Opinion
A149778
08-02-2018
THE PEOPLE, Plaintiff and Respondent, v. PATRICIA ANN AMBROSIO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR311989)
Patricia Ann Ambrosio appeals from a conviction of possession of methamphetamine for sale. She contends she received ineffective assistance of counsel due to her attorney's failure to object to improper and prejudicial expert testimony and argument by the prosecutor. She additionally contends that a condition of probation is unconstitutionally vague. We affirm.
BACKGROUND
Police Officer Patrick High began an investigation into possible drug trafficking by appellant in July 2015, as part of which he conducted surveillance of her home on at least 10 occasions between July and December 2015. On the majority of these occasions, he observed "short-term traffic," meaning people arriving in vehicles and staying only "a matter of minutes," which he testified is consistent with drug trafficking.
On one occasion when appellant arrived home after Officer High had begun surveillance, over the course of about 30 to 45 minutes High observed a woman who had been waiting on the porch leave a minute or so after appellant's arrival; a man who had been in a vehicle parked in front of the house walk into the house and depart after a "few minutes"; two other vehicles arrive and an occupant from each go to the front door and then leave after a few minutes; appellant leave the house, walk into the park across the street and meet a person with whom she appeared to exchange something before going separate ways after a few seconds; then appellant lean into a vehicle that pulled up in front of her house, appearing to speak with the occupants, and after a few seconds return to her house. During the 20 to 30 minutes of surveillance before appellant's arrival, High had not seen anyone enter or exit the house, but had seen people park outside, go to the house, then get back in their cars and leave.
High testified that he saw appellant reach toward the man, who reached back toward her; it looked like they exchanged something but he "couldn't see anything specifically." They did not appear to say "many, if any, words."
On one occasion High followed appellant to a 7-Eleven store, where she pulled into the parking lot, met with someone and left without getting out of the car or going into the store. She then went to another business where two men came to the driver's side window of her car, one after the other, and after speaking with appellant, walked back toward the business as she drove away.
On December 18, 2015, High followed when appellant left her house with her husband, Congdon, as passenger in the car. While other detectives followed the car, High went to a parking lot from which he could observe an address to which he believed appellant would go. High saw the car arrive at that address with appellant driving but Congdon no longer present. Appellant contacted someone at the location, then left after five or so minutes and drove to a Walgreens where she picked up Congdon. With Congdon driving and appellant as passenger, they drove to the parking lot of the Dead Fish Café and High observed Congdon get out of the car and meet a man on a motorcycle who was later identified as his brother. Other officers who had been contacted for assistance arrived and both appellant and Congdon were detained.
Asked by an officer whether she had anything on her, appellant said, "yes, I do," and retrieved from her underwear a "Baggie" about the size of the officer's fist containing a white substance that was subsequently determined to weigh 55.55 grams and tested positive for methamphetamine. In the car, officers found on the passenger side floorboard a purse containing a driver's license in appellant's name and a red drinking straw about two inches long with a white crystalline powdery coating on the inside consistent with methamphetamine residue; in the glove compartment, an operational black digital scale with a "white crystal substance" "all over" the weight plate that tested positive for presence of amphetamine in a field test; and, in the trunk, a paint can containing 20 unused 2-inch by 3-inch "dime bags" two plastic shot glasses lined with a white crystal residue that also tested positive for amphetamine, methamphetamine pipe with burnt-on residue that tested positive for amphetamine, a metal "grinder" with a green substance inside, and two dark green "rocks" that appeared to be concentrated cannabis in separate dime bags.
Appellant was charged with one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378), with an alleged prior conviction for possession with intent to manufacture PCP (Health & Saf. Code, §§ 11370.2, subd. (c), 11383). After a jury trial, she was found guilty of the charged offense, and the trial court found the prior conviction allegation true. The court imposed a split sentence of five years, the middle term of two years on the possession for sale and three years on the enhancement, with 18 months to be served in county jail and three and a half years on mandatory supervision.
Appellant filed a timely notice of appeal on October 19, 2016.
DISCUSSION
I.
Appellant contends she was denied effective assistance of counsel by her attorney's failure to object to an expert witness's improper expression of his opinion as to her guilt and to statements by the prosecutor in closing argument that were not supported by the evidence.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [(Strickland)]; In re Wilson (1992) 3 Cal.4th 945, 950.) A 'reasonable probability' is one that is enough to undermine confidence in the outcome. (Strickland, . . . at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.)" (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
During direct examination of Officer High, who testified as an expert on sale of methamphetamine, the prosecutor asked, "Now, . . . I'm going to give you a hypothesis, an individual has approximately 55 grams of methamphetamine; she is located inside of a car, which is hers; inside of the glove compartment is a digital scale with methamphetamine residue; there are in a trunk inside of a container two shot glasses or plastic glasses with amphetamine residue; there is also approximately 19 or 20 bags of clean packaging that are . . . [¶] . . . [¶] approximately two-by-two inches, do you have an opinion as to whether the methamphetamine was possessed for sale or not for sale?" Defense counsel objected to the reference to "clean packaging" as lacking foundation (and was overruled) but did not otherwise object.
High responded, "I do. [¶] My opinion is that methamphetamine was possessed for purposes of resale."
Asked why he so believed, High testified, "I [had] done approximately [a] six-month investigation. I [saw] numerous short-stay traffic from the defendant's home. I had followed her to locations where she had met up with other people for brief periods of time and conducted no business at the locations that she been to. For instance, going to a gas station, not getting gas or going inside. The quantity itself is significant quanti[t]y for one person to possess. The presence of the digital scale is also indicative of somebody who sells narcotics versus a simple user."
Hypothetical questions posed to expert witnesses must be " 'rooted in facts shown by the evidence . . . .' " (People v. Vang (2011) 52 Cal.4th 1038, 1045 (Vang), quoting People v. Gardeley (1996) 14 Cal.4th 605, 618), and expert testimony is permitted even if it embraces the ultimate issue to be decided. (Vang, at p. 1048, Evid. Code, § 805.) Here, the initial question put to the officer was framed as a hypothetical and answered as such, but the officer's response when asked to elaborate directly addressed his investigation of appellant, not a hypothetical defendant in appellant's circumstances. Appellant argues that High improperly stated an opinion on her guilt, emphasizing that the only debatable issue at trial was whether she possessed the methamphetamine for sale or for personal use. " 'A witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] "Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." ' " (Vang, at p. 1048, quoting People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
We need not determine whether High's testimony crossed the line or, if so, defense counsel was ineffective for failing to object to it. Regardless, the evidence that appellant possessed the methamphetamine for sale was so overwhelming that even if counsel should have objected, there is no reasonable probability the outcome of the trial would have been different. " '[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (People v. Carrasco (2014) 59 Cal.4th 924, 982, quoting Strickland, supra, 466 U.S. at p. 697.)
Appellant argues that the evidence of possession for sale was "much weaker" than of possession for personal use. She points out that High never saw an actual drug sale during his six-month surveillance; acknowledged that text messages are a common means of communication between drug dealers and their buyers but examination of the phones found when appellant was arrested did not reveal any texts, emails or other communications from appellant to buyers about selling methamphetamine; and acknowledged that the people he saw go to appellant's car in a business parking lot could have been her friends, and that the straw found in appellant's purse indicated personal use. High also acknowledged that appellant's husband and adult daughter also lived at her house, that he did not know if people he observed at the house were friends of the husband or daughter, and that people he saw leave after short visits to the house were not stopped for investigation. Appellant urges that the evidence left open the possibility that she was simply a heavy user, along with other members of her household, or that her husband was selling the drugs.
None of these points undermines the force of the evidence. Appellant was found in possession of 55 grams—approximately two ounces—of methamphetamine, an amount High testified is not consistent with someone who simply uses because it is expensive and, since the large quantity is associated with sales, a user would not want to risk being found with a larger quantity and charged with the higher offense of possession for sale. High testified that in December 2014, an ounce of methamphetamine would have cost about $600 to $800, and a typical user would use between a tenth and a quarter of a gram at a time, possibly a little more if they have "extremely high tolerance or decades of prolong[ed] use." Addressing the items found in appellant's car, he testified that scales are generally used by dealers to break a larger quantity into smaller amounts for individual sales to customers while users typically would not "carry around" a scale because they would not want to be mistaken for a dealer, would generally purchase prepackaged amounts of methamphetamine, and would not want to bring a scale to weigh purchases for fear of disrespecting the dealer and potentially inciting violence, and because they would not want to be in possession of the narcotics in public longer than necessary for fear of contact with law enforcement. Shot glasses would be used as a receptacle to prevent methamphetamine from blowing off the scale in a breeze or getting knocked off while being weighed, and make it easier to place in packaging, and clean packaging—the dime bags—would be used to transfer smaller amounts to another person after breaking down a larger amount. High testified that it is "very common" for methamphetamine users to also be sellers because the drug is "extremely addictive" and, in his opinion, it is "difficult for people who are heavily addicted to narcotics to be able to maintain employment and be able to afford their drug habit. So often times a person may buy in a greater amount and sell a good portion of that, leaving some for themselves so they can continue to cycle their own addiction and be able to afford when they need to maintain their level."
Furthermore, appellant's attempts to offer innocuous explanations notwithstanding, High's surveillance of appellant and her home was highly incriminating. A visitor or two stopping by briefly might be a friend dropping by to drop something off or pick something up, or seeking to visit an occupant who was not at home, but the series of such brief visitors High described watching over the course of 30 to 45 minutes, after watching other would-be visitors come to the house and leave again in the 20 to 30 minutes before appellant arrived at home, paints an entirely different picture. Combined with the amount of methamphetamine appellant had in her possession when detained and the evidence found in her car, the conclusion that she was selling methamphetamine is all but inescapable. There is no reasonable probability the jury would have reached a different conclusion if High had not expressed his opinion that appellant possessed the methamphetamine for sale.
High explained that people leaving appellant's house were not stopped for investigation because doing this would have revealed the surveillance, hindering High's investigation and putting him in a dangerous position, and testified that the fact that the no texts, pay/owe lists or large amounts of money were found in appellant's possession did not alter his opinion that the methamphetamine was possessed for sale because none of these would be uncommon in the circumstances of this case.
Appellant also bases her claim of ineffective assistance of counsel on her attorney's failure to object when the prosecutor stated in closing argument that methamphetamine users become sellers in order to feed their addiction, and "that is what happened" in the present case. She urges that this argument suggested to the jury that the prosecutor had evidence she became a seller in this way, which was prejudicial because it went to the heart of the case—the question whether she possessed the methamphetamine for personal use or for sale. Appellant points to High's testimony that he believed only one of the approximately 10 narcotics dealers he spoke with was a woman, arguing that the expert testimony contradicts the prosecutor's theory that appellant's admitted use of methamphetamine supported an inference that she became a dealer.
It is misconduct for a prosecutor, in closing argument, to refer to facts not in evidence. (People v. Linton (2013) 56 Cal.4th 1146, 1207.) But, again, given the evidence discussed above, there is no reasonable probability the jury would have reached a different conclusion if the prosecutor had not suggested that appellant became a methamphetamine dealer in order to support her personal use of the drug. Appellant suggests that the prosecutor's theory that she became a dealer to support her personal use was contradicted by High's testimony that he believed only one of the approximately 10narcotics dealers he spoke with was a woman. But the statistical unlikelihood of a woman being a dealer suggested by High's testimony does not alter the abundant evidence that appellant was selling methamphetamine. Appellant's efforts to portray the evidence that she was simply a methamphetamine user as stronger than the evidence she was selling the drug miss the point. There was no question she used methamphetamine. The question was whether the evidence showed beyond a reasonable doubt that she also intended to sell the methamphetamine in her possession. The evidence that she did was overwhelming. Indeed, given the amount of methamphetamine in appellant's possession, the other evidence of sales found in her car and the activity High observed over the course of his surveillance, it is difficult to imagine a reasonable doubt as to her intent to sell.
II.
Among other conditions of probation, the trial court prohibited appellant from using "mood altering substances like spice or salvia." Appellant contends the phrase "mood altering substances" is unconstitutionally vague because it is not defined or self-evident and fails to give her or law enforcement officers notice of what substances are encompassed by the condition.
"To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500.) " ' "[N]o more than a reasonable degree of certainty" ' [citation]" is required (id. at p. 503), and "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 382 (Olguin).)
Appellant relies upon two cases that found the phrase " 'mood altering substance' " unconstitutionally vague because it could include many substances that " 'are not causal factors of recidivist behavior.' " (United States v. Kappes (7th Cir. 2015) 782 F.3d 828, 853 [(Kappes)], quoting United States v. Siegel (7th Cir. 2014) 753 F.3d 705, 713 [(Siegel)].) Siegel noted that " 'mood altering substances' . . . could include coffee, cigarettes, sugar, and chocolate, among many others," and that the government's lawyer suggested "a much better definition, which would exclude coffee, cigarettes, sugar, and chocolate: 'psychoactive substances that impair physical or mental functioning,' including street, synthetic, or designer drugs, such as 'bath salts' (a synthetic amphetamine-like product) and 'potpourri' (also called 'spice,' a synthetic form of marijuana) some versions of which, when Siegel was sentenced, had only recently been designated controlled substances." (Siegel, at p. 713.) Kappes stated that "[a] better definition for 'mood altering substances,' although not the only one, would be 'psychoactive substances that impair physical or mental functioning, including street, synthetic, or designer drugs,' " or "simply prohibiting 'illegal mood-altering substances.' [Citation.]"
Here, the court ordered as follows: "She is going to totally abstain from the use of alcohol, illegal drugs, no medical marijuana, no mood altering substances like spice or salvia because she will be engaged in treatment. [¶] She is going to be screened for residential treatment upon completion of her prison sentence as well as out patient treatment. . . . [¶] . . . [¶] I am including all substances because most addicts like Ambrosio are polysubstance users and I think her probation report reflects that is the case as well."
However vague the term "mood altering substances" might be in the abstract, the court here placed it in context by providing specific examples—spice and salvia—and explaining that the condition was tied to appellant's required drug abuse treatment and testing. Spice is a synthetic cannabinoid, one of a number of unregulated mind-altering substances "intended to produce the same effects as illegal drugs"; salvia divinorum is a hallucinogenic plant (<https://www.drugabuse.gov/publications/drugfacts>). These examples make clear that the phrase "mood altering substances" encompassed substances that an addict would use to achieve the effects of illegal drugs. (See United States v. Sims (9th Cir. 2017) 849 F.3d 1259, 1260 [examples given to clarify condition restricting "synthetic cannabinoid[s]" (synthetic marijuana, K2 and spice) ensured condition would be read "to encompass only substances similar in character to the examples given"].) No "reasonable, objective reader" (Olguin, supra, 45 Cal.4th at p. 382) would interpret the condition as prohibiting appellant from "using" substances such as sugar, chocolate or caffeine.
Appellant also relies upon United States v. Aquino (9th Cir. 2015) 794 F.3d 1033, 1038, which, in finding unconstitutionally vague a condition prohibiting use of substances the defendant " 'believe[s] intended to mimic the effect[s] of any controlled substance,' " likened the condition to the "mood altering substances" one rejected in Siegel, supra, 753 F.3d at page 713, because, taken literally, the condition could "cover innocuous substances such as chocolate and coffee, both of which (a) can be highly addictive, (b) fuel a significant percentage of American adults daily, and (c) can serve as an 'upper.' " Nothing in the Aquino court's analysis alters our conclusion that the condition in the present case was sufficiently clear. --------
Appellant additionally urges that the probation condition should include an exception for prescription medication. The court in United States v. Aquino, supra, 794 F.3d at page 1038, noted that a probation condition such as one suggested in Kappes, supra, 782 F.3d at page 853, and Siegel, supra, 753 F.3d at page 713, as an alternative to proscribing "mood altering substances" (referring instead to " ' "psychoactive substances that impair physical or mental functioning, including street, synthetic, or designer drugs" ' ") would have to include a "prescription exception" because "medicine for both psychiatric and physical conditions can have the proscribed effects."
The probation report indicates that appellant was taking prescription medications, before her arrest and while in custody, for conditions including depression and post-traumatic stress disorder, and her attorney told the court that she had long used pain medication, as well as illegal substances to deal with pain resulting from a number of past surgeries. The court did not indicate any intention to limit such use of prescription medication; to the contrary, by specifically including "medical marijuana" in the condition, the court implicitly indicated that other prescribed medications were not included. The examples the court provided to illustrate its intended meaning of mood altering substances further demonstrate that the condition does not prohibit appellant from using medication pursuant to a valid physician's prescription. No reasonable, objective interpretation of the condition would include such prescribed medication.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.