P. v. Johannessen

Filed 3/27/07 P. v. Johannessen CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant and codefendant Sandra Prescott of possession of methamphetamine for sale (Health & Saf. Code, 11378) and found true the allegation that defendant had a strike prior conviction (Pen. Code, 667, subds. (b)-(i); 1170.12). Defendant was sentenced to 32 months in prison, the low term doubled. On appeal, defendant contends (1) it was error to deny his motion to suppress; (2) there was insufficient evidence of possession; (3) the trial court failed to respond adequately to the jurys questions about possession; (4) the prosecutor committed misconduct in closing argument; (5) the trial court erred in denying the motion to strike the prior; and (6) there was insufficient evidence of the strike prior because the prosecution improperly used evidence that was not part of the record of conviction. We affirm.

FACTS

On May 11, 2005, narcotics detectives conducted a search of 8083 Willow Glen Court. Detective Weinstock went upstairs and knocked loudly on a locked bedroom door. When he did not receive a response for the door to be opened he forced entry into the bedroom. In this master bedroom the officers found money under the mattress. There was $300 in large bills in a pink pouch. Next to the pouch were 38 $1 bills. A black pouch fastened by Velcro under the headboard of the bed contained 21.9 grams of methamphetamine and two empty Ziploc baggies.

On the nightstand to the north of the bed was DMV paperwork in Sandra Prescotts name, bras and slipper socks. In the drawers on the north side of the bed were 20 letters to Prescott from defendant. In the southeast corner of the room, in a shoe box under a chest, were about 50 letters to defendant from Prescott, addressed to an address other than Willow Glen. A bottle of Viagra in defendants name was on the dresser and a prescription inhaler in his name on the nightstand. There were bills addressed to other persons at that address.

In an office upstairs Prescotts drivers license was on the desk. A digital scale, of the type used to measure drugs, was in a wicker basket. On the desk was an index card with names and amounts; it could have been a pay/owe sheet. There was also a bong on the desk.

There was male and female clothing in the master bedroom closet. Detectives also found a pair of size 12 tennis shoes and jeans in three different sizes.

Prescott and defendant drove up to the residence while the search was being conducted. The keys to the house were in Prescotts purse, as well as a key to the locked bedroom and a cell phone. Prescott had $83 in her purse.

Detective Weinstock testified at trial that in his opinion the methamphetamine was possessed for sale. His opinion was based primarily on the quantity; there were 420-440 dosages. The presence of the money, the scale, the small baggies, and the absence of drug paraphernalia made him absolutely sure the drugs were possessed for sale.

The parties stipulated that Prescott owned the residence and that defendant resided there from March 21, 2005, until May 11, 2005.

Defendant argued he was not guilty; there was no evidence he knew about the methamphetamine or had control over it.

DISCUSSION

I. Motion to Suppress

Prior to trial, defendant moved to suppress the evidence found in the search (Pen. Code, 1538.5) because the search was conducted without a warrant. Two detectives testified at the hearing on the motion. Detective Eubanks testified the officers were conducting a probation search of Sandra Prescott. He had personal knowledge of her probation status because he was involved in a 2003 case involving her and the same address. He also checked her probation status and address on a computer at his desk.

At the residence Eubanks knocked and there was no answer. He entered and encountered Jeff Leffingwell, who said Prescott was at work. Another detective asked whose bedroom was upstairs and Leffingwell replied it belonged to John and Sandy. The bedroom was searched and 21.9 grams of methamphetamine and $338 were found.

Detective Dan Donelli assisted in the search. He entered the study to do a protective sweep. In plain view on the desk he found Prescotts drivers license and a pay/owe sheet. Under the desk was a gram scale.

In 2003, defendant and Prescott had been charged with possession of methamphetamine for sale. After their motions to suppress were denied, they pled no contest. On appeal the convictions were reversed because this court found the protective sweep of the residence was unlawful. The decision reversing defendants conviction issued May 23, 2005, about two weeks after the search in this case. (People v. Johannessen (May 23, 2005, C046564) [nonpub. opn.].) Prescotts conviction was reversed five months later. (People v. Prescott (Oct. 13, 2005, C046164) [nonpub. opn.].)

Defendant argued the search in this case was arbitrary, capricious and harassing. It was more than minimally intrusive because doors were knocked down and the house torn apart. The trial court questioned what evidence there was of pulling things apart. It noted there was evidence of one door being kicked in; the district attorney admitted two doors had been kicked in. Defendant argued the unlawful conduct from the 2003 search was used to perform this search. It was [t]he very heart of the exclusionary rule not to allow officers to benefit from their misconduct. He furthered argued the belief that Prescott was on probation was not reasonable because the officer checked only one of several computer screens.

The trial court denied the motion.

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362 [].) (People v. Maury (2003) 30 Cal.4th 342, 384.)

A probation search condition that permits a search without a warrant also permits a search without reasonable cause. (People v. Bravo (1987) 43 Cal.3d 600, 611.) In the case of a shared residence, a probation search condition of one with superior or common authority over the area to be searched is sufficient; the consent of other interested parties is unnecessary. (People v. Woods (1999) 21 Cal.4th 668, 675.) Defendant does not contest that Prescott was on searchable probation at the time of the search. That her conviction was subsequently reversed does not invalidate the search. (People v. Fields (1981) 119 Cal.App.3d 386, 389-390; accord People v. Miller (2004) 124 Cal.App.4th 216, 226 [probation search upheld although defendant later withdrew plea and conviction vacated].) The admissibility of evidence obtained in a probation search is determined by the legal status of the probationer at the time of the search. (People v. Fields, supra, at p. 390.)

Although reasonable suspicion is not required for a probation search, a probation search cannot be undertaken for harassment or for arbitrary or capricious reasons. (People v. Bravo, supra, 43 Cal.3d at p. 610.) A probation search may not be conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes. (Ibid.) A valid warrantless search could become unreasonable if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer. [Citations.] (People v. Reyes (1998) 19 Cal.4th 743, 753-754.)

Defendant contends the search was arbitrary, capricious and harassing. He contends arbitrariness must relate to the officers motivation. Here, he asserts, the officers motivation was his personal knowledge obtained from a prior search that was subsequently found to be unconstitutional. Since there was no evidence of a proper constitutional motivation, defendant contends, the judgment must be reversed.

Defendant relies on In re Anthony S. (1992) 4 Cal.App.4th 1000, for its discussion of what constitutes an arbitrary search. The court held an arbitrary search must relate to the executing officers motivation. Where the motivation is unrelated to rehabilitative and reformative purposes or legitimate law enforcement purposes, the search is arbitrary. For example, had the officer been motivated by personal animosity toward Anthony or his family, execution of the consent search term would be arbitrary. Here the evidence shows that the officers were motivated by a law enforcement purpose, i.e., to look for stolen property, alcohol, weapons, and gang paraphernalia at the homes of Ventura Avenue Gangsters members. (Id. at p. 1004.)

Here, there was no evidence that the narcotics detectives were motivated by anything other than a desire to search for illegal drugs, a legitimate law enforcement purpose. There was no evidence of personal animosity towards Prescott or defendant. The previous drug convictions had not been reversed at the time of the search and there was no evidence the officers knew of or expected a reversal. Further, the officers did not rely exclusively on knowledge obtained in the prior search; Detective Eubanks checked Prescotts probation status and address before undertaking the search. Thus, under an objective standard, the search was valid, regardless of any ulterior motive on the part of the officers. (People v. Woods, supra, 21 Cal.4th 668, 681.)

Since the probation search was valid under an objective standard, the trial court did not err in denying the motion to suppress.

II. Sufficient Evidence of Possession

Defendant contends there was insufficient evidence of possession. He contends there was no evidence he knew of the presence of methamphetamine. The money and the drugs were not in plain sight; they were hidden under the north side of the bed, closer to Prescotts belongings. Defendant asserts there was no evidence that he lived in the master bedroom and mere access is insufficient to establish possession.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Possession may be imputed when the contraband is found in a place immediately and exclusively accessible to the accused and subject to his dominion and control or to the joint dominion and control of the accused and another. [Citation.] (People v. Patino (1984) 160 Cal.App.3d 986, 996.) The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation]. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.)

Defendant relies on People v. Johnson (1984) 158 Cal.App.3d 850, 854-855, in which the court held there was insufficient evidence to establish defendant exercised dominion and control over the drugs where he was one of nine persons found in a house during a police search and nothing indicated he was the owner, lived there, had sold drugs there or had exclusive access to the contraband. Defendant contends this case is similar as there was no evidence he resided at the residence or stayed in the master bedroom. This contention is both surprising and incorrect. Defendant stipulated he resided at the residence from March 2005 until his arrest. His personal belongings -- Viagra, an inhaler, personal letters -- were found in the bedroom, as well as male clothing. Defendants counsel admitted defendant had an intimate relationship with Prescott. Possession may be established by circumstantial evidence and reasonable inferences drawn from such evidence. (People v. White (1969) 71 Cal.2d 80, 83; People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) From this evidence the jury could infer that defendant lived in the master bedroom with Prescott and had joint dominion and control with her over the drugs found there.

There is substantial evidence of possession to support the conviction of possession of methamphetamine for sale.

III. Response to Jury Questions

The jury was instructed, in the language of CALJIC No. 12.01, that one element of possession for sale was that a person exercised control over or the right to control, an amount of methamphetamine, a controlled substance. During deliberations, the jury asked for clarification of this element. The jury also asked: If a person has knowledge and access does it equal control Or right to control. After a discussion with counsel, the court responded: In response to Question No. 1 and 2: Whether or not a person exercised control over or the right to control a thing is a question of fact for the jury to decide based on all the evidence. Please review 12.01 at page 7-8 of the jury instructions.

Defendant contends the courts answer, although not incorrect, was incomplete and reversal is required. Defendant contends the court had the duty to discern and clear up the jurys confusion on the issue of possession. Notably, defendant fails to indicate what the proper answer should have been.

An appellant generally may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the appellant has requested appropriate clarifying or amplifying language. (People v. Andrews (1989) 49 Cal.3d 200, 218.) By failing to request a clarification or amplification of the terms control and right to control in the trial court, defendant forfeited the claim of error on appeal. (People v. Guiuan (1998) 18 Cal.4th 558, 570.)

In any event, we find no error. The court has a primary duty to help the jury understand legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

Although trial courts, generally, have a duty to define technical terms that have meanings peculiar to the law, there is no duty to clarify, amplify, or otherwise instruct on commonly understood words or terms used in statutes or jury instructions. (People v. Griffin (2004) 33 Cal.4th 1015, 1022.) The jury was fully instructed on the legal principles of possession for sale, with the concepts of actual and constructive possession explained. Possession was defined in everyday language as knowingly exercising control or the right to control a thing.

The jurys question was directed to a question of fact, not a question of law. In People v. Briscoe (2001) 92 Cal.App.4th 568, the jury asked if robbery at gunpoint was always a provocative act. The trial court, declining to answer either yes or no, and told the jury it was a factual question for the jury and suggested review of the instruction defining a provocative act. (Id. at p. 588.) The reviewing court found no error because whether robbery at gunpoint was a provocative act depended on the circumstances. [T]he trial court was prudent to respond to the jurys inquiry as it did. (Id. at p. 589.) The same is true here because whether defendant controlled or had the right to control the methamphetamine was a factual question for the jury. The trial court did not err in its response to the jury.

IV. Prosecutorial Misconduct

Defendant contends the prosecutor committed prejudicial misconduct in her rebuttal argument to the jury by stating that the defense had no explanation for the evidence. Defendant contends this argument improperly shifted the burden of proof to defendant and told the jury the presumption of innocence did not apply. We disagree.

The prosecutor began her rebuttal argument: Im a little bit confused after listening to those closing arguments. Apparently, the defense would have you just elect to overlook all of the evidence. But what no one has been able to explain away is what this was doing in the bedroom shared by these defendants. [] You can pick apart every little piece of evidence. Its easy to explain away why someone may have money. They want to say the scale was there, I think because of some jewelry, Im not real sure. They want to have an excuse for every single piece of evidence found, but how do you explain this? The only way to explain it is that they had it and that they were selling it, based on the evidence before you. [] There has been no explanation offered by the defense for this. The defense objected the argument was shifting the burden of proof. The trial court overruled the objection.

A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] (People v. Cook (2006) 39 Cal.4th 566, 606.)

A prosecutor may comment on the state of the evidence and defendants failure to introduce material evidence or call logical witnesses. (People v. Cook, supra, 39 Cal.4th at p. 608; People v. Cornwell (2005) 37 Cal.4th 50, 90.) A prosecutor may properly comment on the defense failure to present exculpatory evidence and such commentary does not erroneously imply the defense bears a burden of proof. (People v. Lewis (2004) 117 Cal.App.4th 246, 257.) A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty to produce evidence, or a duty or burden to prove his or her innocence. (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)

The prosecutors rebuttal argument was a fair comment on the state of the evidence. She did not state, or imply, that defendant had a burden to prove his innocence. Rather, she simply asked the jury what innocent explanation there could be for the fact that methamphetamine was found under the bed defendant and Prescott shared and noted that the defense provided none. There was no prosecutorial misconduct.

V. Romero Motion

The jury found true the allegation that defendant had a strike prior, first degree burglary. Defendant moved to strike this prior conviction, arguing it was nonviolent, he did not serve prison time for it, and it was remote as it occurred in 1996. Defendant pointed out the only prison term he had served was for the 2003 drug conviction which was reversed. The trial court denied the motion, finding defendants return to the same criminal behavior within five weeks of his release from prison showed the kind of recidivist behavior the Three Strikes law was intended.

Defendant contends the trial court abused its discretion by focusing solely on his past criminality, especially his 2003 drug conviction which was reversed.

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, at page 504, the California Supreme Court held that in cases charged under the Three Strikes law, a court may exercise the power to dismiss granted in Penal Code section 1385, subject to strict compliance with the provisions of section 1385 and review for abuse of discretion.

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)

Defendant faults the trial court with focusing on his criminal record, but it could hardly be ignored. While not as serious as some, defendants criminal record from 1993 to 2002 was extensive. It included seven misdemeanor offenses: several for driving under the influence, and possession of methamphetamine, an illegal weapon and burglary tools. In 1996, he was convicted of two felonies, burglary and theft. He received probation and one year later was found in possession of burglary tools. In 2004, he was convicted of another felony, receiving stolen property arising from conduct in 2002. He was sentenced to state prison and the offense was later reduced to a misdemeanor. At the same time in 2004, he was also convicted of possession of methamphetamine for sale, which was later overturned. Defendant was only out of prison custody five weeks when he committed the instant offense.

Defendant claimed he was willing to change my personal life, but denied culpability for the current offense. His counsel argued he had a supportive family, a job lined up, and his record was petty stuff. Defendants record, however, reveals that while defendant has often been granted leniency, and thus given chances, he has failed or refused to change his illegal conduct. Even time in prison failed to modify his behavior.

In light of the nature and circumstances of his present felony, possession of methamphetamine for sale, and his prior serious felony conviction for first degree burglary, and the particulars of his background, character, and prospects, defendant cannot be said to be outside the spirit of the Three Strikes law. (People v. Williams, supra, 17 Cal.4th at p. 161.) Indeed, his character and prospects are not favorable as his continuous criminal background shows he is a recidivist.

The trial court did not abuse its discretion in refusing to strike defendants prior serious felony conviction.

VI. Evidence of Strike Prior

Defendant contends there was insufficient evidence to prove his strike prior. Specifically, he contends three of the exhibits used to prove the issue of identity were inadmissible because they were not part of the record of conviction or were hearsay.

The question of whether defendant has suffered a prior conviction is tried by the jury that tries the case, unless defendant waives a jury. (Pen. Code, 1025, subd. (b).) The issue of whether defendant is the person who suffered the prior conviction, however, is tried by the court without a jury. (Id., subd. (c).)

In accordance with this procedure, the People offered four exhibits to the trial court to establish identity. Exhibit No. 41 consisted of various superior court documents relating to the 1996 burglary conviction. It was also presented to the jury to establish the prior conviction. Defendant does not object to this exhibit.

Exhibit No. 42 was a mugshot from the present case. Defendant objected to its admission on the basis of relevance and hearsay. Exhibit No. 43 was a Penal Code section 969b packet from a 2003 case, showing defendants date of birth, CDC number, and photograph. Defendant objected it was not relevant. The final exhibit, No. 44, was a CLETS report of defendants arrest history, which included his date of birth and CDC number. Defendant objected that it was not a part of the record of conviction in the 1996 case and was hearsay. These exhibits were offered because defendants name, date of birth, ex-reference number, and CDC number matched, showing defendant committed the 1996 burglary.^[1]

The trial court determined the exhibits established defendants identity. The jury found the prior conviction allegation true.

Defendant contends it was improper to admit exhibit Nos. 42 through 44 because they were not a part of the record of conviction in the 1996 case. The Attorney General responds the rule limiting evidence to the record of conviction does not apply to evidence used to prove other than the nature and circumstances of the prior, such as defendants identity. The Attorney General has the better argument.

In People v. Martinez (2000) 22 Cal.4th 106, the California Supreme Court determined whether a CLETS report could be used to establish defendant served prison terms for prior felonies. The court first determined that Penal Code section 969b did not limit evidence of a prior conviction to a 969b packet. (Id. at pp. 116-117.) Next, the court found the limitations of People v. Guerrero (1988) 44 Cal.3d 343 on the scope of proof of prior conviction allegations, limiting proof to the record of conviction, apply only to the circumstances of the crime, not other aspects of the prior conviction such as identity of the defendant or service of a prior prison term. (People v. Martinez, supra, at p. 118.) Thus, the People were not limited in this case to the record of conviction to establish that defendant was the person who committed the 1996 burglary and defendants objection to Exhibit Nos. 42 through 44 on this basis fails.

Further, the Martinez court held the trial court did not abuse its discretion in admitting the CLETS report under the official records exception to the hearsay rule. (People v. Martinez, supra, 22 Cal.4th at p. 134.) Accordingly, the trial court properly overruled defendants hearsay objection to the CLETS report.

The trial court did not abuse its discretion in admitting the exhibits to prove defendants identity with respect to the strike prior. Accordingly, there was sufficient evidence to sustain the jurys finding.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SCOTLAND, P.J.

BLEASE , J.

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^[1] The trial court later admonished the prosecutor that she should have been better prepared for the trial on the prior. Theres a lot easier ways to prove identity and to prove up the prior and less time consuming ways. We shouldnt have had to struggle as much as we did. Defendant does not contend the tangled web of matching identification numbers fails to prove his identity.