Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09601
SIMS, Acting P. J.Defendants Yer Yang and Ge Yang, who are wife and husband, appeal following convictions for possession of controlled substances (opium and methamphetamine) for sale while personally armed with a firearm (Health & Saf. Code, §§ 11351, 11378; Pen. Code, § 12022, subd. (c) ); possession of methamphetamine by Ge Yang (Health & Saf. Code, § 11377, subd. (a)); and child endangerment by Yer Yang (§ 273a, subd. (a)). In separate appellate briefs but joining in each others’ contentions, defendants assign reversible error to denial of their suppression motion, evidentiary rulings, and prosecutorial misconduct. We shall order correction of the abstract of judgment. We shall otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged both defendants with (1) possession of a controlled substance (opium) for sale on November 2, 2006 (Health & Saf. Code, § 11351), while personally armed with a firearm (§ 12022, subd. (c)); and (2) possession of methamphetamine for sale on November 2, 2006 (Health & Saf. Code, § 11378), while personally armed with a firearm. A third count was dismissed. Count Four alleged child endangerment likely to produce great bodily injury (§ 273a, subd. (a)) by Yer Yang only, on November 2, 2006. Count Five alleged possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) by Ge Yang only, on March 21, 2007.
The trial court denied defendants’ motion to suppress all evidence as the product of a warrantless search of defendants’ home. According to evidence adduced at the hearing on the suppression motion, the police went to the house because they had information that a person on searchable probation (who is not a party to this case) lived there, and there might be drug dealing there. The officers saw drugs and a gun in plain view during a protective sweep for officer safety. They froze the scene and obtained a search warrant.
Evidence adduced at trial included the following:
On November 2, 2006, three uniformed police officers went to defendants’ residence shortly before 7:00 p.m. to conduct a search. A male outside the house (La Yang), who said he lived there, confirmed it was also the residence of the person the police sought (who apparently was not home at the time), and let the police into the house through a side door that opened into the kitchen. There were a lot of people in the house (later determined to be residents, relatives, and one friend). A female teen squeezed in through the door, past an officer, and ran through the house, making the officers anxious she was trying to alert people of the police presence, people who might arm themselves. When the girl disregarded the officer’s direction to stop, Officer Joseph Ellis ran after her. She ran into and out of the garage. The officer entered the garage and saw a “bunch of smoke in the air” (which smelled something like cigarette smoke) and a piece of plywood, large enough to conceal someone, against the wall. The officer, assuming someone was there, said, “put your hands up,” and two males (defendant Ge Yang and a friend) emerged. The officer saw smoking pipes in the garage but did not collect them because he could not tell what was smoked in them.
The People say the officers told La Yang they intended to conduct a probation search, but the cited testimony was given at the suppression hearing, not at trial.
Meanwhile, Officer David Hogge conducted a protective sweep of the house for officer safety, to round up any people who were in the house and place them in the living room. La Yang accompanied him. The officer checked two bedrooms. He then approached the master bedroom, which La Yang said was his parents’ room. The officer entered, saw no one in the bedroom, turned into a hallway within the bedroom which led to a walk-in closet and bathroom, and saw an older Asian female (Yer Yang) squatting at a small wooden table at the open closet entrance. On the table were a scale, scissors, chopped pieces of a hard black substance (later determined to be opium), some of it in small (“one-by-one”) baggies, and numerous empty baggies. A small female Asian child stood holding a baggie open in front of Yer Yang. The officer handcuffed Yer Yang, looked around “to take a look at my surroundings” and noticed a gun holster and magazine on the top shelf of a small closet opposite the walk-in closet. He stood on “tippy toes” to see if the magazine was connected to a handgun, and he saw that it was.
The officers summoned a narcotics team and froze the scene while they obtained a search warrant, which, when executed, disclosed methamphetamine in the master bedroom and two loaded guns.
Officer Ellis testified at trial that defendant Ge Yang gave a statement at the house, through an interpreter, that (1) the opium was his -- he used it to help with back pain; (2) methamphetamine found in a fanny pack in the master bedroom was his -- he used it to make himself “feel good”; (3) a shotgun found in the house was his -- he used it for hunting and did not notice the serial number was filed off; and (4) a pistol found in the house was his, having been abandoned there months earlier by his brother-in-law.
Ge Yang was not kept in custody the day of the search, due to poor health. When he was arrested a few months later pursuant to an arrest warrant, he had methamphetamine in his shirt pocket and jacket pocket (which formed the basis for Count Five - possession of methamphetamine).
A criminalist testified the substances found in the master bedroom were opium (a total of 43 grams or about an ounce and a half) and methamphetamine (a total of 12 grams or less than half an ounce), some of which had been separated into small baggies. Opiates contain morphine and codeine, can be used as painkillers, and are highly addictive.
Other evidence taken from the master bedroom closet area included empty baggies, scissors, and a digital scale. The search also revealed a surveillance camera hooked up to a small television in the garage.
Police Detective Chou Vang testified as an expert on the sale of opium and methamphetamine. He opined defendants were selling the opium found in the house, because a regular user who used opium only for himself would not need the scale or separate baggies. A wife preparing doses for her husband might use a scale, scissors and baggies, but it is more likely she would know, just as the chronic user would know, how much to pinch off without having to undergo the “painstaking” process of cutting and weighing it. A heavy user of opium could use one and a half grams per day, or 45 grams per month. Forty-three grams costs about $700 purchased in bulk and, individually packaged for sale, could have a street value of $2,400.
Vang opined the methamphetamine was also possessed for sale, based on the scale and how the drug had been divided into multiple baggies. A heavy user of methamphetamine could use one and a half grams per day. Vang said drug dealers often have firearms for protection against customers or dealers who may attempt to steal from them. Drug dealers also use surveillance cameras to protect against theft and surprise visits from the police.
A police detective testified to the danger of exposing small children to drugs.
Evidence was adduced concerning the family’s income and expenses.
Defendants did not dispute possession of the drugs but disputed selling drugs. The defense elicited evidence that the police did not find items often found where drugs are sold, such as police scanners, cell phones or pagers, pay-owe sheets, customer lists, large amounts of cash, or expensive items. No one knocked on the door or phoned while the police were at defendants’ house. The police did not question neighbors as to whether there were a lot of people coming and going, as might be expected if drugs were being sold.
Defendant Yer Yang (wife) testified for the defense. She and her husband are Hmong. They did not sell drugs. Ge Yang uses all the drugs himself to relieve pain from physical injuries to his back, intestine and stomach, which occurred in 1973 and 1974. He is very addicted to opium and smokes it in the garage. Yer Yang cuts and packages it to regulate his intake, because otherwise he uses it too quickly and comes to her for money to buy more, and she does not want him to overdose. She doles it out to him in individual doses. The amount confiscated by police would have lasted him a couple of months. The little girl was not helping Yer Yang but had appeared just before the officer entered. Ge Yang said she did not know there were guns in the house.
Defendants’ older children testified in defense of their parents. The teen testified she ran to get away from the officers.
The jury found Yer Yang: Guilty of possessing opium for sale, while personally armed with a firearm (Count One); guilty of possessing methamphetamine for sale, while personally armed with a firearm (Count Two); and guilty of child endangerment likely to produce great bodily injury (Count Four).
The jury found Ge Yang: Guilty of possessing opium for sale, while personally armed with a firearm (Count One); guilty of possessing methamphetamine for sale, while personally armed with a firearm (Count Two); and guilty of possession of methamphetamine (Count Five).
The trial court sentenced Yer Yang to prison for five years, consisting of the lower term of two years for possessing opium for sale, enhanced by the lower term of three years for the firearm. The court imposed concurrent terms of one year, four months for possessing methamphetamine for sale, plus a three year firearm enhancement, and four years for the child endangerment.
The court sentenced Ge Yang to prison for seven years, eight months, consisting of the middle term of three years for possessing opium for sale, plus a four year enhancement for the firearm, plus a consecutive one-third middle term of eight months for possessing methamphetamine (Count Five). The court imposed a concurrent term of two years for possessing methamphetamine for sale (Count Two) plus the four year firearm enhancement.
DISCUSSION
I. Denial of Suppression Motion
Defendants argue the trial court erred in denying their motion to suppress all evidence as the product of a warrantless search. We shall conclude the trial court (1) should have denied the motion as untimely, and (2) did not err in its conclusion on the merits.
A. Timeliness
1. Background
When the case was called for trial on March 3, 2008, the trial court said, “there were some other motions that you had, as I recall....” Yer Yang’s attorney referred to a “suppression motion that the Court’s going to hear as to the probation search.”
The prosecutor, “to make my record,” objected that the motion was untimely because it was the day of trial, she never received notice of the motion, had no written motion to which to respond, and was entitled to 10 days to respond. Defendants were not asked to and did not make any showing that they were prevented from making the motion earlier or were previously unaware of the ground of the motion, i.e., that the search was warrantless.
The trial court swore in the prospective jurors, and voir dire commenced.
The next day, March 4, 2008, Ge Yang filed a written suppression motion, and the trial court heard the suppression motion and denied it on the merits.
2. Analysis
Section 1538.5 sets forth the procedures for suppression motions, which constitute the “sole and exclusive remedies prior to conviction to test the unreasonableness of a search....” (§ 1538.5, subd. (m).) Section 1538.5, subdivision (f), states in part: “If the property or evidence [which is the subject of the suppression motion] relates to a felony offense initiated by a complaint [as was the case here], the motion shall be made only upon the filing of an information, except that the defendant may make the motion at the preliminary hearing, but the motion shall be restricted to evidence sought to be introduced by the people at the preliminary hearing.” Section 1538.5, subdivision (i), states as pertinent: “If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing... the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time.” (Italics added.)
Here, defendants’ only suppression motion was made when the case was called for trial on March 3, 2008. The prosecutor clearly objected that the motion was untimely.
Section 1538.5, subdivision (h), allows a belated motion during trial: “If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial.” We said in People v. Frazier (2005) 128 Cal.App.4th 807: “‘The procedural scheme established by... section 1538.5 displays a strong legislative preference for litigating prior to trial the legality of searches and seizures. [Citation.] Subdivision (h) of... section 1538.5 allows a motion to suppress to be heard during a trial only if “prior to the trial... opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion....’” [Citation.]” (Id. at p. 829 [trial court did not err in denying suppression motion as untimely].)
Here, defendants made no showing to come within the exception of section 1538.5, subdivision (h).
Defendants argue the motion was timely, because section 1538.5, subdivision (m), says a defendant may obtain appellate review provided that “at some stage of the proceedings prior to conviction” he or she has moved to suppress evidence. However, this wording obviously makes room for a delayed motion during trial where “opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion” before trial, as allowed by section 1538.5, subdivision (h). It does not allow a suppression motion to be made any time prior to conviction.
Defendants argue the motion was made before trial because it was made before the jury was sworn in. Defendants cite no authority that “prior to the trial” in section 1538.5, subdivision (h), means prior to swearing in the jury. To the contrary, “[a]s a matter of constitutional law, common understanding, and common sense, ‘trial’ in a criminal case includes the critical stage of jury selection [citation]....” (People v. Granderson (1998) 67 Cal.App.4th 703, 707 [discussing statute regarding absence of defendant after trial has commenced].) Jury selection began before defendant filed his suppression motion. Though he mentioned an intent to do so before the prospective jurors were sworn, a suppression motion must be in writing. (§ 1538.5, subd. (a)(2).)
Defendants, citing Carlton v. Quint (2000) 77 Cal.App.4th 690 at page 697, argue the prosecutor forfeited any defect by failing to request a continuance. However, Carlton involved a mere defect in notice of motion, not violation of a statutory deadline as is the case here.
We conclude the suppression motion was untimely, and it was incumbent upon the trial court not to entertain the motion. (People v. Smith (1973) 30 Cal.App.3d 277, 280.)
Even assuming for the sake of argument that the suppression motion could be entertained despite being untimely, we shall conclude the trial court properly denied the motion on its merits.
B. The Merits
1. Background
Sergeant Hogge testified he and Officers Ellis and Harrington went to defendants’ home to conduct a probation search of an occupant, Lani Phonesavanh, who was on formal searchable probation, and the police had received information that there might be drug dealing at that house. The uniformed officers parked a few houses away and approached on foot. Outside the home, they saw two or three persons. When asked if Lani lived there, one of the persons, who identified himself as La Yang, said yes and “volunteered to lead [the officers] into the house.” La Yang and the officers entered through the side kitchen door. There were about seven or eight people in the house. A female child (age 14) “all of a sudden” ran past Hogge and down a hallway, ignoring an officer’s admonition for her to stop. Ellis ran after the girl, and Hogge followed, methodically conducting a “protective sweep” of rooms because he was afraid the girl would alert other occupants about the officers’ presence, causing the occupants to arm themselves. The girl ran to the garage, then back into the house. In the garage, Ellis noticed smoke and a piece of plywood propped up against a wall. When the officer called for anyone present to come out, two men emerged (Ge Yang and nonparty Vang Thao). Meanwhile, Hogge, in conducting his protective sweep, entered a bedroom which La Yang said was his parents’ bedroom. As Hogge walked down a short hallway within the bedroom, he noticed Yer Yang squatting next to a small table in an opening to the walk-in closet, and a small child holding a plastic bag open near the table. On the table, Hogge saw a scale, empty packages, and something he believed to be narcotics, some in packages and some not. Hogge saw a holster and firearm magazine on a shelf in a small open closet. He raised up onto his toes and saw there was a firearm in the holster.
Hogge called for assistance from a narcotics investigation team which was operating in the neighborhood. The team arrived and the scene was frozen while a search warrant was obtained.
The trial court denied the suppression motion, stating, “I do find that the officers acted reasonably under the circumstance.... And I think that for me to say -- to grant your motion would be to effectively say that the officers -- that the officers acted inappropriately in terms of protecting themselves, other officers, with regard to what occurred.”
2. Analysis
On appeal from denial of the suppression motion, all presumptions are in favor of the trial court’s factual findings, where supported by substantial evidence, and we review de novo the facts favorable to the People to determine whether the officers’ conduct was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Ledesma (2003) 106 Cal.App.4th 857, 862.)
For purposes of this appeal, we shall accept defendants’ arguments that the police officers’ stated purpose -- to conduct a probation search of a third party who lived at defendants’ home -- did not authorize the police to enter defendants’ bedroom, because there was no indication the probationer had access to or authority over that room, and there was no indication that the officer’s guide (defendants’ son) had authority to give consent to enter his parents’ bedroom. (People v. Pleasant (2004) 123 Cal.App.4th 194, 197-198 [in conducting probation search, police could, without warrant or probable cause, search areas used exclusively by the probationer, areas within common authority of the probationer and others, and areas to which probationer normally had access]; People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1205 [third party consent must be by person with authority to give consent].)
Here, however, the officers saw contraband in plain view during a protective sweep, i.e., a quick visual inspection of places where a dangerous person may be hiding to protect the officers’ safety. (Maryland v. Buie (1990) 494 U.S. 325, 327 [108 L.Ed.2d 276] (Buie).) A protective sweep may be justified though an officer lacks a warrant or probable cause to believe that officer safety is threatened; a “reasonable suspicion” standard applies. (Buie, supra, 494 U.S. at p. 334 [108 L.Ed.2d 276]; Ledesma, supra, 106 Cal.App.4th at p. 863.) Under the reasonable suspicion standard, courts must evaluate the totality of circumstances on a case-by-case basis, allowing the officers on the scene to draw on their own experience and training to make inferences from and deductions about the cumulative information available to them. (United States v. Arvizu (2002) 534 U.S. 266, 273-274 [151 L.Ed.2d 740]; Ledesma, supra, 106 Cal.App.4th at p. 863.) Among the circumstances appropriately taken into account in evaluating a protective sweep are “the type and location of the police action contemplated following the sweep.” (Ledesma, supra, 106 Cal.App.4th at p. 864.) “There must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” (Buie, supra, 494 U.S. at p. 334.) A protective sweep is not a full search and “may extend only to a cursory inspection of those spaces where a person may be found. [Fn. omitted.] The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger....” (Id. at pp. 335-336.) Buie upheld a warrantless protective sweep, where police had arrest warrants for two men, arrested one of them inside his home, and found evidence in plain view during a sweep of adjoining spaces from which an attack on police could be launched. (Id. at p. 328.)
In our case, the opium and packaging materials were found in plain view during the protective sweep. Although the gun on the closet shelf was arguably out of reach of the petite Yer Yang and arguably outside the scope of a legitimate protective sweep, the opium in and of itself gave grounds to freeze the scene and obtain the search warrant, which inevitably would have disclosed both guns.
The protective sweep in our case was justified and reasonable. The officers were properly inside the residence to conduct a probation search. There were legitimate concerns for the officers’ safety because they were on the probationer/adversary’s turf; the probationer did not live alone; there were several people in the house; a teen ran past the police despite being ordered to stop, raising the possibility that she would alert others in the house to the officers’ presence; and the police had prior information about drug sales activity at the house, for which firearms are “tools of the trade.” (Ledesma, supra, 106 Cal.App.4th at p. 865.)
Citing testimony from the trial rather than the suppression hearing, Yer Yang argues the prior information received by police regarding drug sales was stale (a month or two old) and not shown to be reliable. However, Yer Yang relies on cases about probable cause to get a search warrant, and we have seen protective sweeps for officer safety are necessarily judged under a less stringent standard.
Defendants argue protective sweeps are allowed only when they are incident to an arrest, and the police in our case were not at the house to arrest anyone. Defendants quote from the first paragraph of Buie, supra, 494 U.S. at page 327: “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.”
However, protective sweeps are not limited to arrests. A protective sweep of a house incident to a probation search was upheld in Ledesma, supra, 106 Cal.App.4th 857, which said: “Here the officers were about to execute a valid probation search inside a house. [Fn. omitted.] Buie, supra, 494 U.S. 326, involved a protective sweep in the context of an arrest. Subsequent cases, however, have clarified that its holding is not limited to arrest situations. (U.S. v. Taylor (6th Cir. 2001) 248 F.3d 506, 513 [officer left behind to secure residence while search warrant is obtained may conduct protective sweep]; Drohan v. Vaughn (1st Cir. 1999) 176 F.3d 17, 22 [officers executing search warrant may conduct protective sweep]; U.S. v. Patrick (D.C. Cir. 1992) 959 F.2d 991, 996-997 [police may conduct protective sweep of bedroom after lessee has given consent to search other parts of apartment].) Furthermore, a respected treatise notes that when officers are rendering aid, they may conduct a protective sweep of the premises so long as the requirements of Buie are met. (3 LaFave, Search and Seizure (3d ed. 1996) § 6.6(a), pp. 401-402.) Thus, we conclude a security sweep may properly precede a probation search.” (Ledesma, supra, 106 Cal.App.4th at p. 864 [First Dist., Div. Five].) Although the issue is the subject of conflict in the federal courts (e.g., United States v. Freeman (10th Cir. 2007) 479 F.3d 743, 750), we agree with Ledesma that protective sweeps are not limited to arrest situations.
Yer Yang argues Ledesma was wrongly decided, because an arrest poses significantly greater danger to the police than a probation search. We disagree. Persons in other rooms of the house may not know why the police are in the house. Defendants’ assumption that everyone in the house would have known the police were there for a probation search is unsupported by the evidence, which shows only that a 14-year-old girl said she ran through the house because police were chasing her. In any event, police safety should not be dependent upon the officers’ correctly guessing what persons in the house might be thinking as to the reason for the police presence.
We reject Yer Yang’s argument that upholding the protective sweep in this case eviscerates the Fourth Amendment.
We conclude the suppression motion affords no basis for reversal of the judgment.
II. Evidence Referencing Informant
Yer Yang argues the trial court erred and violated her confrontation rights by admitting evidence that the police, before entering the house, had received information that drugs were being sold there. She argues that, if she “opened the door” to this evidence, then she received ineffective assistance of counsel. We shall conclude there is no basis for reversal.
A. Background
In front of the jury, Officer Ellis testified he and his fellow officers conducted a “lawful search” of defendants’ home on November 2, 2006.
In cross-examination by defense counsel, law enforcement officers testified they did not recall any visitors or phone calls to the house while they were there; did not find any police scanners, pagers, pay-owe sheets, customer lists, large amounts of cash, or other indicia of drug sales; did not interview neighbors to inquire about traffic in and out of the house. They did no surveillance of the house before that night. During the questioning about what investigation was not done, defense counsel asked Detective Reyes, “As a matter of fact, one of the things that you as an officer get, you usually get the telephone calls saying, hey, I think my neighbor down the street is dealing, there’s foot traffic all the time?” Reyes said yes. Counsel then asked if the detective or his team talked to neighbors, and he said no. On redirect, the prosecutor elicited that the witness was speaking only for his own team and had no knowledge concerning other officers.
Outside of the jury’s presence, the prosecutor asked to recall Officer Ellis to the witness stand to testify he had information about drug sales activity at the subject address before that night. The purpose for this request was that Yer Yang’s defense counsel had asked a law enforcement officer on the witness stand if he had conducted any investigation or talked to any neighbors about narcotics sales activity at the residence. That witness said no. However, that witness was not among the officers who conducted the initial sweep of the house but rather was called later to help with the search warrant. Officer Ellis, who was among the first to enter the residence, would testify he had information that narcotics sales took place at the house before he entered the house. The prosecutor said: “I am not seeking to enter any of the specific information because I’m not trying to use it to prove up that there was actual narcotics activity. I want to simply introduce it for the limited purpose that the officers had that information when they were there on November 2nd.”
Defendants objected on the grounds of hearsay and the Confrontation Clause, arguing the prosecutor was trying to admit the statement of a confidential informant, whom the defense had no opportunity to question, to prove the truth of the matter asserted, that there were drug sales at the house. Defendants argued that, if the prosecution wanted the evidence in, they must produce the informant so his/her reliability could be tested.
The prosecutor insisted she was not offering the testimony to prove drug sales activity, but to show “the reasonableness of the officer’s actions and to show what information they had,” and defendants had “opened the door.” The prosecutor said she would not oppose the court giving the jury a limiting instruction.
The trial court allowed the evidence, observing the defense had opened the door in questions designed to elicit an inference of shoddy police work.
When court reconvened, the judge addressed a question submitted by a juror, “Why were the police department in the Yang household in the first place?” The trial court reminded the jurors, “As you heard in the testimony, the officers were there for a lawful purpose. You’re not to speculate other than what the evidence is.”
Officer Ellis was recalled to the stand, as follows:
“Q [by prosecutor] Officer Ellis, prior to entering the residence or going to the residence on November 2nd, 2006, did you have information that narcotic sales was occurring at that residence?
“A Yes, I did.
“[Prosecutor] Nothing further.
“THE COURT: This evidence is being received for a limited purpose, for you to evaluate the information the officer had prior to the search. It’s not being offered to prove that narcotics activity was actually occurring.”
On cross-examination by the defense, Officer Ellis said the information came from one person, about a month or two before the incident, and he did not do any investigation in the interim -- no interview of neighbors asking about foot traffic, no surveillance. The only things he did were to find out who lived at the house and to determine they had no criminal records for drug sales. On re-direct examination, Officer Ellis recalled he also received prior information regarding narcotics sales at the house “from another source.” There was no further questioning of the witness.
In closing and rebuttal arguments to the jury, the prosecutor made no reference to this evidence.
Both defense attorneys argued to the jury that there was no evidence of narcotics sales; there was only evidence of possession; and the police simply assumed sales activity, without bothering to investigate. Ge Yang’s attorney referred to the limiting instruction and Officer Ellis’s testimony that the police had information about drug sales activity, and said no one had testified about buying or observing a drug sale involving defendants.
The jury instructions included a reiteration of the admonishment that evidence admitted at trial for a limited purpose could be considered “only for that purpose and for no other.”
B. Analysis
In assessing defendants’ claims of evidentiary error regarding the testimony, we apply the deferential abuse of discretion standard. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
Even assuming the sources gave “testimonial” statements to the police, Yer Yang acknowledges the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 [158 L.Ed.2d 177].)
Here, the evidence was not used to prove any kind of narcotics activity, and the jury was instructed, “This evidence is being received for a limited purpose, for you to evaluate the information the officer had prior to the search. It’s not being offered to prove that narcotics activity was actually occurring.” We presume the jury followed the limiting instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Panah (2005) 35 Cal.4th 395, 492.)
Yer Yang argues the limiting instruction was inadequate because it told the jurors to evaluate the information the officer had prior to the search, and it did not tell them for what purpose they were to evaluate the information. Yer Yang also argues the limiting instruction should have said the evidence was not offered to prove narcotics “sales” activity rather than mere narcotics activity, because defendants conceded narcotics activity and the only issue at trial was “sales” activity. Besides appearing meritless on their face, these contentions are forfeited because neither defendant asked for further clarifying instruction. (People v. Riggs (2008) 44 Cal.4th 248, 309.)
Yer Yang suggests the instruction as given was erroneous because there was no legitimate reason for the jury to evaluate the information the officer had prior to the search. However, the defense made police bias and credibility relevant with cross-examination insinuating arbitrary police action and shoddy investigation. Although the defense is certainly entitled to exploit deficiencies in the prosecution’s case and the absence of evidence the prosecution might otherwise have been expected to offer, the implication here bordered on an implicit accusation of police misconduct. In closing argument, Yer Yang’s counsel even claimed law enforcement “refused to interview neighbors” and “refused” to “fingerprint the baggies and gun” and “refused” to call phone numbers found in Yer Yang’s fanny pack. Yer Yang observes that the closing argument focused on the police investigation from the time they entered the house until the time of trial. However, the cross-examination was not so limited. Though not expressly cited by the trial court, Evidence Code section 780, subdivision (f), provides that, except as otherwise provided by statute, the jury in determining credibility of a witness may consider the “existence or nonexistence of a bias, interest, or other motive.” The evidence was properly admitted to rebut the inference of police bias, interest, or other motive.
Yer Yang cites federal Court of Appeals cases for the proposition that admission of hearsay evidence to explain why police acted as they did would lead to abuse, because it would allow inadmissible evidence in to show why the police investigated the defendant. (E.g., United States v. Silva (7th Cir. 2004) 380 F.3d 1018, 1020.) Yer Yang cites a treatise (2 McCormick, Evidence (5th ed. 1999) Hearsay, § 249, p. 103), that the jury should only hear that the police acted “upon information received” rather than hearing otherwise inadmissible evidence to explain the police presence at the scene. However, as indicated, the defense opened the door, and the evidence was admissible to rebut the defense’s implication of arbitrary police action and shoddy investigation. Indeed, the defense’s cited authority, United States v. Silva, supra, 380 F.3d 1018, said in dictum, “There are no doubt times when the testimony regarding a tip from an informant is relevant. If a jury would not otherwise understand why an investigation targeted a particular defendant, the testimony could dispel an accusation that the officers were officious intermeddlers staking out [the defendant] for nefarious purposes.” (Id. at p. 1020.)
Here, according to the testimony at the suppression hearing, the police went to defendants’ house that night because they had information that a person on searchable probation lived there, and there might be drug dealing there. Thus, it was proper to admit evidence that the police had prior information about possible drug dealing, in order to dispel the defense’s insinuation that the police were officious intermeddlers who had staked out the defendants for nefarious purposes.
It was already apparent the jurors were wondering about the police presence, because they asked about it in a question they submitted to the judge. The jury’s question suggests that defense counsel’s insinuations of police misconduct had hit their mark.
Yer Yang argues the jury did not need to be informed about what the officers knew before entering the house, because the trial court responded to the juror’s question with the reminder, “As you heard in the testimony, the officers were there for a lawful purpose. You’re not to speculate other than what the evidence is [sic].” This instruction did not render the evidence inadmissible. The evidence and limiting instruction complemented the court’s instruction to the jurors that the police presence was lawful and they were not to speculate on the matter. Contrary to Yer Yang’s argument, the evidence and limiting instruction did not create a contradiction which presumed the jurors could not be trusted to obey the instruction not to speculate, yet could be trusted to obey the limiting instruction.
Yer Yang argues that if her attorney “opened the door” to the evidence, then she received ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant bears the burden of showing that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsel’s error, it is reasonably probable that defendant would have obtained a more favorable verdict. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
Here, the trial court asked Yer Yang’s counsel to respond to the prosecutor’s assertion that he opened the door. Defense counsel ultimately said he was anticipating the way he would approach the police deficiencies in closing argument. In other words, it was a matter of trial tactics. (People v. Marghzar (1987) 192 Cal.App.3d 1129, 1136, fn. 1 [defendant had adequate assistance of counsel where defense counsel’s line of questioning -- alleging discrepancies and inaccuracies in police reports of uncharged acts -- had a rational tactical purpose].) We give great deference to counsel’s tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 661.) We cannot conclude that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Accordingly, we reject Yer Yang’s claim of ineffective assistance of counsel.
Even assuming for the sake of argument that the evidence should not have been admitted, any error was harmless. Yer Yang urges the prejudice standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], whether error is harmless beyond a reasonable doubt, on the basis that the federal Confrontation Clause is implicated. However, we have seen the federal clause is not implicated. Therefore, we apply the standard applicable to claims of state law error, i.e., whether it is reasonably probable the jury would have reached a more favorable result in the absence of the error. (People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Watson (1956) 46 Cal.2d 818, 836.)
It is not reasonably probable that defendants would have obtained a more favorable verdict had the evidence been omitted. The evidence adduced by the prosecution -- that the police had information about drug activity before entering the house -- was fleeting and was followed by the limiting instruction: “This evidence is being received for a limited purpose for you to evaluate the information the officer had prior to the search. It’s not being offered to prove that narcotics activity was actually occurring.” The jury is presumed to have followed this instruction. (People v. Lindberg, supra, 45 Cal.4th 1, 26; People v. Cox (2003) 30 Cal.4th 916, 953.)
Moreover, although the quantities of drugs may have been consistent with a full month’s supply for one heavy user, the handling of the drugs -- cutting, weighing, and packaging in individual tiny bags -- pointed to sales activity, as did the proximity of the guns to the drugs and the presence of a surveillance camera. Yer Yang’s story that she underwent this handling process (which the expert described as painstaking) in order to monitor her husband’s use was weak. She could have kept the opium in a single block and pinched or cut off a bit or a few bits as needed. The absence of items such as pay/owe sheets is inconsequential, given the close Hmong community in which defendants moved, where they could be expected to interact mainly with people they knew. The absence of large amounts of cash or expensive items is also without consequence. That no one knocked on the door or phoned while the police were at the house is unremarkable, since friends of the occupants were outside the house and saw the uniformed police arrive and presumably spread the word.
Yer Yang considers it significant that the jury requested, among other things, a readback of Officer Ellis’s testimony when he was recalled to the witness stand. We disagree that the jury’s request demonstrates a reasonable probability of a more favorable verdict had the evidence been excluded.
We see no ground for reversal with respect to the admission of evidence that the police had been informed of drug activity before they entered the house.
III. Expert Witness
Defendants contend the trial court prejudicially erred by allowing the prosecution expert, Detective Vang, to opine that the drugs were for sale rather than personal use, because Detective Vang did not qualify as an expert and relied on hearsay as a basis for his opinion. We shall conclude defendants fail to show grounds for reversal.
A. Background
The prosecution presented Police Detective Chou Vang as an expert on the sale of opium and methamphetamine. Defense counsel stipulated Vang could testify as an expert regarding sale and possession of methamphetamine but objected to his testifying as an expert regarding opium. On voir dire, Detective Vang testified that in his 12 years in law enforcement, he had received training on narcotics investigations, including personal use versus sales, and how drugs are packaged and sold. He participated in as many as 150 drug arrests and made at least 20 undercover purchases of narcotics. He had not had many cases involving opium, which is rare as a street drug. He had been involved in making three arrests involving opium, though none was for sales activity. He had never spoken with any opium dealers but had spoken with three or four opium users about matters such as how it is packaged for sale. He had never qualified as an expert regarding opium. Vang considered himself an expert because opium is common in his homeland -- Laos (which he left at age nine) -- and he was familiar with the look and smell of opium, having known people who used it.
The trial judge stated, “I was not prepared to find him as an expert with regard to opium until the question when he dealt with his experiences in southeast Asia[], which then translated into his law enforcement, which convinces me he has that special knowledge and experience that puts him as an expert. [¶] I just want to make the record clear on that because it was evident to me once he testified to that [on voir dire], he probably has more knowledge than a lay person.” The court allowed Vang to testify as an expert regarding opium.
Detective Vang testified sales of various types of drugs share some common characteristics regarding, e.g., the quantity of narcotics, type of packaging, and a scale. Vang opined defendant was selling the opium found in his home.
Vang’s opinion was based on “the scale, you’ve got what appears to be scissors, some already small baggie that’s packaged already and you’ve got some individually-cut pieces of suspected opium. Based on that alone, it is my opinion that it’s being possessed for the purpose of sale of opium.” Elaborating, Vang referred to the individually-cut pieces of opium that could be sold as individual units of a particular quantity, and bags with bigger quantities and additional packaging and scissors. In selling drugs, dealers typically weigh the individual units to make sure they are of the correct weight for a particular amount of sales unit. Different size baggies are used to package different sales quantities. Two types of baggies were found in defendants’ bedroom.
Vang said a long-time user would already know how much opium it will take to get him high and would not need to cut and weigh it; he would just pinch off the amount he wanted. The wife of a long-time user would also be able to pinch off doses without undergoing the painstaking process of cutting and weighing the opium.
The amount of opium found in defendants’ home (43 grams) could provide about 120 “hits” or uses and could sell for $2,400.
In closing and rebuttal arguments to the jury, the prosecutor did rely heavily on Officer Vang’s expert opinion that the opium was possessed for the purpose of selling it.
B. Analysis
Ge Yang argues Detective Vang (1) was not qualified to testify as an expert regarding opium, and (2) violated defendant’s confrontation rights by testifying in front of the jury that the basis for his expert opinion was that he had spoken to three to four users of opium. We shall conclude there is no basis for reversal.
A person is qualified to testify as an expert if he has special knowledge or experience sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code, § 720.) An expert’s opinion testimony must be “(a) Related to a subject that is sufficiently beyond the common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter [including his special knowledge and experience] perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which the testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
“The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion [is] shown.... This court may find error only if the witness ‘clearly lacks qualification as an expert.’ [Citations.]” (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.)
We see no abuse of discretion. Detective Vang disclosed sufficient knowledge, training, and experience to form an opinion useful to the jury. Ge Yang does not show that the illegal sale of opium is radically different from the illegal sale of other narcotics. Detective Vang’s opinion concerning sales activity with respect to opium was similar to his opinion regarding sale of methamphetamine (for which he was a conceded expert) -- i.e., the quantity of drugs together with the scale, packaging materials, firearms, and surveillance camera.
A different detective testified there is a difference between methamphetamine and opium, but the difference was not explored because that witness was not offering any testimony about opium.
There is no error regarding the qualification of Detective Vang as an expert.
We now turn to Ge Yang’s claim that his confrontation rights were violated by the expert’s alluding to non-testifying witnesses. Yer Yang’s attorney asked Detective Vang on cross-examination whether he had ever talked to anybody who sold opium. He said no, but he had talked to opium users. No objection was made, and counsel asked how many persons. The witness said three or four. He talked to them about habits, about how much they can purchase, and how it comes packaged.
Since no objection was made at trial, Ge Yang cannot challenge the evidence on appeal. (Evid. Code, § 353, subd. (a) [judgment shall not be reversed based on erroneous admission of evidence unless a timely and specific objection was made at trial].)
We conclude defendants fail to show any evidentiary error warranting reversal of the judgment.
IV. Claim of Prosecutorial Misconduct
Defendants contend they were denied due process and a fair trial under the Fifth and Fourteenth Amendments of the United States Constitution when the prosecutor in closing argument, over defense objection, committed misconduct by shifting the burden of proof to defendants to prove their innocence and improperly commenting on the fact that the defense did not call witnesses to corroborate their defense. We disagree.
A. Background
During cross-examination by Ge’s attorney, Officer Ellis testified that pipes for smoking were found in Ge’s garage but were not seized because it was not clear they had been used to smoke illegal drugs. In direct examination, Detective Vang described the type of pipe typically used to smoke opium but indicated other types could also be used for that purpose.
In closing argument to the jury, the prosecutor said that, while the officers found pipes in Ge’s garage, there was no evidence that Ge Yang had an opium pipe like the one described by the detective.
Yer Yang’s counsel disagreed in closing argument, recalling “there was testimony that there was an opium pipe there.” Ge’s counsel in closing argument found it “real interesting” that “there w[ere] pipes and they weren’t collected. I think that’s interesting because pipes kind of indicate personal use. And the People aren’t prosecuting a personal use case here; they’re prosecuting a sales case. So it’s kind of interesting that they didn’t collect the pipes. Because it really wouldn’t strengthen their case for personal use [sic]; it would actually kind of take away from it a little bit. But, the officer, I don’t know if he testified these were brand-new pipes, clean, never been used. I don’t think he said that. But he sure didn’t collect them. Because it helps us if he would have collected them.”
In rebuttal argument, the prosecutor agreed it was her burden to prove each element beyond a reasonable doubt and defendant was not required to put on any case, but “[t]hey [defendants] decided to put on a case. And so you have to evaluate the strength of the case that they put on. [¶] It was brought up that there were pipes in the house that the police didn’t book and that’s because it would have helped our case [sic]. [¶] Well, if the defense was going to bring witnesses in, wouldn’t it be a logical witness to bring those pipes [sic] to say this is evidence that the officers overlooked; this is evidence of pipes that are being used for smoking opium; they are 100 percent illegal pipes.”
The trial court overruled defense objections.
The prosecutor continued: “Logical witnesses. The defense also argued about there was speculation that there w[ere] other people in the house who made money. [¶] The only testimony we had is from Xue. Xue testified, and we can go back and look in the record, that she makes $25,000 a year. There’s no other evidence of who else works in the household. Vue came, but he said at that time he was not working at all. So wouldn’t the logical person be to call [sic] the witness, a logical witness, someone -- [¶]... [¶]... who is in the house....”
The trial court overruled a defense objection, and the prosecutor continued that it would be logical to call as a witness any person who was contributing money to the household.
B. Analysis
“A prosecutor’s misconduct violates the Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally unfair’ violates California law ‘only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 242.)
Defendants fail to show any deceptive or reprehensible methods in this case.
Contrary to the defense contention, the prosecutor did not improperly shift the burden of proof to defendants. The prosecutor did nothing more than make fair response to defendants’ arguments and comment on defendants’ failure to introduce material evidence or call logical witnesses as part of the defense case they presented. (People v. Wash (1993) 6 Cal.4th 215, 262-263 [prosecutor may comment on defendant’s failure to introduce material evidence or to call logical witnesses].) “[A] prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story.” (People v. Varona (1983) 143 Cal.App.3d 566, 570.)
Since we conclude there was no prosecutorial misconduct, we need not reach the question of prejudice. We nevertheless observe that we see no possible prejudice, under any standard, based on the pipe issue, because the fact that Ge Yang used pipes to smoke opium is not inconsistent with his also selling opium. This is a matter of common sense, plus Detective Vang testified a drug dealer can also be drug user.
There was no prosecutorial misconduct.
V. Abstract of Judgment
Ge Yang contends, and the Attorney General agrees, that the abstract of judgment should be corrected to conform with the trial court’s oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181 [if abstract of judgment fails to reflect the judgment orally pronounced by the court, the error is clerical and may be corrected at any time].)
The reporter’s transcript shows the trial court imposed a consecutive sentence for Ge Yang on Count Five, but the abstract of judgment says it is concurrent. We shall order the trial court to correct the abstract of judgment.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment reflecting Ge Yang’s consecutive sentence on Count Five and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.