Opinion
A146976
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN PATRICK HILL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-151378-7)
Defendant John Patrick Hill appeals from his jury conviction of one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378). He raises three issues on appeal. He first contends the trial court erred in denying his motion to suppress evidence, claiming he was unlawfully detained at the time the evidence was recovered. He next argues he was denied effective assistance of counsel after counsel failed to object to a statement made by the prosecutor during her closing argument. He lastly challenges three conditions of his mandatory supervision as vague and overbroad. We conclude the drug and alcohol supervision conditions should be modified and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with two counts of possession of a controlled substance for sale (one count occurred on February 17, and the other on February 9—counts 1 and 2 respectively). As count 1 was ultimately dismissed and is not at issue in this appeal, we summarize only those facts relevant to count 2.
Around 7:00 p.m. on the evening of February 9, 2015, Officer Michael Lincoln was dispatched to a shopping center to investigate a report of a woman stealing donations from a Goodwill trailer. When Officer Lincoln arrived, he made contact with a woman who had been going through the trash, and seconds later noticed a man he later identified as defendant. Lincoln could not recall what he said to defendant "verbatim," but asked if he could talk to him.
Defendant walked away from Lincoln, around the trailer, and then proceeded toward him. Lincoln was watching defendant's hands for officer safety reasons and "watched [defendant] stick his left arm out and drop a clear baggie on the ground." Lincoln did not say anything at the time and allowed defendant to continue to walk toward him, and at the same time another officer arrived on the scene. That officer began talking to the female who had been going through the trash and defendant, while Officer Lincoln went to inspect the baggie defendant had dropped. The sandwich baggie contained 10 smaller blue baggies, which Lincoln thought contained methamphetamine. At that point, Lincoln put defendant in handcuffs and placed the baggie into an evidence bag. No other drug paraphernalia or weapons were found on defendant.
Officer Lincoln originally thought there were 10 baggies, however, the crime lab discovered that one of the smaller baggies contained another baggie making the total 11.
The Contra Costa District Attorney charged defendant by information with two counts of possession of a controlled substance for sale (Health & Saf. Code, § 11378—counts 1 & 2) with two enhancements for prior convictions of possession of methamphetamine for sale (id., §§ 11370.2, subd. (c), 11378), and one enhancement for a prison prior (Pen. Code, § 667.5, subd. (b)). It was further alleged defendant was ineligible for probation (Pen. Code, §§ 1203, subd. (e)(4), 1203.07, subd. (a)(11)).
Defendant moved to suppress "all tangible and intangible evidence obtained as a result of the warrantless and unreasonable detentions, searches, and arrests of Mr. Hill that occurred on February 9, 2015 and February 17, 2015," including "any observations, statements, or testimony made or offered by members or affiliates of the Martinez Police Department regarding the illegal detentions, searches, and seizures of Mr. Hill," "any statements made by Mr. Hill," and "any suspected controlled substances, packaging, or paraphernalia." (See Pen. Code, § 1538.5.) After a hearing on the matter, the trial court granted the motion as to count 1 and denied it as to count 2 and trial was set. The trial was bifurcated as to the alleged prior convictions.
At trial, Officer Lincoln testified the shopping center was located in a known drug area. He had contact with meth users every day, and he had contacted over a hundred individuals for possession of methamphetamine for sale in his tenure as a police officer. Having spoken to many users, he estimated that an average user would consume anywhere from half a gram to a gram a day and a heavy user would use up to two grams.
The jury found defendant guilty of count 2. The People moved to dismiss the prison prior. The trial court found the two remaining enhancements true though the court struck one of the enhancements due to defendant's lack of violence in his crimes. The court sentenced defendant to two years for the substantive count and three years for the remaining prior conviction enhancement, for a total of five years. He was ordered to serve two years in county prison (with 244 day's credit), with the remaining three years suspended and mandatory supervision subject to certain terms and conditions. Those included: (1) "[Y]ou may not own, have in your possession or under your control or custody any handgun, rifle, shotgun, or any other firearm whatsoever, or any weapon that could be concealed upon your person"; (2) "You shall not use, possess, or have under your control any dangerous drugs, narcotics, or narcotic paraphernalia"; and (3) "You may not go to any establishment where alcohol is the chief item of sale."
DISCUSSION
Motion to Suppress
Defendant argues he was unlawfully detained at the time he dropped the baggie of methamphetamine and thus the trial court erred when it denied his motion to suppress.
"In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment." (People v. Simon (2016) 1 Cal.5th 98, 120; People v. Glaser (1995) 11 Cal.4th 354, 362.)
During the hearing on the motion to suppress, Officer Lincoln testified he was called to the scene to investigate a report of a female stealing donations from a Goodwill trailer, and upon arrival he saw defendant and asked to speak to him. Lincoln testified that he said something like, " 'Hey, can I talk to you?' " or words to that effect. Defendant initially walked not directly toward Lincoln but around the trailer, and then, as he approached, he dropped a baggie on the ground and continued toward Lincoln. At that point, another officer arrived on the scene and began talking to both the female suspect and defendant. Lincoln then investigated the baggie, found what appeared to be methamphetamine, and then returned and handcuffed defendant. The court concluded defendant voluntarily came over when Lincoln asked if they could speak and, while walking over, he dropped the bag of methamphetamine. "At that point in time," the court stated, "he had enough reasonable suspicion to detain the defendant while he went and looked at the bag. It was not an unduly long detention. And once he saw the bag, he could see in plain view these little baggies and what was in them."
Defendant argues, looking at the "totality of the circumstances," he was detained the moment Officer Lincoln spoke to him. He argues that "the encounter was part of a police investigation and no reasonable person would believe he was free to depart."
In People v. Bennett (1998) 68 Cal.App.4th 396, police officers conducting a prostitution sweep saw the defendant talking to a prostitute. One of the officers asked, " 'Can I talk to you for a moment?' " to which the defendant replied affirmatively and complied. No threats, force, or restraints were used during the encounter. The court in calling this "a classic consensual encounter," ruled "[f]rom all appearances [the defendant's] responses were all voluntarily given, and nothing was done by [the officer] to transmogrify the consensual tone of the conversation or stop [the defendant] from simply walking away." (Id. at pp. 399, 402.) So too here.
" '[P]olice officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions' without implicating the Fourth Amendment." (People v. Bouser (1994) 26 Cal.App.4th 1280, 1284 (Bouser).) Defendant was free to simply walk away from Lincoln's request to talk to him or he could comply. (People v. Bennett, supra, 68 Cal.App.4th at p. 403, fn. 7 ["An individual's decision to cooperate must merely be consensual; it need not be intelligent . . . ."].) The Fourth Amendment prevents unreasonable searches and seizures; it does not prevent voluntary encounters between law enforcement and citizens, and as defendant was free to ignore or deny Lincoln's request to talk to him, his suppression motion was properly denied. (Bouser, at pp. 1287-1288; see In re Manuel G. (1997) 16 Cal.4th 805, 821 ["Consensual encounters do not trigger Fourth Amendment scrutiny."].)
Ineffective Assistance of Counsel Claim
Defendant contends he was denied effective assistance of counsel due to defense counsel's failure to object to the prosecutor's asserted misstatement of the burden of proof as well as use of an asserted erroneous analogy during her closing argument.
During her closing, the prosecutor stated, "[t]he only thing really that is at issue is the purpose. Why did the defendant possess the methamphetamine?" She notes, "But the jury instruction specifically says you are not allowed to investigate, and the problem with using circumstantial evidence—or the problem with looking at specific intent is what the law is asking you to do is to go back to February 9th, 2015, and figure out what was inside defendant's head . . . . And the only way to do that is to look at the circumstantial evidence that we have . . . . We have to look at all the evidence that's before us and decide what's reasonable and reject any unreasonable conclusions."
The prosecutor then went on to give an example to the jury involving her and her husband's two gray cats. She mentions her cat throws up yellow hairballs, while her husband's cat's hairballs are dark brown. The rule in her house is "whoever's cat threw up, the [owner of that cat] has to clean it." The day before the closing argument, the prosecutor comes home to find a yellow stain on the carpet with gray fur. She continues, "So I'm standing there and I'm trying to think . . . how am I going to convince my husband that this is not my cat's puke? . . . And I could not come up with any reasonable conclusion other than the fact that it was my cat. [¶] Did I see him do it? No. But the circumstantial evidence I have . . . that evidence what I have before me means that I have to clean up the puke. [¶] Now, I'm not trying to minimize my burden here, but really what this case comes down to is you applying all the evidence you heard in this case to do the same thing that I was doing last night, decide what's a reasonable conclusion and accepting only those that are reasonable and rejecting anything that is unreasonable."
In order to establish a claim of ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice . . . . When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant cites People v. Centeno (2014) 60 Cal.4th 659 (Centeno) as analogous. In Centeno, the Supreme Court held that the prosecution's explanation of the burden of proof with a hypothetical about a trial of whether a diagram depicted the state of California was improper, that the prosecutor's closing hypothetical and closing argument diluted the burden of proof by suggesting the jury could find the defendant guilty "based on a 'reasonable' account of the evidence," that defense counsel was deficient in failing to object, and that there was a reasonable probability but for counsel's deficiency the result would have been different. (Id. at pp. 669-673, 675-677.) "Counsel trying to clarify the jury's task by relating it to a more common experience must not imply that the task is less rigorous than the law requires." (Id. at p. 671.)
The prosecutor's analogy certainly left a lot to be desired, from the questionable choice of subject matter to her convoluted effort to abide by the standard of proof. However, the prosecutor did not, contrary to what defendant claims, actually urge the jury to decide the case under the wrong standard. The prosecutor told the jury "this case comes down to . . . you applying all the evidence you heard in this case . . . decid[ing] what's a reasonable conclusion and accepting only those that are reasonable and rejecting anything that is unreasonable." She then went on to talk about the evidence, implying strongly that the only reasonable conclusion was that defendant was in possession of the drugs for sale, not that there being two reasonable conclusions one of which is hers she has met her burden. (See People v. Romero (2008) 44 Cal.4th 386, 416 [prosecutor explaining in closing argument that "reasonable doubt standard asks jurors to 'decide what is reasonable to believe versus unreasonable' and to 'accept the reasonable and reject the unreasonable,' " did not in any way lessen the prosecution's burden of proof].)
In any case, there is a readily apparent tactical reason why defense counsel would not have objected. "When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one' [citations], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.' " (Centeno, supra, 60 Cal.4th at p. 675.) Counsel could have refrained from objecting so as not to belabor the prosecution's poor hypothetical and, in his own closing, to drive home the significance of the beyond-a-reasonable-doubt standard. Indeed, in his closing, defense counsel spent some time going over and clarifying the jury's role in deciding this case.
Moreover, the failure to object was not prejudicial. " ' "When [closing] argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " ' " (People v. Reyes (2016) 246 Cal.App.4th 62, 78, quoting Centeno, supra, 60 Cal.4th at p. 676.) Here, both before and after the lawyers' closing arguments, the trial court also reminded jurors that "what the attorneys say is not evidence so you rely on the evidence."
Knowledge Requirement in Supervised Release Conditions
Defendant maintains three conditions of his mandatory supervision are unconstitutionally vague and overbroad because there is no "knowledge" requirement. Those conditions are: (1) "[Y]ou may not own, have in your possession or under your control or custody any handgun, rifle, shotgun, or any other firearm whatsoever, or any weapon that could be concealed upon your person"; (2) "You shall not use, possess, or have under your control any dangerous drugs, narcotics, or narcotic paraphernalia"; and (3) "You may not go to any establishment where alcohol is the chief item of sale."
Mandatory supervisions have been likened to parole and "[t]he validity and reasonableness of parole conditions is analyzed under the same standard as that developed for probation conditions." (People v. Martinez (2014) 226 Cal.App.4th 759, 764.)
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Whether these conditions are unconstitutionally vague and overbroad and must be supplemented with a "knowledge" requirement is an issue presently before our Supreme Court. We need not, and do not, set forth the varying views as to the validity of such conditions, as they have been fully explicated in the cases now before the high court. Suffice it to say it is our view that no knowledge requirement is needed in connection with the no-weapons condition, given the mens rea required for a violation of a probation/parole/mandatory supervision condition. As for the drug condition, we order it modified to prohibit use, possession or control of "controlled substances" without a prescription. Finally, as to the alcohol establishment condition, we agree a "knowledge" requirement is appropriate.
See, e.g., People v. Gaines (2015) 195 Cal.Rptr.3d 842, 847, review granted February 17, 2016, S231723 [adding knowledge requirement to alcohol establishment condition; replacing term "dangerous drugs" with "controlled substances" and allowing use of controlled substances with valid prescription; and making no change to weapons condition]; People v. Hall (2015) 236 Cal.App.4th 1124 , review granted September 9, 2015, S227193 [making no change to no "illegal" drug and no weapon conditions]. --------
DISPOSITION
The drug condition is modified to read: "You shall not knowingly use, possess, or have under your control any controlled substances, narcotics, or narcotic paraphernalia without a valid prescription." The alcohol condition is modified to read: "You may not go to any establishment where you know alcohol is the chief item of sale." In all other respects, the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.