In re Joseph D.

Filed 10/16/06 In re Joseph D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Johnson, Judge. (Retired Judge of the Superior Court of San Diego County, assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.) Reversed and remanded with directions.

I.

INTRODUCTION

In July 2005, federal authorities at the San Ysidro Port of Entry (port) discovered 99.48 pounds of marijuana hidden in a car in which Joseph D. (Joseph) was riding as a passenger. In August, the People filed a petition pursuant to Welfare and Institutions Code section 602 in which they alleged that Joseph had unlawfully transported into the state more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a))^[1] (count 1), and that he had unlawfully possessed marijuana for sale (§ 11359) (count 2). The juvenile court held an adjudication hearing, sustained the petition, and found both allegations to be true. The court granted Joseph probation for one year, or until his eighteenth birthday, whichever was longer.

On appeal, Joseph contends that the trial court committed reversible error by admitting in evidence various translated statements that he purportedly made to a police officer during an interview conducted after his detention at the port. Joseph claims the translated statements were improperly admitted because the People failed to establish the accuracy of the translation pursuant to the factors established in Correra v. Superior Court (2002) 27 Cal.4th 444 (Correra). Joseph also claims there is insufficient evidence that he knew there was marijuana hidden in the car.

We conclude that the trial court committed prejudicial error in admitting the translated out-of-court statements. However, we conclude that there is sufficient evidence that Joseph knew there was marijuana in car. Accordingly, we reverse the judgment and remand for a new adjudication hearing.

II.

FACTUAL BACKGROUND

A. The People's case

1. The initial encounter at the border

At approximately 4:30 p.m. on July 28, 2005, Moses Castillo, an officer with the United States Department of Homeland Security, Customs and Border Protection, was on duty at the port. A 1990 Chevy Beretta approached the port. Joseph was sitting in the passenger seat of the car. As the car stopped at the port, Officer Castillo asked Joseph for his identification. Joseph's hand was trembling as he handed his identification to Officer Castillo. Officer Castillo asked Joseph and the driver of the car, Saul Rubio, where they were going. Rubio and Joseph both stated that they were going to the beach. Officer Castillo asked what the two were bringing with them from Mexico. Joseph pointed to a boogie board in the back seat.

Officer Castillo glanced down and noticed that Rubio's knees were almost level with the steering wheel. Officer Castillo suspected that the floor of the car had been modified. Castillo used a device called a "buster" on the rear panel of the driver's side door. Officer Castillo explained that a buster is used to check "depth perception," to attempt to discover hidden objects. The buster indicated the presence of an object in the panel. After noticing that the panel was "really loose," Castillo removed the panel with his hand. He found a package in the door that was wrapped in tape. Officer Castillo handcuffed Rubio and called another officer over to handcuff Joseph.

2. Officer Sauer's inspection of the car

Shortly thereafter, Officer Kurt Sauer from the United States Department of Homeland Security, Customs and Border Protection, inspected the car. Upon opening the door to the car, Officer Sauer noticed that the floor was higher than normal, the seats were set up high, and there was not the ordinary "dip" in the floor of the back seat where passengers place their feet. Officer Sauer also noticed that the front passenger's seat and the driver's seat were held down by "shiny sheet metal screws," rather than by the "factory large bolts," that are ordinarily used to secure seats to the floor of a car. Officer Sauer explained that as a result of the modifications to the car, a person could move the whole seat mechanism from side to side with "very little effort."

Officer Sauer discovered that a false floor had been installed above the factory floor of the car, creating a hidden compartment that was approximately five to six inches in height. The compartment was located on both the driver's side and the passenger's side of the car, and extended from the front of the car to the rear seat. Officer Sauer discovered a total of 17 packages containing marijuana hidden throughout the car, including two packages in the driver's side quarter panel, one in the back of the driver's seat, one in the back of the front passenger's seat, five in the driver's side floor compartment, seven in the passenger's side floor compartment, and one in the passenger's side quarter panel. The packages contained a total of 99.48 pounds of marijuana.

3. Special Agent Dorsey's interview of Joseph

At approximately 5:00 p.m. that evening, Special Agent Jennifer Dorsey of the Department of Homeland Security, Immigration and Customs Enforcement, reported for duty at the port. Agent Dorsey contacted Joseph and requested assistance in interviewing him. Officer Douglas^[2] of the San Diego Police Department assisted Agent Dorsey with her interview of Joseph by translating Agent Dorsey's questions from English to Spanish, and translating Joseph's responses from Spanish to English.

At approximately 8:23 p.m., Agent Dorsey started to interview Joseph. She asked him various background questions, including his name, address, and family information. Agent Dorsey attempted to telephone Joseph's parents, but was not able to reach them. However, Officer Douglas was able to make telephone contact with Joseph's uncle. Officer Douglas apprised the uncle of the situation and asked him to attempt to contact Joseph's parents to let them know that they could come to the port if they desired.

Agent Dorsey began the substantive portion of the interview by asking Joseph what he had been doing that day. Joseph purportedly said that his friend Rubio had asked him to borrow a car from someone named Roberto so that the two of them could go to the beach. Joseph allegedly said he had gone to a commercial plaza in Tijuana to pick up the car from Roberto.

At approximately 10:42 that evening, Joseph's parents arrived at the port. Agent Dorsey spoke with Joseph's parents out of Joseph's presence, and asked them if they knew what Joseph had been doing that day. Joseph's parents told Agent Dorsey that Rubio had driven a car to their house and picked up Joseph. After speaking with Joseph's parents privately, Agent Dorsey took them to see Joseph and allowed them to speak with him. In the presence of Agent Dorsey and Officer Douglas, Joseph's father asked Joseph what had happened that day. During a "heated discussion," Joseph stated that Rubio had gotten the car from his brother. Joseph also purportedly told his father that he and Rubio had previously discussed transporting drugs.

Throughout the interview Joseph was crying. He would not look the officers straight in the eye, and required an inhaler for his asthma.

B. The defense

Joseph's father, Alejandro D. (Alejandro), testified through an interpreter that when he arrived at the port on the night of the incident, Joseph told him that Rubio had invited him to go across the border to visit a friend and that Joseph decided to go along because he wanted to buy clothes. Joseph told his father that he did not know what was in the car. Alejandro denied that Joseph had mentioned transporting drugs. Joseph testified through an interpreter that he and Rubio were friends. However, Joseph said he had not known Rubio for a long time, and that they were not close friends. Joseph claimed he planned to go to the United States on the day in question to meet Rubio's friend, Yvette, and a friend of hers. Joseph said the group was going to go to the beach. Joseph claimed that no one mentioned transporting marijuana across the border and that Joseph "never thought there would be something in [the car]." Joseph said that Rubio picked him up at his house in a car. Rubio told Joseph that "his brother or his father or something like that" had loaned him the car. Joseph testified that he never went to pick up the car.

Joseph claimed that when he got into the car, he noticed that the seats were a little bit high, but he did not consider that fact significant. He denied that his hand was shaking during his initial encounter with Officer Castillo. Joseph testified that he never told Officer Douglas that Rubio had asked him to get the car from someone named Roberto, or that he had gone to a plaza in Tijuana to get the car. He also denied ever having said that he and Rubio had previously discussed transporting drugs.

III.

DISCUSSION

A. The trial court erred in admitting the translated out-of-court statements

because the People failed to establish the accuracy of the translation

Joseph claims the trial court committed reversible error in admitting translated out-of-court statements because the People failed to establish the accuracy of the translation. Joseph raises three arguments in support of this claim. First, Joseph argues that Agent Dorsey's testimony as to Joseph's purportedly translated statements constitutes inadmissible hearsay because the People failed to establish the admissibility of that testimony under Correa, supra, 27 Cal.4th 444. Second, Joseph raises the related contention that the admission of his purported out-of-court statements via Agent Dorsey's testimony violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and the analogous provision of the California Constitution (Cal. Const., art. I, § 15). Third, Joseph contends that the admission of Agent Dorsey's testimony "effectively circumvented" the rules of evidence pertaining to in court translations (Evid. Code, §§ 750, 751), violated the requirement that witnesses have personal knowledge regarding the matter to which they are testifying (Evid. Code, § 702), and violated the rule of evidence governing expert testimony (Evid. Code, § 720, subd. (a)). We agree with the first of these contentions, and thus do not address the other arguments.

1. Factual and procedural background

Agent Dorsey testified that Officer Douglas assisted in her interview of Joseph. Agent Dorsey explained that she spoke some Spanish, but that she "wanted to make sure I had somebody fluent doing the interview." The prosecutor asked Agent Dorsey whether Officer Douglas is a certified Spanish interpreter. Agent Dorsey replied in the affirmative. Defense counsel objected, stating that there was no proof that Officer Douglas was in fact a certified Spanish interpreter. Before the court could rule on the objection, the prosecutor asked Agent Dorsey again if she knew whether Officer Douglas was a certified Spanish interpreter. Agent Dorsey responded, "Well I know they have to be certified to do it for the San Diego Police Department and they work for us at the port. I don't have an actual, you know, anything proving that he is, but I know they have to be certified. They have to take a test."

Agent Dorsey stated that although Officer Douglas had never translated for her before, she had seen him at the port on previous occasions. At this point, the following exchange occurred:

"[Defense Counsel]: Your honor, I'm going to object to this line of questioning. Foundational, number 1. And need to hear from Mr. Douglas.

"The Court: Let me hear the question.

"[The Prosecutor]: Perhaps I can short-circuit it to where case [sic] of 27 Cal.4th 444 [Correra], which is a 2002 case, holds that the interpreter is essentially a language conduit, an agent for the speaker, and the court considers factors such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualification or language skills, [and whether] actions taken subsequent to conversations were consistent.

"In this case I'm attempting to ask those types of questions. I believe once we're done with the foundational questions, what we” the court will find sufficient foundation to allow the questioning without the actual translator.

"The Court: All right. I'll allow you to lay the foundation then, subject to the objection."

Agent Dorsey proceeded to explain that the San Diego Police Department provides officers to federal officials at the port through a program called "LIGBA." Agent Dorsey stated that she informed Officer Douglas regarding the nature of the case and explained to him that she needed help with the interview because Joseph spoke only Spanish. Agent Dorsey instructed Officer Douglas that she would "ask the question[s] and he [would] translate for me, so he [would not be] doing the interview on his own."

Agent Dorsey testified that Officer Douglas advised Joseph of his rights pursuant to Miranda v. Arizona (l966) 384 U.S. 436, and that in response, Joseph signed a form in Spanish stating that he wanted to make a statement. Agent Dorsey stated that when she asked Joseph questions such as his name, address, and telephone number, she received responses that were consistent with the questions asked.

Agent Dorsey testified that Joseph initially said that his friend, Rubio, had asked him to borrow a car and that he had gone to a commercial area in Tijuana to pick up the car from a person named Roberto, but that after Joseph met with his parents, he stated that Rubio had gotten the car from Rubio's brother. Dorsey also testified that when Joseph met with his parents, he told his father that he and Rubio had previously discussed transporting drugs.

During cross-examination, defense counsel asked Agent Dorsey whether what Joseph told his father about what had happened differed from the version he initially told authorities. Agent Dorsey responded, "Yes." The following exchange then occurred:

"[Defense counsel]: But you don't understand Spanish?

"[Agent Dorsey]: I do understand Spanish.

"[The prosecutor]: Objection. Misstates testimony.

"The Court: Let's find out about that.

"[Defense Counsel]: How well do you understand Spanish?

"The Court: Let me stop you. The testimony was that based on the information provided to her by the interpreter, that is how she understood what the father had said. She has not testified that she understood it in Spanish herself, at least that's my understanding of her testimony.

"[Defense Counsel]: Now, based on my objection”

"The Court: Well, she can rely on a reliable translator, and I understand that you're going to make a motion in that regard. But for the purposes of going forward right now, we're” I'm going to presume that the translator did an accurate translation."

At trial, Joseph repeatedly testified that Officer Douglas did not speak Spanish well and that Douglas did not fully understand Joseph's statements. For example, Joseph noted that "there were several things that I would tell [Officer Douglas] that he wouldn't understand and he [w]ould [stay] quiet and then all of the sudden he would ask me again, you know, "What's that again, what's that again?" Joseph specifically denied having told Officer Douglas that Rubio had asked him to get the car from someone named Roberto, or that he gone to a plaza to get the car. Joseph also denied having told his father that he and Rubio had previously discussed transporting drugs.

During closing argument, the prosecutor argued that "most telling as to the knowledge element of this is the minor's various stories about how he came to be in the car." The prosecutor claimed that it was "preposterous" for Joseph to claim that the only statement he had made to police was his denial as to his knowledge of the presence of marijuana in the car.

During closing argument, defense counsel pointed out to the court that Joseph had been resolute in his denial of knowledge of the presence of marijuana in the car. Counsel argued that the primary evidence against Joseph was caused by a "language problem," and noted that "Officer Douglas is not here."

At the conclusion of the hearing the court ruled as follows: "All right. The information provided by the officers is detailed and cannot possibly be just a matter of bad translations. The stories given by the defendant minor are not credible and are not to be believed, and the court does not put credibility in [his] testimony. I therefore . . . true find on count 1, violation of Health and Safety Code [section] 1136[0, subdivision] (a) and I true find on Health and Safety Code Section 11359."

2. Forfeiture

The People argue that Joseph has forfeited "his claim" because he did not object to the admission of Agent Dorsey's testimony on constitutional grounds. As noted above, Joseph raises three arguments in support of his contention that the trial court improperly admitted Agent Dorsey's testimony regarding Joseph's statements. We conclude that defense counsel adequately raised one of these contentions, and that we need not decide whether he preserved the other arguments.

Defense counsel objected to Agent Dorsey's testimony on the ground that the court " need[ed] to hear from Mr. Douglas." The prosecutor then offered to "short-circuit" the issue, by establishing the admissibility of Agent Dorsey's testimony pursuant to Correa, supra, 27 Cal.4th 444. The trial court allowed the prosecutor to ask Agent Dorsey foundational questions to establish the admissibility of Agent Dorsey's testimony "subject to the objection." Although defense counsel failed to formally renew his objection and obtain a ruling thereon, his cross-examination of Agent Dorsey, direct examination of Joseph, and closing argument all made clear that the defense objected to Agent Dorsey's testimony regarding the translated statements. Further, in light of the trial court's ruling that the information provided by Agent Dorsey "cannot possibly be just a matter of bad translations," any formal renewed objection would have been futile.

The trial court was thus fully apprised of the requirement that the People make an adequate showing under Correra in order for Agent Dorsey's testimony as to the purported translation of Joseph's statements to be admissible. Accordingly, we conclude that defense counsel adequately raised the claim that Agent Dorsey's testimony constituted inadmissible hearsay on the ground that the People failed to establish the admissibility of Agent Dorsey's testimony pursuant to Correra. Because we reverse on this basis, we need not decide whether defense counsel adequately raised the related contention that the admission of Agent Dorsey's testimony regarding Officer Douglas's translations of Joseph's statements violated Joseph's right to confront the witnesses against him under the federal and state constitutions, or whether Joseph forfeited the other objections he raises on appeal pursuant to Evidence Code sections 702, 720, subdivision (a), 750, and 751.

3. The law governing the admissibility of translated statements

In Correra, supra, 27 Cal.4th at page 448, the Supreme court considered whether the trial court properly allowed police officers to testify at a preliminary hearing regarding extrajudicial statements made by a Spanish-speaking victim and by another Spanish-speaking witness that were translated into English by two bystanders. The defendant claimed this testimony constituted inadmissible hearsay. (Ibid.) The Supreme Court rejected the defendant's argument that the translators' participation in that case interposed a "layer of hearsay," and held that "a generally unbiased and adequately skilled translator simply serves as a 'language conduit,' so that the translated statement is considered to be the statement of the original declarant, and not that of the translator." (Ibid.)

The Correra court explained the manner by which a trial court should determine whether to admit such translated statements:

"The language-conduit theory calls for a case-by-case determination whether, under the particular circumstances of the case, the translated statement fairly may be considered to be that of the original speaker. We agree with this theory and believe that the measured approach adopted by the Ninth Circuit Court of Appeals in U.S. v. Nazemian [(9th Cir. 1991)] 948 F.2d 522, 525-527 (Nazemian) should be adopted to ensure that only translated statements fairly attributable to a declarant will be admitted." (Correra, supra, 27 Cal.4th at p. 457.)

The Correra court noted that pursuant to Nazemian, a court should consider factors such as "which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated." (Correra, supra, 27 Cal.4th at p. 458, quoting Nazemian, supra, 948 F.2d at p. 527.) In applying these factors, the Correra court stated:

"[W]e observe that the translators were not 'supplied' by the police, but (apparently being unknown both to the declarants and the police officers, as well as to the defendant) just happened to be on the scene. Their neutrality is evident from the record, and there is no contrary suggestion of a motive to mislead or distort. The investigating officers observed the process of translation and did not report any apparent hesitation or difficulty in communicating, or any bias. In addition, evidence produced during the investigation tended to corroborate the substance of the translated statements. Moreover, the translators appeared and testified at the preliminary hearing with respect to the course of the translations, their neutrality, and their language skills, and ample evidence supports the conclusion that they were skilled in English and Spanish and were capable of providing accurate translations." (Correra, supra, 27 Cal.4th at pp. 466-467.)

The court in U.S. v. Martinez-Gaytan (5th Cir. 2000) 213 F.3d 890, 891 (Martinez-Gaytan), applied Nazemian in reversing the trial court's admission of purported translations of statements of the defendant. In Martinez-Gaytan, federal agents at a border crossing searched a car the defendant was driving as he attempted to enter the United States. (Ibid.) The agents found approximately 75 pounds of marijuana hidden in the vehicle's gas tank. (Ibid.) The defendant was detained and interviewed by a federal agent. One of the inspectors who worked at the border crossing acted as a translator. (Ibid.) The defendant purportedly said that he had picked up the vehicle in Mexico, that he knew the vehicle was "loaded," and that he was going to be paid $800 to drop the vehicle in the United States. (Ibid.) The inspector drafted a synopsis of defendant's alleged answers in English, but the defendant refused to sign it.^[3]

At a pretrial suppression hearing before a magistrate judge, the defendant objected to all testimony by the agent concerning what the defendant had allegedly said in Spanish during the interview, on the ground that the testimony was hearsay. (Martinez-Gaytan, supra, 213 F.3d at p. 891.) The inspector who had translated during the interview of the defendant was not called as a witness at the hearing. (Ibid.) The magistrate judge denied the motion to suppress the agent's testimony, and the district court affirmed that ruling. (Ibid.)

On appeal, the defendant claimed that the inspector's failure to testify at the suppression hearing rendered the agent's statements about the confession unreliable hearsay, and that the admission of those statements violated his rights under the Confrontation Clause. (Martinez-Gaytan, supra, 213 F.3d at p. 892.) Applying the four Nazemian factors discussed in Correra, the Martinez-Gaytan court concluded:

"Here, the Government supplied the interpreter. Although we presume no motive to mislead or distort, we note that [the inspector's] absence from the hearing and a lack of other evidence about him left the district court unable to determine [the inspector's] Spanish fluency. Moreover, Appellant refused to sign any confession despite having ostensibly just confessed to [the inspector]. Thus, given the current record, the first, third, and fourth Nazemian factors all caution against treating [the inspector] as a language conduit." (Martinez-Gaytan, supra, 213 F.3d at pp. 892-893.)

In vacating the district court's order denying the suppression motion, the Martinez-Gaytan held, "[T]he district court . . . needs to reconsider its suppression ruling with the benefit of a fuller record that contains testimony from [the inspector]." (Martinez-Gaytan, supra, 213 F.3d at p. 893.)

In Correra, the California Supreme Court stated that it agreed with the Martinez-Gaytan court's holding that "'where the particular facts of a case cast significant doubt upon the accuracy of a translated [statement], the translator or a witness who heard and understood the untranslated [statement] must be available for testimony and cross-examination at the . . . hearing before the [statement] can be admitted.' " (Correa, supra, 27 Cal.4th at p. 459, quoting Martinez-Gaytan, supra, 213 F.3d at p. 891; accord Nazemian, supra, 948 F.2d at p. 527, fn. 7 ["Where translation is needed in the course of an open investigation or interrogation following arrest, there is no reason why the interview cannot be recorded and/or the translation cannot be conducted by a certified translator who can be available to testify at trial"].)

4. The People failed to establish the admissibility of the translated

statements

In this case, it is clear that the People failed to establish the admissibility of the translated statements under the factors set forth in Correra. First, as in Martinez-Gaytan the government supplied the interpreter, Officer Douglas. Second, although we do not presume Officer Douglas had any motive to mislead or distort, he was not a neutral bystander, as were the witnesses in Correra. Third, and most importantly, other than Agent Dorsey's testimony that police officers working as interpreters for the San Diego Police Department in general "have to be certified" and "have to take a test," there is no evidence in the record as to Officer Douglas's abilities or his qualifications as an interpreter.

Finally, beyond establishing that Officer Douglas apparently successfully translated Agent Dorsey's request for telephone numbers of family members and Joseph's responses thereto, the record lacks meaningful evidence of "actions taken subsequent to the conversation [that] were consistent with the statements as translated." (Correra, supra, 27 Cal.4th at p. 458, quoting Nazemian, supra, 948 F.2d at p. 527; compare with Nazemian, supra, 948 F.2d at p. 528 [finding interpreter likely to be competent where interpreter "continued in that role over a prolonged period and multiple meetings," the parties had encountered no communication difficulties during that time, and defendant did not point to any specific instances of mistranslation].)

In view of the lack of evidence establishing the reliability of the translation using the Correra factors, Joseph's testimony regarding Officer Douglas's poor translating skills, and Joseph's specific denials of having made statements that Agent Dorsey attributed to him, there was "significant doubt" as to the accuracy of Officer Douglas's translation. (Correa, supra, 27 Cal.4th at p. 459.) Therefore, pursuant to Correra, either Officer Douglas or a witness who heard and understood Joseph's untranslated statements was required to have been available for testimony and cross-examination. (Ibid.)

We conclude that the trial court erred in admitting Agent Dorsey's testimony regarding the translated statements because the People failed to establish the admissibility of that testimony under Correa, supra, 27 Cal.4th 444.

5. Prejudice

Because the admissibility of the translated statements was not adequately established under Correra, their admission in evidence constitutes improper admission of hearsay testimony. (Correa, supra, 27 Cal.4th at p. 463.) Since the error is one of state evidentiary law, we apply the standard of prejudice articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (See e.g., People v. Vasquez (2006) 39 Cal.4th 47, 66.)^[4] Pursuant to that standard, we must determine "whether, in light of the entire record, ' "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' [Citations.]" (People v. Vasquez, supra, 39 Cal.4th at p. 66.)

As we discuss in greater detail in part III.B, post, putting aside Joseph's statements, the evidence the People presented as to Joseph's knowledge that there was marijuana in the car was far from overwhelming. Further, the improperly admitted testimony regarding purported inconsistencies in Joseph's statements as to how he and Rubio obtained the car, and Joseph's alleged statement regarding his having previously discussed with Rubio transporting drugs, were the strongest evidence in support of a finding that Joseph knew there was marijuana secreted in the car. In fact, during closing argument, the prosecutor referred to the improperly admitted statements as the "most telling" evidence regarding Joseph's knowledge that there was marijuana in the car.

The trial court's ruling at the conclusion of the adjudication hearing demonstrated the importance the court placed on the disputed statements. The court asserted that the purported inconsistencies in Joseph's statements could not "possibly be just a matter of bad translations." The court stated that "[t]he stories given by the defendant minor are not credible," and that "therefore" the court found the allegations in the petition true.

We conclude that it is reasonably probable that a result more favorable to Joseph would have been reached in the absence of the trial court's error. The error was thus prejudicial and requires reversal of the judgment.^[5]

B. There is sufficient evidence that Joseph knew there was marijuana in the car

Joseph claims the People failed to present sufficient evidence that he knew there was marijuana hidden in the car to sustain the true finding.

The law regarding appellate review of claims challenging the sufficiency of the evidence in the juvenile context is the same as that governing review of sufficiency claims generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence” that is, evidence which is reasonable, credible, and of solid value” such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The trial court found that Joseph unlawfully transported into the state more than 28.5 grams of marijuana (§ 11360, subd. (a)), and that he unlawfully possessed marijuana for sale (§ 11359). Section 11360, subdivision (a) provides, "Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years." Section 11359, provides, "Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison."

As the People acknowledge, both section 11360, subdivision (a) and section 11359 require proof that the defendant had knowledge of the presence of the marijuana. (See People v. Rogers (1971) 5 Cal.3d 129, 133 [stating predecessor statute to section 11360 had knowledge requirement]; People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746 (Meza) ["possession of a controlled substance for sale requires proof the defendant possessed the contraband . . . with knowledge . . . of . . . its presence"].) Both crimes "can be established by circumstantial evidence and any reasonable inferences drawn from that evidence. [Citations.]" (Meza, supra, 38 Cal.App.4th at pp. 1745-1746.)

In People v. Redrick (1961) 55 Cal.2d 282, 283-284 (Redrick), the Supreme Court considered whether there was sufficient evidence of the defendant's knowledge of the presence of heroin to support his conviction for possessing heroin. The defendant, Redrick, lived in and managed a rooming house owned by a man named Henry Smith. (Id. at p. 284.) There was a padlocked storeroom down the hall from Redrick's room. (Ibid.) Smith had the only key to storeroom, but he gave the key to Redrick on occasion. (Ibid.) At other times, Smith hung the key in his shop. (Ibid.) A few days before September 28, Redrick told Smith that he had the key. (Ibid.)

On the morning of September 28, police officers, who suspected that Redrick had been selling narcotics, asked him if they could search the storeroom. (Redrick, supra, 55 Cal.2d at pp. 284-285.) He denied that he had the key. (Id. at p. 285.) With Smith's permission, police forced open the lock and found heroin concealed in the storeroom. (Ibid.) Shortly thereafter, Redrick was placed under arrest. (Ibid.) After his arrest, while speaking with a police officer, Redrick denied any knowledge of the heroin. (Ibid.) He also stated that approximately three weeks earlier, he had had the key to the storeroom, but that the key was not currently in possession. (Ibid.) However, Redrick admitted to the officer that he had been "fooling with narcotics again," and that he had purchased heroin from a person named Blackburn. (Id. at p. 285.)

On appeal, Redrick argued that the heroin could have been concealed in the storeroom before he became manager, that the key could have been taken by anyone, that the padlock itself was a simple one that was easily opened, and that Smith had a reason to shift the blame to someone else, since he was the owner of the premises. (Redrick, supra, 55 Cal.2d at p. 289.) In concluding that there was sufficient evidence of Redrick's knowledge of heroin in the storeroom to support his conviction, the Supreme Court relied on Redrick's admission to the police officer that he had been "fooling with narcotics again," his contradictory statements to Smith and police officers concerning his possession of the key to the storeroom, and his failure to explain the key's disappearance. (Id. at pp. 288-289.)

In this case, Joseph's statement to his father that he and Rubio had previously discussed transporting drugs was similar to the defendant's statement in Redrick that he had been "fooling with narcotics again." (Redrick, supra, 55 Cal.2d at p. 288.) Similarly, Joseph's inconsistent statements regarding how he and Rubio had come to possess a car in which large amounts of marijuana was discovered are analogous to the Redrick defendant's inconsistent statements regarding his possession of the key to the storeroom.^[6] (Id. at pp. 288-289.)

In addition to this evidence, the car in which Joseph was traveling had been modified in ways that may have alerted a passenger to the possibility that the car was being used to smuggle contraband. Joseph acknowledged that he noticed that the seat in which he was sitting felt "strange" because "it was a bit high." Finally, Officer Castillo's testimony that Joseph's hand was trembling when he initially presented his identification also supports the inference that Joseph knew there was marijuana in the car.

We conclude that there was sufficient evidence of Joseph's knowledge of the presence of marijuana in the car to support a true finding.

IV.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with directions to hold a new adjudication hearing.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

^[1] Unless otherwise specified, all subsequent statutory references are to the Health and Safety Code.

^[2] Officer Douglas's first name does not appear in the record.

^[3] Commenting on this police procedure, the Martinez-Gaytan court observed, "Obviously, the sensible course of action in this case would have been for [the inspector] to present Appellant with a confession written in Spanish, which Appellant presumably would have understood, and which could have been translated at trial if necessary." (Martinez-Gaytan, supra, 213 F.3d at p. 891, fn 1.)

^[4] We emphasize here that we have not considered Joseph's constitutional claims on appeal. If we were to do so and to find constitutional error, we would apply the standard of prejudice established in Chapman v. California (1967) 386 U.S. 18.

^[5] In light of our reversal, we need not consider Joseph's alternative claim that he received ineffective assistance of counsel.

^[6] In reviewing Joseph's sufficiency claim, we consider the statements Joseph purportedly made to Officer Douglas. (See State v. Carey (1994) 228 Conn. 487, 493-494 [in reviewing sufficiency claim, appellate tribunal considers all evidence heard by fact finder, including any evidence that appellate tribunal ultimately determines was improperly admitted].) In State v. Wood (Mo. 1980) 596 S.W.2d 394, 398-399 (Wood), the Missouri Supreme Court explained the reason for such a rule: "When the trial court erroneously admits evidence resulting in reversal, as in the instant case, the State should not be precluded from retrial even though when such evidence is discounted there may be evidentiary insufficiency. The prosecution in proving its case is entitled to rely upon the rulings of the court and proceed accordingly. If the evidence offered by the State is received after challenge and is legally sufficient to establish the guilt of the accused, the State is not obligated to go further and adduce additional evidence that would be, for example, cumulative. Were it otherwise, the State, to be secure, would have to assume every ruling by the trial court on the evidence to be erroneous and marshall and offer every bit of relevant and competent evidence. The practical consequences of this would adversely affect the administration of justice, if for no other reason, by the time which would be required for preparation and trial of every case." The reasoning of the Wood court is particularly persuasive in this case since the People may ultimately be able to establish the admissibility of Joseph's statements on remand.