not multiple baggies, indicates the drug was possessed for personal use. The fact that the glass smoking pipe was found with the methamphetamine also points to the drug being possessed for personal use. The same is true of having a torch in close proximity to the methamphetamine. Klein said the denomination of the money found in defendant's wallet is insignificant; it was not consistent with sales of any amount defendant had in the vehicle. He also said 11.74 grams is "not a large quantity" and is consistent with personal use; he has seen people consume an ounce in a couple of days. Klein said the presence of shards is indicative of the way the methamphetamine was manufactured, and "has nothing to do with sales." To Klein, the text message does not suggest drug sales.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends the evidence does not support her convictions for transporting methamphetamine for sale (§ 11379, subd. (a)), and possessing methamphetamine for sale (§ 11378). "[W]e review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1212.) "To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Johnson (1993) 6 Cal.4th 1, 38.)
To be convicted of transporting methamphetamine for sale, the prosecution must prove beyond a reasonable doubt the defendant transported methamphetamine, knew of its presence and its nature as a controlled substance, and the methamphetamine was a useable substance. (§ 11379, subd. (a); CALCRIM No. 2300.) The element of transportation requires the defendant to have carried or moved the methamphetamine from one location to another for sale. (§ 11379, subd. (c); CALCRIM No. 2300.) Section 11378 prohibits possession of methamphetamine for sale.
Defendant did not contest her possession of the methamphetamine. Rather, her defense to the charges was that she did not intend to sell the drug.
This was not an open and shut case for the prosecution. The methamphetamine was found in a single baggie with a pipe for smoking the drug kept with the methamphetamine. Torch lights for smoking the drug were also found in defendant's vehicle. The presence of the pipe and the torch lights tends to indicate defendant uses methamphetamine. The fact that there was evidence from which the jury could quite reasonably have concluded defendant possessed the methamphetamine for her own personal use does not mean the evidence was insufficient to convict her of possessing the methamphetamine for sale and transporting it for sale.
Defendant did not admit possessing the methamphetamine for sale. Neither was she observed to have sold methamphetamine to anyone, however, "[i]ntent to sell may be established by circumstantial evidence." (People v. Harris (2000) 83 Cal.App.4th 371, 374.) In this matter, the circumstantial evidence, although not overwhelming, was more than sufficient for a reasonable jury to find beyond a reasonable doubt defendant possessed the methamphetamine for sale.
Police found 11.748 grams of methamphetamine hidden in the engine compartment of defendant's vehicle. One prosecution expert testified he has never seen a person possess that amount of methamphetamine for personal use. He said the amount of methamphetamine found contained up to 585 possible doses. Another prosecution expert stated recreational buyers only purchase enough for one day's use. Possession of an amount far exceeding normal use of an individual supports a conviction for possessing drugs for sale. (People v. Newman (1971) 5 Cal.3d 48, 53.)
In addition, defendant told police she uses methamphetamine in a "bartering system" whereby she trades it for services. Specifically, she said she pays friends who work on her vehicle in methamphetamine instead of cash. That still qualifies as sales. "[A] 'sale' of drugs 'includes transfers other than for money.' [Citation.]" (People v. Peck (1996) 52 Cal.App.4th 351, 357.) Thus, there was evidence defendant has sold methamphetamine.
There was other evidence supporting the charges. A text message found on defendant's cell phone from "Carol" requested defendant "leave me something in the center console of the couch" at defendant's residence. One prosecution expert stated this evidence supported the conclusion defendant possessed the methamphetamine for sale. Granted, the text did not identify methamphetamine as the "something" Carol wanted left for her, but that is one reason an expert's testimony on the issue was admissible. A juror might not understand the meaning of coded language contained in a text, but a second prosecution expert stated the text "related to narcotics sales." That expert said dealers and buyers of narcotics commonly communicate through texts and when they do, there is no need to mention the drug by name because the parties already know what is being referenced. The defense's expert agreed buyers and sellers do not usually use the name of the drug being sold. It makes sense that those involved in drug transactions would want to avoid specifically referring to drugs by name in texts in order to evade detection from unwanted prying eyes.
The drug convictions are supported by substantial evidence. The testimony of the prosecution experts was supported by the facts. "In [drug possession cases], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purposes of sale have been upheld. [Citations.]" (People v. Newman, supra, 5 Cal.3d at p. 53, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.) The dispute between the testimony of the prosecution experts and the defense expert "involve simple conflicts in the evidence that were for the jury [and not this court] to resolve." (People v. Friend (2009) 47 Cal.4th 1, 41.) B. Exclusion of Evidence
"The trial court is vested with wide discretion in determining the admissibility of evidence." (People v. Karis (1988) 46 Cal.3d 612, 637.) We review the trial court's evidentiary rulings, including those "that turn on the relative probativeness and prejudice of the evidence in question" for an abuse of discretion. (People v. Hamilton (2009) 45 Cal.4th 863, 930.) Reversal based on the improper exclusion of evidence is permitted only when review of the entire cause demonstrates the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Breverman (1998) 19 Cal.4th 142, 173.) A miscarriage of justice exists "if, '"after an examination of the entire cause,"' we conclude it is 'reasonably probable' that a result more favorable to defendant would have resulted had [the error not occurred]. [Citation.]" (People v. Hendrix (2013) 214 Cal.App.4th 216, 248.)
Only relevant evidence is admissible. (Evid. Code, § 350.) "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Given that a jury may consider "'[t]he existence or nonexistence of a bias, interest, or other motive' for giving . . . testimony" (People v. Price (1991) 1 Cal.4th 324, 422), evidence concerning whether a witness has a bias or motive in testifying is relevant. (Ibid.) The definition of "relevant" in Evidence Code section 210 "includes evidence 'relevant to the credibility of a witness.'" (People v. Contreras (2013) 58 Cal.4th 123, 152.)
Defendant argues the trial court prejudicially erred when it sustained the prosecutor's relevance objections to six questions she asked Klein on redirect. On cross-examination of Klein, the prosecutor elicited evidence that Klein estimated he would make about $1,750 working as an expert on this case. The fact that he was being paid $175 an hour on this matter, however, was brought out on direct examination. Also on cross-examination, Klein testified 60 to 75 percent of his consulting business is on behalf of the public defender's office. According to defendant, because "[t]he People elicited testimony that tended to show Klein might be biased toward defendant because of the amount of money he earns as an expert and the percentage of his business that comes from the Orange County Public Defender's Office," the trial court prejudicially erred when it sustained the prosecutor's relevance objection on redirect concerning the number of cases Klein has declined or was hired by the defense and concluded the drugs were possessed for sale. Defendant's theory is that once the prosecution introduced such evidence as a bias—i.e., that Klein testified to possession for personal use so he would curry favor with the public defender and obtain more consultations—it was entitled to show Klein finds drugs were possessed for sale more often than not.
As defendant points out, "'[i]f a party introduces evidence which tends to impeach a witness of his opponent, the latter may in rebuttal offer evidence to support his witness' credibility. [Citation.]'" (People v. Adamson (1953) 118 Cal.App.2d 714, 719.) In other words, evidence to support the witness's credibility would then be relevant. On the other hand, "[a] fact may bear on the credibility of a witness and still be collateral to the case. [Citation.]" (People v. Contreras, supra, 58 Cal.4th at p. 152.)
We need not determine whether the trial court erred in sustaining the prosecution's relevance objections because even were we to assume the trial court had erred, defendant was not prejudiced by the rulings. Despite the trial court sustaining the prosecutor's objection to whether Klein frequently declines cases, Klein testified he recently turned down a case from another deputy public defender because he concluded the drugs were possessed for sale. Additionally, Klein said he privately consulted on 170 cases prior to the present matter and only testified in 31 of those cases. He also said he does not testify when he concludes the drugs were possessed for sale and only testifies when he opines the drugs were possessed for personal use. Thus, the defense introduced evidence that Klein finds drugs were possessed for sale more often than not.
When asked why he would not testify for the defense even if he found the drugs were possessed for sale, he stated, "I would never do that, it would affect my credibility and everything I stand for." He added that he had no vested interest in the outcome of this case "one way or the other" and that he gets paid for his time even if he finds the drugs were possessed for sale. While the prosecutor was free to argue Klein had a financial incentive to testify for the defense, the jury was aware Klein only testifies when he concludes the drugs were not possessed for sale, he has concluded in the vast majority of cases upon which he has consulted that the drugs were possessed for sale, he gets paid regardless of his opinion on the issue, and he has outside income from his teaching and his retirement from the Fullerton Police Department after 29 years. Defendant was not prejudiced under the federal or state standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.