Filed 7/13/22 P. v. Blue CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden and Joseph R. Distaso, Judges.

Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

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Willie Charles Blue, Jr. (defendant), was convicted by jury of possessing methamphetamine for purposes of sale. Defendant now attempts to challenge a magistrate’s denial of his motion to suppress evidence under Penal Code section 1538.5. (All undesignated statutory references are to the Penal Code.) Defendant also claims the trial court erroneously allowed “profile evidence” to be admitted through expert witness testimony.

Defendant’s motion to suppress was denied by the committing magistrate on the date of the preliminary hearing. Case law holds that to preserve the issue for appellate review, the magistrate’s ruling must first be challenged “at a special hearing relating to the validity of the search or seizure” (§ 1538.5, subd. (i)) or by filing a motion to dismiss pursuant to section 995. Defendant pursued neither avenue of relief, which is fatal to his first claim. The remaining claim is based on three areas of testimony, but most of defendant’s arguments are forfeited because of his failure to object at trial. We conclude the one arguable instance of improper testimony was nonprejudicial. The judgment will therefore be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 2019, a Modesto police officer saw defendant using a city-owned electrical outlet to charge a personal electronic device. Believing this to constitute theft of public utilities or a similar crime, the officer approached defendant and told him “that the outlet that he was using was intended for City devices … and that he wasn’t supposed to be using it.” While conversing with defendant, the officer “asked him for his identifying information, and [defendant advised] that he was on probation.” The officer performed a records check and confirmed defendant was “on an active grant of PRCS,” i.e., postrelease community supervision. Based on defendant’s status, the officer “proceeded with a search of a bag that he had with him.”[1]

Defendant was found in possession of a pipe and approximately one ounce of methamphetamine. His backpack contained a bag of methamphetamine with a total packaged weight of approximately 20 grams, as well as a pill bottle containing 15 smaller bags of methamphetamine with a collective packaged weight of approximately 7 grams.[2] Defendant also possessed what the arresting officer described as additional “empty baggies.”

On June 11, 2019, the Stanislaus County District Attorney filed a criminal complaint charging defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378). A prior strike was alleged for purposes of the “Three Strikes” law. (§§ 667, subds. (b)–(i), 1170.12.) Defendant was further alleged to have served two prior prison terms within the meaning of section 667.5, former subdivision (b).

In August 2019, defendant moved under section 1538.5 to suppress all evidence derived from the search of his person and belongings. Defendant claimed the arresting officer had illegally detained him prior to discovering his PRCS status.[3] On September 5, 2019, at the conclusion of the preliminary hearing, the motion was denied. The magistrate found the officer’s contact with defendant prior to the search was a consensual encounter and not an investigatory detention. Defendant was then held to answer as charged in the complaint.

On September 19, 2019, defendant was charged by information with the same offense and allegations pleaded in the complaint. The prior prison term allegations were subsequently dismissed in light of Senate Bill No. 136 (2019–2020 Reg. Sess.), which was approved by the Governor in October 2019. (Stats. 2019, ch. 590, § 1.) The case went to trial the following month.

At trial, the arresting officer testified defendant initially “acted as if he didn’t know what methamphetamine was.” Defendant then admitted the substance in his backpack was methamphetamine but “was sort of defensive and explained that he does not sell the methamphetamine.” The jury was shown an excerpt from “body-camera footage” captured at the time of arrest wherein defendant could be heard saying, “I give it away, but I don’t sell it.” He could also be heard saying, “I had a nice chunk of it” and explaining he had recently “been stingy with it” because his supply was dwindling.

According to the officer, defendant claimed to have “found” the methamphetamine he was carrying. He reportedly “estimated that he [originally] had about three times more than what [the officer] found him with,” i.e., at least 60 grams, which had sustained his habit of smoking “once every two or three days” in intervals of “two to three hits approximately every seven hours.” Defendant further claimed to have apportioned part of the supply into the “15 smaller baggies” to regulate his consumption, as he was hoping it would last him several more months.

Based on approximately 200 contacts with individuals in possession of methamphetamine, the arresting officer opined that “a personal-use amount” for a “typical user” is around one-tenth of a gram. In other words, 0.1 grams is sufficient to get most users high “during a sitting, so to speak.” A second Modesto police officer, testifying as a narcotics expert, agreed that a single “dose” of methamphetamine is approximately 0.1 grams.

The expert further testified: “t’s common for a meth user to use two or three times a day. So that would be two or three doses in a day, which would be .2 or .3 grams a day. And that’s observed by the Journal of Public Medicine. That’s not an arbitrary number that the police have.” The expert thus concluded the amount of methamphetamine in defendant’s possession was “a little over two months’ supply,” and in his experience it is “not common for a drug user to carry two months’ supply on them at one time.” According to the expert, most users rarely possess more than 3.5 grams for personal consumption—an amount commonly referred to as an “eight ball” (slang for one-eighth of an ounce). But “[i]t’s much more common for smaller quantities to be purchased for just the user.… [¶] … [¶] … Something like one gram, half a gram and down.”

“Section 1538.5 governs motions to suppress evidence obtained as a result of a search or seizure.” ([i]People v. Williams (1999) 20 Cal.4th 119, 127.) “As done here, section 1538.5, subdivision (f)(1) permits a motion to suppress evidence obtained by a search to be heard at the preliminary hearing.” (People v. Hawkins (2012) 211 Cal.App.4th 194, 199.) If the motion is denied, review of the ruling on direct appeal is constrained by section 1538.5, subdivision (m), which requires “that at some stage of the proceedings prior to conviction [the defendant] has moved for the return of property or the suppression of the evidence.” This language “has been interpreted to require the defendant to seek review of the magistrate’s decision in a special hearing in the superior court or to raise the issue in a [section] 995 motion.” (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2022) Search and Seizure Motions, § 16.35, p. 440, citing People v. Lilienthal (1978) 22 Cal.3d 891 and People v. Burns (1993) 20 Cal.App.4th 1266; accord, Hawkins, at pp. 199–200.) Defendant took neither course of action.

As comprehensively explained in People v. Richardson (2007) 156 Cal.App.4th 574, the so-called “Lilienthal rule” requires defendants to raise a search and seizure issue “before a superior court judge acting as a superior court judge to preserve that issue for appellate review.” (Id. at p. 591; see People v. Lilienthal, supra, 22 Cal.3d at p. 896 [“it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention”].) “[T]he Lilienthal rule continues to apply even in the wake of trial court unification because that rule never rested on the distinction between the municipal court and the superior court; rather, it rests on the distinction between magistrates and superior court judges—a distinction that remains valid even following unification.” (Richardson, at p. 589.) “‘Even though the voters and Legislature have made it possible for judges to serve in either role, the roles are still distinct and take place at different levels—that is, the magistrate makes determinations reviewable by the trial judge. When we undertake review of a case, we are reviewing the actions of the trial judge who had the ability to review the findings of the magistrate.’” (Id. at p. 586, quoting People v. Hart (1999) 74 Cal.App.4th 479, 485–486.)

To summarize, when a section 1538.5 motion “is made before a magistrate in conjunction with a preliminary hearing, as in this case, the magistrate tries the facts, resolving credibility issues and conflicts in the evidence, weighing the evidence, and drawing appropriate inferences. [Citations.] If the magistrate denies the motion and holds the defendant to answer, the defendant must, as a prerequisite to appellate review, renew his challenge before the trial court by motion to dismiss under section 995 or in a special hearing [pursuant to section 1538.5, subdivision (i)].” (People v. Romeo (2015) 240 Cal.App.4th 931, 941, italics added.) The rule applies even if the same judge presided over both the preliminary hearing and trial. (People v. Richardson, supra, 156 Cal.App.4th at p. 594.) In this case, the trial judge was not the same judicial officer who denied defendant’s motion to suppress.

In his briefing, defendant cites to page 64 of the Reporters Transcript for the proposition that he “reraised his objection to the admission of the evidence” at the time of trial, “which was noted and denied.” The People similarly contend, based on the same record citation, that defense counsel “renewed the [suppression] motion at trial, which the trial court denied again.” Both statements are inaccurate.

The parties’ record citation is to an exchange between the trial court and defense counsel on the first day of trial, during a hearing on motions in limine. The discussion concerned defendant’s motion to “exclude any mention of [his] Post Release Community Supervision status.” This is what was said:

“[Trial Court]: Okay. Final one is no probation status. I’m assuming, even though we’re not a 1538.5, and that’s not an issue, sometimes defense likes to, in the trial, bring up appropriateness or inappropriateness of the officers’ conduct, but I’m assuming that’s not going to be an issue here in searching or contacting.

“[Defense counsel]: We litigated this.

“[Trial Court]: What?

“[Defense counsel]: We litigated this. There was a 1538, and it was denied.

“[Trial Court]: Oh, okay.

“[Defense counsel]: So I’ll continue to make my objection to the—to that decision, but for purposes of the trial.

“[Trial Court]: Yeah, that’s all right—noted, I mean, and maintained, but—so, basically, it’s not relevant, in my opinion, at this point, unless you start questioning the appropriateness of the officers’ conduct, but that’s not really relevant because it’s already been litigated and denied.

“[Defense counsel]: And I don’t intend to do so. I mean, if the People want to limit their questions to after a lawful search, that’s fine with me.

“[Prosecutor]: That’s literally where I would start, so that’s fine.”

Section 1538.5, subdivision (i), permits defendants to renew a previously denied suppression motion “at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time.” (Italics added.) Since “no provision is made for renewing a motion to suppress at trial,” defendant’s perfunctory “objection” to the magistrate’s ruling was meaningless. (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 609; accord, People v. Ramos (1997) 15 Cal.4th 1133, 1163; see People v. McKinnon (2011) 52 Cal.4th 610, 684, fn. 45 [“A statutory suppression motion must be timely brought, and, once denied, can only be renewed under specified circumstances”].)

Furthermore, it is apparent the trial judge was unfamiliar with the magistrate’s findings and conclusions. In any event, the trial judge did not analyze or rule upon the legality of the arresting officer’s initial encounter with defendant. Therefore, the issue of whether defendant’s motion to suppress was erroneously denied has not been preserved for appellate review.

2. Challenges to Expert Testimony

Defendant claims the trial court erred “by permitting extensive profile evidence” during trial. His arguments concern three areas of expert testimony, but nearly all the contentions have been forfeited for lack of objections. As for the one arguably preserved issue, we conclude the alleged error was harmless.

Applicable Law

Expert witness testimony is limited by statute to matters “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) There are “circumstances in which a police officer’s expert testimony on the modus operandi involved in certain crimes may assist the jury to determine a factual issue such as the defendant’s intent.” (People v. Torres (1995) 33 Cal.App.4th 37, 47, fn. 3.) Such testimony should not veer into the realm of “profile testimony,” which happens when the expert “compares the behavior of the defendant to [a] pattern or profile and concludes the defendant fits the profile.” (People v. Prince (2007) 40 Cal.4th 1179, 1226.) “A profile ordinarily constitutes a set of circumstances—some innocuous—characteristic of certain crimes or criminals, said to comprise a typical pattern of behavior.” (Ibid.)

“‘Profile evidence,’ however, is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative.” (People v. Smith (2005) 35 Cal.4th 334, 357, disapproved on other grounds as stated in People v. Beck and Cruz (2019) 8 Cal.5th 548, 670; accord, People v. Prince, supra, 40 Cal.4th at p. 1226.) To preserve a claim that evidence was erroneously admitted at trial, a defendant must assert a timely and particularized objection. (Evid. Code, § 353, subd. (a).)

“What is important is the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial.” (People v. Partida (2005) 37 Cal.4th 428, 435, italics added.)

If the issue has been preserved for appeal, a trial court’s ruling on the admissibility of expert testimony is reviewed for abuse of discretion. (People v. McDowell (2012) 54 Cal.4th 395, 426.)

“An appellate court cannot reverse a judgment based on the erroneous admission of evidence unless the admitted evidence ‘resulted in a miscarriage of justice.’ (Evid. Code, § 353, subd. (b).) In a criminal case, a miscarriage of justice can only be found when the reviewing court determines it is reasonably probable that a result more favorable to the defendant would have been reached had the trial court excluded the erroneously admitted evidence.” (People v. Lapenias (2021) 67 Cal.App.5th 162, 170, fn. omitted.)

A. Issue #1

On direct examination, the People’s narcotics expert was asked, “Are you familiar with the term user/dealer?” He responded affirmatively and went on to explain: “So user/dealer is someone who’s not concerned with drug dealing as a moneymaking enterprise. They are only concerned with making enough for selling drugs to supply their own habit. So they are not trying to be Pablo Escobar and make millions. They’re only trying to make maybe 20 or $40 a day so that they can afford their own methamphetamine habit.” Defendant did not object to this testimony.

Next, the prosecutor asked, “Are user/dealers an important link in the chain by which methamphetamine is distributed in the county?” The expert replied, “They are. I would call them the bottom of the chain, yeah.” Again, no objections.

The next question produced a nonresponsive answer wherein the expert said most methamphetamine in the United States originates from Mexico. Defense counsel objected (“Nonresponsive”) and the trial court, while not expressly sustaining the objection, agreed the answer was nonresponsive. The prosecutor chose to abandon the question, and the examination continued as follows:

“[Prosecutor]: Q. So how about this, how does methamphetamine get into the county?

“[Witness:] A. It is—

“[Defense counsel]: Objection. Relevance. What does that have to do with my client’s case?

“[Trial Court]: [Counsel], seems like it’s getting a little—a little not relevant.

“[Prosecutor]: So it’s about the network of distribution. That’s why it’s important.

“[Trial Court]: I’ll allow a little bit, but I don’t think we need to go into, you know, a—a history of the methamphetamine importation to the United States.

“[Prosecutor]: Understood.

“[Trial Court]: All right. Go ahead.

“[Prosecutor]: Q. Briefly, how does methamphetamine get into the county?

“[Witness:] A. It’s brought into the county from, you know, elsewhere in California, and then it’s broken down at each link of the chain. The methamphetamine is broken down in quality so that each successive dealer can make more money on it. By the time it gets to the user/dealer, it’s broken down. It’s very low quality, and it’s usually a very small amount.”

Defense counsel did not object to the expert’s response. No further objections were made when the expert went on to opine the substance found in defendant’s possession appeared “to be a very low-quality methamphetamine.” The line of questioning concluded with the expert reiterating that “the primary purpose of being a user/dealer is to be able to fund your own addiction.”

On appeal, defendant complains about the admission of testimony “regarding ‘user/dealers’ and their position in the network of drug distribution in California, where there was no evidence [defendant] was part of any drug distribution network.” But that was not the objection he made at trial. The challenged question was, “[H]ow does methamphetamine get into the county?” The witness’s response began, “It’s brought into the county from, you know, elsewhere in California ….” Everything after that statement was nonresponsive. An objection was warranted on that ground, and the defense could have moved to strike the nonresponsive portion. (See People v. Abel (2012) 53 Cal.4th 891, 924 [“A defendant who fails to make a timely objection or motion to strike evidence may not later claim that the admission of the evidence was error”]; People v. Nakis (1920) 184 Cal. 105, 116 [“Where the error is such that its effect would be obviated by an instruction to the jury to disregard it and no such aid is invoked, the error cannot be complained of on appeal”].)

“‘Relevant evidence is defined in Evidence Code section 210 as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’” (People v. Bivert (2011) 52 Cal.4th 96, 116–117.) Assuming the fact of how methamphetamine reaches Stanislaus County had no relevance to the case, the expert’s response (“It’s brought into the county from, you know, elsewhere in California”) was plainly harmless under any standard of prejudice.

The “user/dealer” testimony was relevant. The amount of methamphetamine in defendant’s possession, the testimony regarding its low quality, defendant’s admission to being a habitual, near daily user, and the testimony that some methamphetamine addicts engage in relatively small scale dealing to fund their addiction all tended to prove defendant’s drug possession was for purposes of sale. Defendant’s real argument on appeal is the evidence was more prejudicial than probative, but at trial he failed to object to the evidence as irrelevant or improper under Evidence Code section 352. Consequently, the issue was forfeited. (Evid. Code, § 353, subd. (a); People v. Partida, supra, 37 Cal.4th at p. 435.)

B. Issue #2

The following exchange occurred early in the narcotics expert’s testimony, amid questions intended to establish his expertise:

“[Prosecutor:] Q. Are you familiar with the areas of the city of Modesto where there is more likely to be the sale of narcotics?

“[Defense counsel]: Objection. Relevance.

“[Trial Court]: No, that’s overruled. [¶] You can answer.

“[Witness]: Yes, very familiar.”

The quoted exchange appears at page 153 of the Reporters Transcript (page 153). A considerable time later, at page 162 of the Reporters Transcript (page 162), the witness was asked, “Where are some areas in Modesto generally where you would expect to see [narcotics transactions]?” The expert answered, “Well, I’ll start with one that’s the most close by. Some of you may be familiar with the transit center where all the buses go. Just across the way there, the Salvation Army is there. There’s a lot of transients that hang out in that area. [¶] As some of you know, it’s very common for transients to have problems with addiction. So the dealers know that, and they’ll hang out in those areas where they know they have a large customer base around them.”

Defendant made no objections to the questions and answers on page 162, including a subsequent exchange indicating he was arrested “[o]ne block away” from the transit center. Defendant now claims (1) the testimony on page 162 constituted inadmissible profile evidence and (2) the issue was preserved for appeal by the objection made on page 153. We conclude the argument was forfeited.

“The trial court has broad discretion in deciding whether to admit or exclude expert testimony.” (People v. McDowell, supra, 54 Cal.4th at p. 426.) The question objected to by defense counsel (“Are you familiar with the areas of the city of Modesto where there is more likely to be the sale of narcotics?”) was at least potentially relevant for foundational purposes vis-à-vis the expert’s qualifications. Since defendant was charged with possession for sale, the question was also potentially relevant if, as later indicated, the area where he was arrested was known for drug trafficking. (See Evid. Code, § 210 [relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].) We thus conclude the overruling of defendant’s objection was not an abuse of discretion.

We further conclude defendant’s objection at page 153 did not extend to the more specific questioning on page 162. “[A] claim of the erroneous admission of evidence is preserved for appeal if [a] timely objection to admission of the evidence alerted the trial court to the nature of the anticipated evidence and the basis on which exclusion was sought and afforded the opposing party an opportunity to establish its admissibility.” (People v. Doolin (2009) 45 Cal.4th 390, 438, citing People v. Holt (1997) 15 Cal.4th 619, 666–667.) It follows that a “general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.” (People v. Marks (2003) 31 Cal.4th 197, 228; see People v. Lawrence (1904) 143 Cal. 148, 156 [a claim of error cannot be predicated “merely upon a question which, upon its face, did not show that the testimony to be given in response to it would necessarily be inadmissible”].)

C. Issue #3

Lastly, defendant assigns error to the following testimony by the narcotics expert: “Almost every single time when someone is in possession for sales, they’ll say that it’s just for their own personal use because they know if they admit that it’s for sales, that it’s going to be a much higher charge. So they’ll say, you know: This is all for me. I’m stocking up for the winter, basically.” In response to a followup question, the expert said, “[S]ometimes their statements aren’t making sense. They have no logical reason to—for holding on to that much.”

Defendant concedes his failure to object to the quoted testimony. However, in purported reliance upon People v. Williams (1998) 17 Cal.4th 148 at page 161, footnote 6, he “invites” this court to “reach the admissibility of this evidence in its discretion.” Defendant misreads the cited authority. “An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party.” (Ibid.) However, “it is in fact barred” from doing so “when the issue involves the admission (Evid. Code, § 353) or exclusion (id., § 354) of evidence.” (Williams, at p. 161, fn. 6, italics added; accord, People v. Myles (2021) 69 Cal.App.5th 688, 697.) Therefore, defendant’s argument fails.

DISPOSITION

The judgment is affirmed.

*Before Peña, Acting P. J., Smith, J. and Snauffer, J.

[1]All quotations in this paragraph are taken from the officer’s preliminary hearing testimony.

[2]The exact amount seized was never established. At trial, the criminalist who positively identified the substance as methamphetamine testified the unpackaged weight of the largest bag was 18.013 grams. She weighed only two of the smaller bags, which had unpackaged weights of 0.126 grams and 0.0993 grams. The People generally conceded the total unpackaged weight of the methamphetamine in defendant’s possession may have been approximately 19 or 20 grams.

[3]Pursuant to section 3465, “Every person placed on postrelease community supervision, and his or her residence and possessions, shall be subject to search or seizure at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer.”