Opinion
F069386
04-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ISAAC SANCHEZ, Defendant and Appellant.
Ann Bergen, 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, Lewis A. Martinez and Amanda D. Cary, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF152043B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Ann Bergen, 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, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant challenges the sufficiency of the evidence to support his conviction on one count charged. He also contends errors in the trial, including alleged instances of juror misconduct and prosecutorial misconduct, cumulatively denied him a fair trial on all counts. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in count 2 with opening or maintaining a place for unlawfully selling, giving away, or using a controlled substance (Health & Saf. Code, § 11366); in count 3 with possession of drug paraphernalia (§ 11364.1); and in count 4 with being under the influence of a controlled substance (§ 11550, subd. (a)), all misdemeanors. The case was tried to a jury, which found defendant guilty on all counts.
Count 1 was not alleged against this defendant.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Count 2 was originally charged as a felony, but was reduced by the trial court to a misdemeanor at the preliminary hearing.
On December 5, 2013, the special weapons and tactics (SWAT) team and deputies from the Kern County Sheriff's Department executed a search warrant at defendant's residence. There were surveillance cameras outside the house, connected to several monitors inside. In defendant's bedroom, deputies found a surveillance monitor and a glass pipe of the type used for smoking methamphetamine, with apparent methamphetamine residue in it. In another resident's bedroom, they found containers containing small amounts of suspected methamphetamine, a backpack containing a plastic bag with smaller baggies inside, a pipe torch, weighing scales, and video surveillance monitors. Three of the five occupants of the house at the time of the search admitted to recent use of methamphetamines at other locations; two provided urine samples which confirmed use within the previous 24 to 48 hours. Defendant denied using methamphetamine and did not provide a urine sample. The deputy who administered field sobriety tests to the occupants concluded three of them, including defendant, were under the influence of methamphetamine.
DISCUSSION
I. Sufficiency of the Evidence to Support a Conviction of Opening or Maintaining a Place for the Use or Sale of Methamphetamines
Defendant challenges the sufficiency of the evidence to prove that defendant opened or maintained a place for the use or sale of methamphetamines.
A. Standard of review
"'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) In doing so, the appellate court must review the whole record in a light most favorable to the judgment and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Id. at pp. 576, 578.) The evidence supporting each of the essential elements of the offense must be substantial. (Id. at p. 577.) "Evidence, to be 'substantial' must be 'of ponderable legal significance ... reasonable in nature, credible, and of solid value.'" (Id. at p. 576.)
B. Elements of the offense
"Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance ... shall be punished by imprisonment ...." (§ 11366.) The elements of the offense are "that the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance." (People v. Hawkins (2004) 124 Cal.App.4th 675, 680 (Hawkins).)
"[E]vidence of a single instance of drug use or sales at the house, without circumstances supporting a reasonable inference that the house was used for the prohibited purposes continuously or repetitively, does not suffice to sustain a conviction of the opening-or-maintaining offense." (Hawkins, supra, 124 Cal.App.4th at p. 682.) Further, "although the term 'use' in section 11366 is not expressly confined to use by others, in context the term reasonably can be viewed as referring to use by persons other than or in addition to the defendant." (People v. Franco (2009) 180 Cal.App.4th 713, 721.) Thus, maintaining a place for personal use of controlled substances by defendant alone does not suffice.
Defendant contends there was insufficient evidence to establish continuous use for the prohibited purposes, as opposed to a single instance of use, and there was insufficient evidence it was defendant, rather than another resident, who opened or maintained the house for drug sales or use.
C. Evidence at trial
The evidence presented at trial included the following. Seven to 10 days prior to the December 5, 2013, search, sheriff's deputies conducted surveillance of defendant's residence and observed heavy foot traffic in and out of the residence, which is indicative of possible narcotics activity. They also conducted a controlled buy of narcotics there. On December 5, 2013, at approximately 6:00 a.m., they executed a search warrant at the residence. The SWAT team entered, located the five occupants and took them outside, where they were held during the search. The occupants were defendant, his brother Simon Sanchez, Richard Rubio, Jerrell Ringold, and Christian Gastelum. Defendant testified the house belonged to his mother; on the date of the search, defendant, Simon, and Rubio lived in the house. Ringold and Gastelum were Simon's friends.
Defendant described Rubio as the father of his niece's children. --------
Deputies conducting the search found three security cameras on the outside of the house connected to several monitors inside; there were several televisions in defendant's bedroom, one of which was turned on and operating as a monitor of a security camera outside at the time of the search. Deputies found a glass methamphetamine smoking pipe in a trash can in the kitchen, another on the bed in defendant's bedroom, and a third at an unknown location in the house. In Rubio's bedroom, they found a container holding suspected methamphetamine, a pipe torch, which is used to light methamphetamine pipes, a backpack containing a plastic bag with smaller baggies inside, such as are used for sales of controlled substances, and weighing scales. There were video surveillance monitors in Rubio's bedroom as well. There was testimony that the couches and chair in the living room were arranged in a square, facing each other, which is common in houses where people sit around and share narcotics, although it is also consistent with Super Bowl parties.
Deputy Velasquez performed evaluations to determine whether the occupants were under the influence of a controlled substance. He concluded from the results for Gastelum, Ringold, and defendant that they were under the influence of a central nervous system stimulant, such as methamphetamine. Gastelum and Ringold also provided urine samples, which tested positive for methamphetamines in amounts indicating use within the previous 24 to 48 hours. Defendant agreed to provide a urine sample, but did not provide one when given the opportunity; he said he was unable to do so, although he was allowed to make several attempts.
Ringold admitted to deputies that he had smoked methamphetamine the previous afternoon at a friend's house; he would not identify the friend. Rubio admitted using methamphetamine every other day, including two days before the search; he told deputies he had ingested the methamphetamine in an alley. Gastelum told deputies that he had snorted methamphetamine the previous morning in his bathroom. Defendant told a deputy he did not use drugs himself, had last used methamphetamine a year before, and was not aware of any narcotics activity going on in the house; he also stated he let a lot of people come and hang out there.
D. Continuous use
In addition to evidence of objects on the premises that are associated with the ingestion or sale of methamphetamines, including multiple glass pipes, a pipe torch, a plastic bag containing smaller plastic baggies, and weighing scales, there was evidence deputies conducted surveillance at the residence several days prior to the search and observed heavy foot traffic in and out of the residence, which is a sign of possible narcotics activity. They also conducted a controlled narcotics buy. The residence was protected by an extensive surveillance system, not common in a poor neighborhood like the one where defendant's house was located, which suggests an ongoing desire by the residents to be forewarned of anyone's approach to the house. The furniture in the living room was arranged in a manner common in houses where people sit and share narcotics.
At the time of the search, there were two individuals present who did not live in the house. The evidence indicated both were under the influence of methamphetamine they had ingested within the previous 24 to 48 hours. The jury was not required to believe their statements that they ingested the methamphetamine elsewhere. Additionally, the deputy performing field sobriety tests concluded defendant was under the influence of methamphetamine; Rubio, another resident of the house, admitted using methamphetamine regularly. Defendant told a deputy "he lets a lot of people come hang out but ... he, himself, does not use drugs."
Reviewing the whole record in a light most favorable to the judgment, we conclude there was substantial evidence to support a jury finding beyond a reasonable doubt that defendant was continuously or repeatedly using the residence for the prohibited purposes. (Hawkins, supra, 124 Cal.App.4th at p. 680.)
E. Defendant opened or maintained the house for the prohibited purpose
"The People, of course, may rely on circumstantial evidence to connect the defendant with the commission of the crime charged and to establish beyond a reasonable doubt that he committed it.... ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Reilly (1970) 3 Cal.3d 421, 424-425.)
Defendant contends that, if the house was opened or maintained for the sale or use of controlled substances, it was more likely Rubio or Simon who opened or maintained it. He argues the bulk of the narcotics-related items (the bag of baggies, the container holding a small amount of suspected methamphetamine, the pipe torch, and the weighing scales) were found in Rubio's bedroom, and Gastelum and Ringold were friends of Simon. Defendant asserts he was asleep at the time the deputies arrived, and did not even know Gastelum and Ringold were in the house.
There was ample evidence that defendant opened or maintained the house for unlawful purposes, even if Rubio or Simon also participated in opening or maintaining it for those purposes. Defendant testified he was asleep in his bedroom on December 5, 2013, until Ringold came in and woke him to tell him law enforcement officers were at the door. There was evidence the deputies found clutter on defendant's bed, suggesting he had not been sleeping in it when they arrived to search.
Defendant testified he was an automotive technician and worked on cars outside the house. He used expensive diagnostic tools, including one worth $5,000. It was a bad neighborhood, and if he went in the house he used the surveillance system to keep an eye on his tools and the cars. At the time of the search, the $5,000 diagnostic tool was in its case on the bed in his room. The video surveillance monitor in defendant's bedroom was operating at the time of the search, monitoring the front yard.
A methamphetamine pipe was found in defendant's bedroom and another was found in plain sight in the kitchen trash can. The video surveillance system had monitors in the front room, Rubio's bedroom, and defendant's bedroom, connected to cameras on the outside of the house; the monitor in defendant's bedroom was operating even though he was not working on cars outside at the time, and the $5,000 diagnostic tool was in the bedroom with him. The arrangement of the furniture in the living room was consistent with group drug use. Defendant denied using methamphetamine in over a year, but the deputy performing field sobriety tests concluded he was then under the influence of methamphetamine. Defendant told a deputy that he (not Rubio or Simon) let people come and hang out at the house.
After reviewing the entire record in a light most favorable to the judgment, we conclude, there was substantial evidence to support a jury finding beyond a reasonable doubt that defendant opened or maintained the house for the purpose of unlawfully selling, giving away, or using methamphetamine.
II. Cumulative Errors
Defendant contends several errors occurred during the course of the trial that, when combined, denied defendant a fair trial.
A. Juror misconduct
A juror may be discharged upon good cause rendering the juror unable to perform his or her duty. (Pen. Code, § 1089.) "[O]nce put on notice that good cause to discharge a juror may exist, the court has a duty to make whatever inquiry reasonably is necessary to determine whether the juror should be discharged." (People v. Bradford (1997) 15 Cal.4th 1229, 1351.) "[T]o establish juror misconduct, the facts must establish ' "an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality." ' " (Ibid.) "The decision whether to investigate the possibility of juror bias, incompetence, or misconduct, as well as the ultimate decision whether to retain or discharge a juror, rests within the sound discretion of the trial court. [Citation.] If any substantial evidence exists to support the trial court's exercise of its discretion pursuant to section 1089, the court's action will be upheld on appeal." (Ibid.)
At the end of the first day of witness testimony, defense counsel reported to the trial court that defendant's cousin had heard Juror No. 4 talking outside the courtroom to another juror and say, "he's guilty." The next morning, the trial court questioned the cousin, Frank Andrade, under oath about what he had heard. Andrade testified he could not see, except shadows. He stated he could see colors a little bit, but later said everything he sees is black and white. He heard someone say "he's guilty" and when he raised his head, he saw colors, "maybe white and black, long, and that's it." On further questioning, he stated he heard two women talking. One said "he's guilty" and the other said "something about April the 8th that but when we go back, they'll tell us." He thought when he started hearing the voices that people were coming out of a door.
Defense counsel interpreted Andrade's description to mean a woman in a long black and white dress, and concluded it was most likely Juror No. 4 who had worn a long, blue and white striped dress. He requested that Juror No. 4 be dismissed; alternatively, he requested that the entire panel or all the women on it be dismissed. The trial court noted it had heard nothing in the testimony about a long dress. The prosecutor pointed out there were multiple courtrooms on that floor, with people present for trials or hearings, including attorneys discussing their cases. He suggested the trial court ask the jurors individually whether they had prejudged the evidence. The trial court concluded it would ask all the jurors individually whether they could keep an open mind. There is no transcript of the questioning of the jurors in the record.
Defendant argues he was denied a fair trial because a juror concluded he was guilty in the middle of the prosecution's case. His argument assumes the woman speaking was a juror in defendant's case. Andrade's vague testimony provided an insufficient basis for concluding that the speaker was a juror in his case. He testified he saw something black and white, but added he could only see black and white. He did not testify he saw a long dress. It was not clear whether the person who spoke even came out of the courtroom where defendant's trial was in progress. The trial court conducted an inquiry, first by questioning Andrade about what he observed, then by speaking with the jurors about their ability to keep an open mind in judging defendant's case.
No abuse of the trial court's discretion has been demonstrated. Defendant has not pointed us to any evidence in the record indicating that, after the trial court spoke with the jurors, any juror was unable to perform and that inability was a demonstrable reality. Accordingly, there was no error by the trial court.
B. Prosecutorial misconduct
Defendant identifies three incidents he contends constituted prosecutorial misconduct that, cumulatively, denied him a fair trial. "A prosecutor's conduct 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. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) "The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor." (People v. Mendoza (2007) 42 Cal.4th 686, 700.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Morales, at p. 44.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).)
" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (People v. Hill (1998) 17 Cal.4th 800, 820.) An exception is made if a timely objection or request for admonition would have been futile, or if an admonition would not have cured the harm caused by the misconduct. (Ibid.)
We discuss each claim of misconduct in turn.
1. Stolen property
During his examination of Deputy Seibert, the deputy in charge of the investigation, defense counsel elicited testimony that objects in the house appeared to have been moved during the search. The following exchange occurred:
"[DEFENSE COUNSEL]: Okay. Do you know who moved those objects?
"[DEPUTY SEIBERT]: I do not.
"Q. Okay. Can you tell us why is it that some of these objects were moved in that area—general vicinity?
"A. I could tell you what Deputy Vasquez was doing—
"Q. What was he doing?
"A. —which would somewhat explain that. He was running serial numbers of items that we suspected may have been stolen. So—"
During the prosecutor's cross-examination of the same witness, he referred to that testimony:
"[THE PROSECUTOR]: Well, let's move onto some of the objects that you said you suspected some of the objects had been stolen?
"[DEFENSE COUNSEL]: Objection, your Honor. That's irrelevant.
"THE COURT: Sustained.
"[DEFENSE COUNSEL]: Move to strike.
"THE COURT: Stricken."
Out of the presence of the jury, Seibert told the trial court no stolen property had been found. Defendant moved for a mistrial, which the trial court denied. Subsequently, with the jury present, the prosecutor, again addressing the movement of objects on the premises, asked if certain items may have been cataloged by deputies. Some of defense counsel's objections to these questions were sustained; Seibert testified that he "couldn't say to a certainty" whether certain items were cataloged and he did not know for what purpose individual items were moved. Defense counsel did not ask whether any stolen property had been found during the search.
Defendant complains that "the jury never learned that no stolen objects were discovered" and was left with the impression defendant or other residents of the house may have had stolen property. But defense counsel never asked the witness whether stolen property was found on the premises, even after the trial court asked Seibert that question when the jury was not present and obtained a negative answer.
Part of the defense was aimed at demonstrating that objects within the house were moved during the search, to suggest that the methamphetamine pipe found in defendant's bedroom was not there prior to the search and that the clutter in defendant's bedroom and on his bed was a result of the search. It was not the prosecutor, but defense counsel, whose questioning initially elicited the response indicating deputies were checking for stolen property. The prosecutor's questioning was aimed at explaining why certain objects were moved from their original locations. If "the jury never learned that no stolen objects were discovered," it was not through the misconduct of the prosecutor.
2. Misstatement regarding "under the influence"
Defendant contends the prosecutor engaged in misconduct when, during his cross-examination of defendant, he misstated what a previous witness had testified; the trial court did not immediately sustain defendant's objection to the question.
Criminalist Ada Rodriguez testified to her analysis of the urine samples of Ringold and Gastelum. She stated that both were positive for methamphetamine, and from the test results she opined they had ingested methamphetamine within the last 24 to 48 hours. Subsequently, during cross-examination of defendant, the prosecutor asked: "You heard the criminalist, Miss Rodriguez, testify last week that Mr. Ringold and Mr. Gastelum were under the influence of methamphetamine, right?" Defense counsel objected on the ground the question misstated the record; the trial court overruled the objection. Defendant then answered, "I remember him talking about it, yes."
Later the same day, after the prosecution's closing argument, the trial court informed the parties it had reviewed Rodriguez's testimony, and defendant's objection should have been sustained. The trial court then advised the jury that it had made an error in overruling defendant's objection to the question about certain individuals being under the influence, because Rodriguez had not stated anyone was under the influence. It told the jury the testimony was stricken and not to be considered.
Defendant argues that the issue was whether Gastelum and Ringold used methamphetamine at defendant's residence. He claims the suggestion that Rodriguez had testified both men were under the influence bolstered Velasquez's testimony to that effect, and this somehow could have led the jury to conclude the methamphetamine was used at the residence. We do not see how the difference between testimony that the two men were under the influence of methamphetamine and testimony that the two men tested positive for methamphetamine and ingested it within 24 to 48 hours would lead the jury to reach any conclusion about the location at which the methamphetamine was ingested. The trial court corrected the error. We assume the jury followed its instructions and disregarded defendant's testimony. (People v. Boyette (2002) 29 Cal.4th 381, 431, 436.)
The prosecutor's conduct did not amount to misconduct. It did not infect the trial with such unfairness as to make the conviction a denial of due process, nor did it involve the use of deceptive or reprehensible methods to persuade the jury. (Morales, supra, 25 Cal.4th at p. 44.)
3. Closing argument
"It is also misconduct for a prosecutor to make remarks in opening statements or closing arguments that refer to evidence determined to be inadmissible in a previous ruling of the trial court." (Crew, supra, 31 Cal.4th at p. 839.) Defendant contends the prosecutor engaged in misconduct by mentioning in his rebuttal closing argument testimony that had been stricken.
When the prosecutor was questioning Seibert, he asked how the controlled buy of narcotics occurred. Seibert responded: "I had a concerned citizen approach me, telling me that they knew that there was narcotics being sold from that residence." The trial court sustained a defense objection and struck the testimony. During his rebuttal closing argument, the prosecutor stated, "Remember what Deputy Seibert told how they decided to go search that residence, a concerned citizen." Defendant objected and the trial court sustained the objection.
Defendant contends he was denied his Sixth Amendment right to confront witnesses against him because no "concerned citizen" testified and was subjected to cross-examination. He further asserts it was misconduct to mention this excluded evidence during rebuttal closing argument, when defendant had no further opportunity to respond to it.
The trial court sustained objections to both references to the concerned citizen, and struck the testimony by Deputy Seibert. "When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided." (People v. Bennett (2009) 45 Cal.4th 577, 595.) Moreover, in its instructions, the trial court instructed the jury to decide the facts based only on the evidence presented at trial. It further instructed that, if the trial court sustained an objection, the question was to be ignored; if it ordered testimony stricken from the record, it must be disregarded and not considered for any purpose. The trial court also instructed the jury that nothing the attorneys said, including closing argument, was evidence. Defendant's argument that the jury was led "to believe that there was something extremely damaging to the defense that was not presented to the jury" is speculation and assumes the jury did not follow the instructions.
Although the prosecutor erroneously referred to stricken testimony, we conclude it did not rise to the level of prosecutorial misconduct. The mention of it was brief, and the trial court immediately sustained an objection to it. There is no reasonable likelihood that the jury construed or applied the prosecutor's reference to the concerned citizen in his closing argument in an objectionable fashion. (Morales, supra, 25 Cal.4th at p. 44.) Accordingly, it did not amount to prosecutorial misconduct.
C. Exhibit in jury room
Exhibit No. 45 was a copy of Rodriguez's laboratory report reflecting the examination and analysis she performed on the urine samples. It was not admitted into evidence due to defendant's objection. When the jury had reached its verdict, but before the verdict was read, the trial court discovered exhibit No. 45 was among the materials sent into the jury room during deliberations. The trial court sent the jury back to have the foreperson determine whether the exhibit had been reviewed by any jurors and, if so, whether it had underscored the jury's decision. When the jury returned, the foreperson answered that the exhibit had not been reviewed by the jury. The court then had the verdict read.
Defendant contends the cumulative effect of this error, combined with those previously discussed, denied defendant a fair trial. Since the jury informed the trial court it did not even review exhibit No. 45, the error could not have affected the verdict.
D. Cumulative error
Having rejected each of defendant's claims of misconduct or other error, we conclude the claim of cumulative error also fails. The errors asserted by defendant, alone or together, are not of such severity that we can conclude they resulted in an unfair trial in violation of defendant's state or federal constitutional right to due process of law.
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
POOCHIGIAN, J.