Opinion
F072316
02-06-2018
THE PEOPLE, Plaintiff and Respondent, v. RAUL GONZALEZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Carey, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F13910332)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Carey, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Raul Gonzalez appeals from his conviction for possession of methamphetamine for sale. He alleges the trial court erred in failing sua sponte to give an accomplice instruction and, further, erred in admitting text messages sent to him by people seeking to buy drugs. He also raises a claim of cumulative error. We conclude the trial court did not err in these respects, and, even assuming it did, the errors were harmless.
Gonzalez filed a supplemental brief after passage of Senate Bill 180, which amended Health and Safety Code section 11370.2 to abolish sentence enhancements predicated on prior convictions for various drug offenses. (Stats. 2017, ch. 677, § 1.) Gonzalez argues the amendment applies retroactively to his case, requiring us to strike the enhancement imposed by the trial court pursuant to former Health and Safety Code section 11370.2. The People concede the point, and we agree with the parties. Accordingly, we will strike the sentence enhancement imposed under former Health and Safety Code section 11370.2, subdivision (c). In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
Gonzalez was charged, by an amended information (information), with one count of possession of methamphetamine for sale in violation of Health and Safety Code section 11378. The information also alleged that Gonzalez had a prior drug conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c), a prior serious or violent felony conviction for purposes of Penal Code section 667, subdivisions (b)-(i), and had served four prior prison terms within the meaning of section 667.5, subdivision (b).
Subsequent statutory references are to the Penal Code unless otherwise specified.
A jury convicted Gonzalez as charged. In a bifurcated trial, the jury found true the allegations that Gonzalez had suffered a prior conviction under Health and Safety Code section 11378 (see former Health and Safety Code section 11370.2, subd. (c)); a prior strike conviction for purposes of sections 667, subds. (b)-(i) and 1170.12, subds. (a)-(d); and had served four prior prison terms within the meaning of section 667.5, subd. (b).
Gonzalez was sentenced to 10 years in prison: six years on the drug possession count with the strike enhancement (i.e., the upper term, doubled); a consecutive one-year term for a prior prison term enhancement (the remaining prior prison term enhancements were dismissed); and a consecutive three-year term for the prior drug conviction enhancement.
On June 30, 2013, at 4:30 p.m., Selma Police Officer Mark Clifton was on routine patrol in a Walmart parking lot when he observed a Saturn parked in a handicapped parking space, facing south. An "older model," silver-gray Dodge Neon was parked in the space directly east of the Saturn. Two people were sitting in the Saturn, one in the driver's seat and the other in the passenger seat. The man in the passenger seat was later identified as Gonzalez. Clifton parked "directly behind" the cars—blocking them—so as to ascertain whether the Saturn had a handicapped placard (it evidently did not have one). As Clifton pulled up, he "observe[d] the passenger [i.e., Gonzalez] get out of the - the Saturn and walk around and get in the driver's seat of the Dodge," and close the door. Clifton believed "[Gonzalez] was looking at [Clifton's] patrol car in his rear view mirror." Approximately 30-45 seconds later, as Clifton got out of his patrol car, Gonzalez got out of the Neon, walked back over to the Saturn, and began talking to the Saturn's driver. Clifton "finally interrupted their conversation," stating: "Excuse me, I need to talk to you guys about why you're parked in the handicapped stall." Clifton explained his actual rationale for accosting them: "I thought we either had a possible stolen vehicle ... or a narcotics transaction because when I was working for the narcotics team there were several transactions that we actually did in Walmart parking lots."
Gonzalez and the driver of the Saturn engaged with Clifton. Gonzalez told Clifton that the Neon was his car. Both Gonzalez and the driver of the Saturn "consented to a search of their vehicles." Clifton requested assistance and "[p]robably two minutes later," Officer Feller arrived to assist him. The officers "did a search of the Saturn first and ran a check on the driver. They "deemed that there was nothing inside [the Saturn], so [the driver] was released from the scene." A records check on Gonzalez revealed that he was "wanted on" a warrant for parole violations. Clifton "took [Gonzalez] into custody" and "transported him to the Selma Police Department for booking." The registered owner of the Neon was determined to be a "Francis Hernandez Canchola."
The driver of the Saturn was "a white male," "about 20 to 25 years old."
Officer Feller testified that when he arrived at the Walmart parking lot, he "saw Officer Clifton had his patrol vehicle parked behind a Saturn and Dodge Neon and he was out in front of both those vehicles talking to two male subjects." Feller continued: "I asked him what he needed help with, and he - he advised me that both subjects consented to a search of their vehicle[s] and asked me to go ahead and search both their vehicles." Feller did a quick search of the Neon. He found seven cell phones, some in plain view (including one that was plugged into a car charger) and others in the center console compartment. He also found "two $20 bills folded up" in a matchbook (behind the matches). After this initial search, "Gonzalez was placed in custody for the parole violation warrant." "Prior to [Gonzalez] leaving the scene, he was allowed to make a phone call from the cell phone that was plugged into the vehicle in order to contact the registered owner" of the Neon. "No one answered when he called" and "he left a message." Feller then re-searched the vehicle prior to having it towed.
"Upon searching the car a second time," Feller "searched it a little bit closer." He explained: "I was examining areas of the dashboard, and noticed that there was an air vent on the left side of the steering wheel that appeared to be really loose and had been popped off recently, and I was able to just push the air vent down, you know, using very little force, and it popped right open." Inside, he found a black eyeglass case containing "eye glasses, narcotics pipe[,] some black plastic packaging material[,] and ... six individually wrapped baggies with a white crystal substance inside." Thereafter, Feller saw that a dashboard panel with a defroster button had "some pry marks or some chips" indicating "someone had opened it or pried it open." Feller "popped it open" with a knife and found a "clear plastic Ziploc-type baggy with a large amount of what [he] believed to be methamphetamine inside." More specifically, the Ziploc bag contained "three additional Ziploc-type baggies," each of which "contained a large amount of methamphetamine."
Officer Feller subsequently used a chemical testing kit to test the substance in the various baggies found in the Neon; the substance "tested positive for methamphetamine." Feller also determined the methamphetamine in the Ziploc bag weighed 10.4 ounces (he testified that one ounce equals 28.5 grams). The smaller baggies in the eyeglass case contained smaller amounts such as 1.8 grams or 1 gram, apiece, quantities that are typical for narcotics sales (a 1.8 gram quantity is known as a "teener," which is a useable amount). Feller collected "the cell phones, the matchbook with the $40, the eyeglass case, and the large amount of methamphetamine," and "booked it into the evidence locker at the Selma Police Department."
The prosecution also called as a witness, Francisco Canchola-Hernandez, the registered owner of the Neon. Canchola-Hernandez testified, with the assistance of a Spanish interpreter, that he had known Gonzalez for "[a]bout ten years, maybe." Canchola-Hernandez had bought the Neon in 2011 but sold it to Gonzalez in March of 2012 or 2013 for $450 in cash, because by that point "[i]t had a problem" and was a "junked car." Specifically, it was inoperable because "[a]ll of the wiring was burnt out." Canchola-Hernandez explained: "I was gonna take it to the junk yard, but one day [Gonzalez] passed by where I lived, and he said he wanted to fix it, so I sold it to him." Gonzalez "took it to his house in a trailer. The car wasn't functional. It was junk." Regarding any paperwork submitted to the DMV in connection with the sale, Canchola-Herndandez testified: "I only sent in the paper that you send in to the D.M.V. [¶] I just filled out that paper and I mailed it in." Canchola-Hernandez continued to receive paperwork from the DMV regarding the car: "[T]hey continued to send me paperwork saying that I had to renew the registration, but I wasn't the owner anymore, so I just didn't." Canchola-Hernandez denied that he had made or used secret compartments in the car; he also denied having any knowledge of the methamphetamine found in the car.
The first time Canchola-Hernandez was contacted in connection with the instant case was when an investigator from the district attorney's office contacted him shortly before trial in the matter, in February 2015. However, Canchola-Hernandez recalled that his wife had received a voicemail message from Gonzalez around the time of the latter's arrest on June 30, 2013. Gonzalez wanted the car to be retrieved but Canchola-Hernandez did not respond to his request. Canchola-Hernandez explained that he had "nothing else to do with that vehicle" since he "had already sold it." Canchola-Hernandez received notices from the tow yard as well, which he also ignored, because "[the Neon] wasn't [his] anymore" and "[he] didn't have money to take it out either." Canchola-Hernandez confirmed on cross-examination that the Neon's air conditioner had "never worked."
Jody Flores, a senior investigator with the district attorney's office testified for the People. He explained that the district attorney's office has a device for extracting data from cell phones for forensic investigatory purposes. Flores was able to use this device to extract data from one of the cell phones seized from the Neon. Various pictures and 69 text messages were recovered from the phone. Flores downloaded the data to a computer or disc.
Rene Garza, a detective with the Selma Police Department, testified as an expert on the sale of narcotics for the People. Garza reviewed the evidence pertaining to the instant case. He testified that the numerous cell phones suggested narcotics sales activity because "it's real common for drug dealers to have a numerous amount of cell phones, even inoperable cell phones. A lot of times what they do is they - they like to switch out the SIM cards and put - place them into other phones or they just like to have what I call a throw-down phone, just to get rid of the phone so they're not traced back by - by law enforcement." He further explained that the quantity of methamphetamine and "the way it was packaged" also suggested it was meant for "quick sale." Flores had seen drug dealers use eyeglass cases to transport methamphetamine before, indeed it was a common occurrence. Garza also said that drug dealers frequently used secret compartments in their cars, to store and transport narcotics in such a way as to avoid detection.
Garza reviewed the text messages extracted from one of the cell phones found in the Neon. He read the text messages out loud. The first text message stated: "Hey Raul it's Roxanne. I seen you ... last at Shelly's. Remember me?" The second text message, received from "Party Shelly" on July 1, 2013, stated: "Hey want to make some $$$$." Garza stated that the second text message taken alone could mean anything, but viewed in the context of the evidence in the instant case it was "indicative [of] the sales of narcotics." Another text message stated: "Pass me a 10 or a 20 be better. I'll pay you no later than Saturday." Garza testified: "Basically it's asking for a 10, which I believe is a - referring to a dime bag or a 20, which is referring to a 20 bag, and basically I'll pay you no later than Saturday. Basically he's - this is drug talk. Whoever is texting this is saying they want a 10 or 20 bag, and I'll pay you Saturday." Garza concluded this text was "indicative of the sales of narcotics. Corroborates." The fourth text message, also from Shelley, stated: "Need a quarter." Garza explained the sender was asking for a quantity of drugs. The fifth and final text stated: "Just wanted to see if you were able to get some Vicodin or Norco." Garza testified this was a request for prescription drugs. Ultimately, Garza opined that, in the context of the instant case, the texts on the cell phone suggested that Gonzalez possessed the methamphetamine found in the Neon for purposes of selling it.
Garza explained a dime bag was a quantity of .1 grams and a 20 bag was a quantity of .2 grams.
Garza further testified that some of the pictures found on the cell phone—i.e., pictures of a stack of hundred dollar bills, stamped bricks of narcotics, and the emblem of the Cartel Del Golfo ("a notorious famous drug cartel out of Mexico")—also indicated, in the context of the other evidence, that Gonzalez was a drug dealer. These pictures glorified the lifestyle of drug cartel members and were collected by drug dealers for inspiration. Garza further testified that drug dealers tended to use salvaged vehicles that were "not registered to them," so as to avoid losing the car in a drug asset forfeiture, and also so the car would not be traceable to them or a drug kingpin they may be working for. Garza concluded: "Based on my experience as a police detective, as a patrol officer who worked the streets, um, who's talked to drug dealers and drug users, it's my opinion - and being on the Fresno County Narcotics Team and worked numerous cases, variety of different cases, it's my opinion that the individual who was in possession of this - of this methamphetamine, is - was engaged and is engaged in the sales of narcotics.
DISCUSSION
I. Accomplice Instruction Regarding Canchola-Hernandez
Gonzalez argues the trial court prejudicially erred in failing sua sponte to give an accomplice instruction with respect to Canchola-Hernandez. Specifically, he argues: "The trial court should have sua sponte instructed the jury to determine whether Hernandez was an accomplice and to view his testimony with distrust if he was an accomplice." We reject this contention as there was no basis for giving such an instruction, namely CALCRIM No. 334, in this case.
Canchola-Hernandez was the registered owner of the Neon but testified that he had sold the Neon, in inoperable and "junked" condition, to Gonzalez in March of 2012 or 2013, before Gonzalez's arrest in the instant matter. There was also evidence that when the police, prior to towing the Neon to an impound yard, gave Gonzalez an opportunity to contact the registered owner of the Neon, Gonzalez called Canchola-Hernandez's wife and left a message for her to retrieve the Neon. However, there was no evidence to suggest that Canchola-Hernandez was aware of the methamphetamine discovered in the Neon or that he was involved in the methamphetamine sales activity engaged in by Gonzalez. (See People v. Houston (2012) 54 Cal.4th 1186, 1224 (Houston) ["An accomplice is someone subject to prosecution for the charged crimes by reason of aiding and abetting or being a member of a conspiracy to commit the charged crimes"; an accomplice "'"'must have guilty knowledge and intent with regard to the commission of the crime."'"'"]; Pen. Code, § 1111 [defining "accomplice" as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given].) Accordingly, any inference that Canchola-Hernandez was Gonzalez's accomplice would be speculative. Since the trial court's sua sponte duty to give an accomplice instruction is triggered, on the contrary, only when there is "substantial evidence that a witness who has implicated the defendant was an accomplice," the trial court here did not err in failing to give this instruction. (Houston, supra, at p. 1223; see Lewis, supra, 26 Cal.4th at pp. 369- 370 [a defendant is not entitled to an accomplice instruction when the theory that a witness is an accomplice is speculative].)
Although Gonzalez suggests that Canchola-Hernandez was the driver of the Saturn, who was encountered by Officer Clifton in the Walmart parking lot, this suggestion finds no support in the record.
"Substantial evidence is 'evidence sufficient to "deserve consideration by the jury," not "whenever any evidence is presented, no matter how weak."'" (People v. Lewis (2001) 26 Cal.4th 334, 369 (Lewis).)
In any event, even were we to find error on the part of the trial court, the error would be harmless as Canchola-Hernandez's testimony was corroborated by the fact that Gonzalez was in possession of, and driving, the Neon, and told Officer Clifton at the scene that the Neon was his. (See Lewis, supra, 26 Cal.4th at p. 370 ["A trial court's failure to instruct on accomplice liability ... is harmless if there is sufficient corroborating evidence in the record" to "'connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.'"].) II. Admission of the Text Messages Extracted from Cell Phone
Gonzalez next argues that the trial court abused its discretion in admitting the text messages retrieved from one of the cell phones found in the Neon because the text messages were inadmissible hearsay. Assuming this issue was properly preserved for review, it has no merit.
"The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Hearsay is defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "As a rule, [hearsay] is inadmissible. [Citations.] Exceptions, however, exist." (People v. Waidla (2000) 22 Cal.4th 690, 717.)
Here the admitted texts were requests for drugs. The California Supreme Court has held that requests do not make any express assertion of fact, and thus are not hearsay. (See People v. Jurado (2006) 38 Cal.4th 72, 117 [declarant's request for a gun was not hearsay "[b]ecause a request, by itself, does not assert the truth of any fact" and "cannot be offered to prove the truth of the matter stated"]; People v. Garcia (2008) 168 Cal.App.4th 261, 289 ["Requests and words of direction generally do not constitute hearsay."]; People v. Nealy (1991) 228 Cal.App.3d 447, 451-452; People v. Ventura (1991) 1 Cal.App.4th 1515, 1518-1519.)
People v. Morgan (2005) 125 Cal.App.4th 935, 945 (Morgan) takes a different but equally persuasive approach. Morgan reasoned that requests for drugs were "implied assertions" in that they were relevant only because of the implication taken from the words stated. (Id. at p. 943.) In other words, the statement is relevant only if the person seeking the drugs actually wants the drugs asked for: it is the "genuine desire" on the part of the person seeking the drugs "that creates the inference that defendant's drugs are possessed for purposes of sale." (Ibid.) It follows that, "[w]hile the ultimate fact the statement is offered to prove is not the matter stated, the truth of the implied statement is a necessary part of the inferential reasoning process." (Ibid.) Despite the fact that requests for drugs are relevant only because of the truth of the implied assertion contained therein, Morgan explained they are more reliable than typical hearsay statements containing express assertions. A person making a request for drugs is simply attempting to buy drugs; he does not intend to assert that the recipient of the request is a drug dealer. (Id. at p. 944.) "When a declarant does not intend to communicate anything, however, his sincerity is not in question and the need for cross-examination is sharply diminished. Thus, an unintentional message is presumptively more reliable." (Ibid.) Morgan concluded: "The answer to the quandary created by nonassertive statements [like requests for drugs] is not to distort the definition of the hearsay rule and ignore the reality that a request to buy drugs is only relevant if the buyer believes he can buy drugs with his request. The answer is to recognize that the increased reliability of nonassertive statements justify the recognition of an exception to the prohibition on the use of hearsay." (Ibid.) Under Morgan, requests for drugs are therefore excepted from the prohibition against hearsay.
Whether we view the text messages challenged here as nonhearsay statements, or as implied assertions and hence hearsay statements that are excepted from the hearsay rule, the trial court did not err by admitting the text messages.
We decline Gonzalez's invitation to "reject the implied assertion exception to hearsay rule adopted in People v. Morgan."
In any event, even were we to assume the trial court erred in admitting the text messages, the error would be harmless as it is not reasonably probable that, absent the admission of the texts, the outcome of the proceeding would have been more favorable to Gonzalez. There was ample other evidence in the record—for example, the large amount of methamphetamine recovered, the manner in which it was packaged, and the numerous cell phones recovered from the car—for the jury to find, beyond a reasonable doubt, that Gonzalez possessed the methamphetamine for purposes of sale. (See Evid. Code, § 353; People v. Garcia, supra, 168 Cal.App.4th at p. 292.) III. Sentence Enhancement for Prior Drug Offense
In light of our resolution of this claim, we further reject Gonzalez's contention that the admission of the text messages rendered his trial fundamentally unfair and violated his constitutional rights. Finally, since we have found no errors, Gonzalez's claim of cumulative error also fails. (See, e.g., People v. Bacon (2010) 50 Cal.4th 1082, 1114; People v. Seaton (2001) 26 Cal.4th 598, 639.) --------
The information in this matter included a sentencing enhancement allegation pursuant to Health and Safety Code section 11370.2, subdivision (c), which, at the time Gonzalez was charged, tried, and sentenced in the instant case, provided for a "full, separate, and consecutive three-year term for each prior felony conviction [under] ... Section 11378 [prohibiting possession for sale]," among other drug statutes. (See former Health & Saf. Code § 11370.2, subdivision (c).) Here, the trial court imposed a sentence enhancement under Health and Safety Code section 11370.2, subdivision (c), because Gonzalez was found to have suffered a qualifying prior conviction under Health and Safety Code section 11378.
Health and Safety Code section 11370.2 was recently amended by Senate Bill 180, with the amendments taking effect on January 1, 2018. (Stats. 2017, ch. 677, § 1.) Health and Safety Code section 11370.2, as amended, establishes a sentence enhancement only for violations of Health and Safety Code section 11380, which criminalizes the use of a minor as an agent in the commission of a drug offense. (Stats. 2017, ch. 677, § 1.) The amended statute abolishes sentence enhancements predicated on violations of other drug statutes, including Health and Safety Code section 11378 (possession for sale). (Stats. 2017, ch. 677, § 1.)
Here, the trial court imposed a sentence enhancement pursuant to the former version of Health and Safety Code section 11370.2, on the basis of Gonzalez's prior possession for sale conviction under Health and Safety Code section 11378. The issue is, therefore, whether amended Health and Safety Code section 11370.2, which abolished enhancements based on prior violations of Health and Safety Code section 11378, applies retroactively to his case. Both parties agree that, under the holding of In re Estrada (1965) 63 Cal.2d 740 (Estrada), the amended enhancement statute applies retroactively.
Whether a statute has retroactive effect is ultimately a question of legislative intent. (See People v. Conley (2016) 63 Cal.4th 646, 659.) In this context, Estrada explains that when a statute mitigates punishment, it leads to the "inevitable inference" that the legislature intended for it to apply as broadly as possible, i.e., to all cases that were pending final judgment on its effective date. (Estrada, supra, 63 Cal.2d at pp. 744, 745 ["The key date [in determining whether a defendant receives the benefit of an ameliorative amendment] is the date of final judgment."].) Estrada's rationale applies when the legislature abolishes a crime or an enhancement. (See, e.g., People v. Rossi (1976) 18 Cal.3d 295, 301.)
Gonzalez's case was pending final judgment when the relevant amendment to Health and Safety Code section 11370.2 took effect on January 1, 2018. The amendment thus applies retroactively to his case. Accordingly, as requested by both Gonzalez and the People, we will strike the sentence enhancement imposed by the trial court pursuant to former Health and Safety Code section 11370.2, subdivision (c).
DISPOSITION
The three-year sentence enhancement imposed pursuant to former Health and Safety Code section 11370.2, subdivision (c), is stricken. The trial court is directed to prepare an amended abstract of judgment reflecting the change to Gonzalez's sentence, and to transmit the amended abstract to the appropriate correctional authorities. In all other respects, the judgment is affirmed.