Filed 8/27/18 P. v. Permut CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Following the denial of their motion to suppress, a jury found codefendants Tiwain Joshua Norman and Jeffrey Alan Permut guilty of conspiracy to possess marijuana for sale (Pen. Code,[1] § 182, subd. (a)(1); Health & Saf. Code, § 11359).[2] The jury found not true an allegation that defendants were armed in the commission of that offense (§ 12022, subd. (a)(1)). The jury also found Norman not guilty of carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1)) or possessing a firearm while under the age of 30 and adjudged a ward of the juvenile court (§ 29820). In a bifurcated proceeding, the trial court found true an allegation Norman had a prior juvenile strike conviction (§§ 667, subds. (b)-(i), 1170.12).

Norman was sentenced to four years in state prison (the middle term doubled for the prior strike). As for Permut, the trial court suspended imposition of sentence, placed him on three years’ probation, and ordered him to serve 365 days in jail, with no objection to that time being served on an ankle monitoring program instead.

Defendants’ primary contention on appeal is that the trial court prejudicially erred in denying the motion to suppress. They also claim that the trial court committed instructional error and that cumulative error requires reversal. Finally, Permut contends that the clerk’s minute order should be corrected to reflect that he was awarded nine (not five) days of custody credit.

We shall affirm the judgment and direct the trial court to correct the error in the clerk’s minutes relating to Permut’s custody credits.

FACTUAL AND PROCEDURAL BACKGROUND[3]

On July 20, 2014, at approximately 11:18 p.m., Sacramento Police Officers Christopher Clatterbuck and Jason Meier were patrolling an alleyway behind a Motel 6 in East Sacramento that was known for drug and prostitution activity. As they drove through the alleyway, they saw a gray Chevy Sprite pull into a stall and park. Norman exited the driver’s side of the vehicle, and a female exited the passenger side. The officers contacted Norman and searched him and the Chevy. The officers found keys to the Chevy, a cell phone, and $195 in cash on Norman’s person, and a .45-caliber Glock handgun under the front passenger seat of the Chevy. Meier searched the cell phone and found a number of text messages between Norman and Permut relating to the sale of marijuana. The officers then used the phone to send a series of text messages to a phone number that the parties stipulated belonged to Permut. Permut responded that he was at home “breakin it down.”

Norman was taken into custody and placed in the back of the officers’ patrol vehicle. The officers then proceeded to Permut’s residence, which was approximately two miles away. The officers knocked on the door of the residence and Permut answered. During a protective sweep of the residence, Officer Clatterbuck saw a Tupperware container with marijuana plant material inside, a scoop, a scale, and a number of one-by-one Ziploc baggies in the kitchen. At that point, Permut was placed in the backseat of a patrol car.

During a subsequent search of the house, officers found six mature marijuana plants and eight seedlings in the backyard. Posted on the refrigerator in the kitchen was a physician’s medical marijuana recommendation in the name of Christina Moe, one of Permut’s roommates. Meier found Permut’s cell phone on the kitchen counter and accessed a series of text messages on the phone. There were a series of text messages from July 13, 2014, with “Ty” from a phone number with a 408 area code. Norman’s friends call him “Ty.” An outgoing message on Permut’s phone said, “I might have that Sour D off for 18 to 19 hundo. I’ll know in a minute. Gonna be shipped out unless we can make some good profit on it today.” Meier recalled seeing a message on Norman’s phone about “Sour D” and describing “18, 19 hundo.” An outgoing message sent several hours later said, “I’m a get 2k for the Sour D.” Eleven minutes later, an incoming message said, “Okay, bro, good shit. I be over later.” Meier recalled seeing that message on Norman’s cell phone. A minute later, an outgoing message said, “K, no rush.” The next day there were two more outgoing messages to “Ty” from Permut’s phone. The first message said, “He won’t be here until tomorrow or Wednesday, plus I’m a need the money from the OG to get another. I don’t have enough.” The second message said, “We have the sour D, though. Brea flaked. I should have known. Last time I trust anything that bitch says. I think we got the whole . . . pack of Sour D.” Meier recalled seeing those messages on Norman’s cell phone as well.

Sacramento Police Detective Darby Lannom testified as an expert on the possession and sale of marijuana. He testified, inter alia, regarding the various indicators of when a person possesses marijuana for sale, as opposed to personal use, and the manner in which individuals make money by selling marijuana. In particular, he stated that those who possess marijuana for sale commonly have scales, packaging material, a large quantity of marijuana, cell phones, pay/owe sheets, large amounts of currency, and firearms, and their cell phones commonly have a high volume of calls, texts, and emails. Lannom opined that marijuana sellers would sell bags of marijuana in Ziploc bags like the ones found in Permut’s residence for $10 each. He explained that “Sour D” is a strain of marijuana, getting “2k for the Sour D” was consistent with a per pound price for marijuana, and “still at the house breaking it down” meant taking a larger amount of marijuana and breaking it into smaller amounts for resale. In response to two hypotheticals mirroring the evidence presented in the case, Lannom opined that the two individuals were together to sell marijuana, possessed the marijuana for sale, and had a role in making proceeds from the sale of the marijuana.

Permut presented no evidence in support of his defense. Norman called a criminal investigator with the Sacramento County District Attorney’s Office, who testified that he downloaded cell phones using a Cellebrite device as part of his job. He described the downloading process and testified regarding several text messages in this case.

DISCUSSION

I

The Trial Court Properly Denied the Motion to Suppress

Prior to trial, Permut moved to suppress all tangible and intangible evidence “obtained as a result of the deprivations of [his] right to privacy following the unlawful warrantless search of [his] residence and cellular phone.” (§ 1538.5) Permut asserted that “[t]he consent to search was invalid because it was given as the result of duress, coercion, and submission to a claim of lawful authority,” and “even if . . . the consent to search was valid, the warrantless search of [his] cellular phone exceeded the scope of the consent” under Riley v. California (2014) ___ U.S. ___ [189 L.Ed.2d 430] (Riley). Norman joined in Permut’s motion and filed supplemental points and authorities, in which he further asserted that that he was illegally detained when the officers learned he was on probation, and thus, the “fruits of any subsequent search [were] inadmissible.”

The following evidence was adduced at the hearing on the motion to suppress. On July 20, 2014, at approximately 11:18 p.m., Officers Clatterbuck and Meier were patrolling an alleyway behind a Motel 6 in East Sacramento that was known for narcotics sales and prostitution. As the officers drove down the alleyway, they saw a Chevy Sprite drive towards them and pull into a parking stall behind the motel. Norman exited the driver’s side of the car, and a female exited the passenger side. As Norman and his companion were making their way to the motel, the officers pulled alongside them in their marked patrol car, and Clatterbuck asked Norman if he was staying at the motel, which room he was going to, and his name. He also asked whether Norman was on probation. Norman responded that he was not sure. A “records check” revealed that Norman was on “juvenile searchable probation.” It took about 15 or 20 seconds to run the records check.

The officers spoke to Norman from inside their patrol car. They did not command Norman to stop or to come to them. Clatterbuck testified that he used a calm tone when speaking to Norman. The officers did not tell Norman that he could not leave prior to confirming that he was on probation. Meier testified that Clatterbuck asked Norman “if he minded staying where he was so that [Clatterbuck] could run his name.”[4] When asked if he “underst[oo]d that to be a request from Officer Clatterbuck to [Norman] not to leave,” Meier responded in the affirmative.

After learning Norman was on juvenile searchable probation, the officers exited their patrol vehicle, and Clatterbuck searched Norman. Clatterbuck found keys to the Chevy, $195 in cash, and a cell phone on Norman’s person and a .45-caliber Glock handgun under the front passenger seat of the Chevy. After discovering the gun, Clatterbuck instructed Meier to place Norman in the patrol car.

Norman told the officers that his fingerprints would be on the gun, but that the gun belonged to his friend, Permut. He also stated that he had borrowed the Chevy and the motel room from Permut. The officers confirmed that the motel room was registered in Permut’s name. A records check of the serial number of the gun did not indicate that the gun belonged to Permut or Norman.

Meier looked for text messages on Norman’s cell phone and found text messages to Permut that he believed “indicated sales of marijuana.” In particular, he saw messages indicating that “he sold the Sour D for 18 to 19 hondo. That Ty was going to come back to the residence, that he was in possession of the Sour D and that he was going to bring it back so that they could ship it out.” Posing as Norman, Clatterbuck sent a text message to a phone number he believed belonged to Permut and received a response that the receiver of the text was home. Using information from the motel registry, the officers ran a DMV search and located Permut’s residential address.

Shortly after midnight, Clatterbuck, Meier, and another police officer arrived at Permut’s residence. Clatterbuck and Meier knocked on the door while the other officer waited near the street. Permut answered the door, stepped outside, and closed the screen door to the house. The officers told Permut that they had located a firearm in a rental car that Norman said belonged to Permut. Clatterbuck informed Permut that the officers were going to do a “protective sweep” of the residence for officer safety. Permut wanted to continue talking outside, but the officers told him that they were not comfortable doing so until they had performed a sweep to make sure “no one was going to basically jump out and attack” them. The officers asked Permut more than once for permission to conduct a sweep before he eventually consented.

Clatterbuck entered the house, found Permut’s two female roommates asleep in their bedrooms, and instructed them to go outside. While inside, Clatterbuck saw plastic baggies containing marijuana, as well as empty plastic baggies, a digital scale, and a “scooping device” on the kitchen table. After he told Meier what he had seen, Meier handcuffed Permut and placed him in the back of a patrol vehicle.

In the meantime, another officer arrived at the scene and obtained the two roommates’ written consent to search the residence.[5] Meier was given “consent to search” forms signed by Permut’s roommates, Briana Ebertsky and Christina Moe, before his conversation with Permut about searching his residence. A video recording of that conversation was played for the trial court at the hearing on the motion to suppress.

During his conversation with Permut, Meier told Permut that his roommates had already consented to a search. When Permut asked, “How long would a warrant take,” Meier responded, “Six to eight hours before we can get a warrant.” Meier said that because he was not sure that a judge would authorize night service at that point. Meier testified that Permut would not have been detained in the patrol car for that amount of time, and that he was not trying to give Permut the impression that he would be sitting in a car for six to eight hours. Rather, his intention was to tell Permut that they would obtain a warrant. At one point, Meier told Permut that they would obtain a warrant and were going to search the house. He then told Permut, “I don’t want you to sit here all night. That’s why I’m asking, can we search the house?”

Approximately 25 minutes after being placed in the back of the patrol car, Permut signed a “consent to search” form, which provides in pertinent:

“It has been explained to me that I need not consent and have a right to refuse to allow a search of the premises located at 3973 4th Ave. and further that I need not consent to and have the right to refuse to allow a search of the motor vehicle(s) more particularly described as follows: 4SWE532 BMW 740i.

“I understand that if I do not consent to a search of the above-mentioned premises or vehicle(s) that the same cannot be searched without a search warrant.

“It has been explained to me that any consent which I do give to a search must be free and voluntary.

“I fully understand my rights, as set forth above, and with that understanding in mind, consent to a search of the above-mentioned premises and vehicle(s) by: Officer Meier #432 of the Sacramento Police Dept and such other officers as he/she may designate to assist him/her.

“I further authorize said officers to remove from the above-mentioned premises and vehicle(s) whatever documents or property they deem pertinent to their investigation with the understanding that said officers will give me a receipt for whatever is taken by them.

“I give this consent freely and voluntarily without any threats or promises having been made to me.”

Thereafter, officers searched Permut’s residence and found, among other things, six mature marijuana plants and eight seedlings in the backyard; a Wells Fargo deposit receipt, dated July 10, 2014, in the amount of $4,000; and a cell phone on the kitchen counter. Meier searched the cell phone’s contents and found texts that he believed were indicative of marijuana sales and contact with a person named “Ty.” He saw similar messages on Norman’s phone that he believed were indicative of marijuana sales.

The parties stipulated that the searches in question were conducted without a warrant.

Permut submitted a written declaration, under oath, in support of his motion to suppress. He declared that on the night in question, he was awakened by officers banging on his door. When he opened the door, there were two officers on his porch with guns in hand and six to eight additional officers on his lawn. The officers asked him if he knew Norman and immediately insisted on conducting a protective sweep of his residence. Permut assured the officers that the only people in the house were his two sleeping female roommates. After initially refusing the officers entrance, Permut opened the door and allowed them to glance down the hallway. One of the officers put his foot in the doorway as other officers from the lawn began to approach the house. Permut was ordered to sit on the porch while officers demanded entry to conduct a protective sweep. Feeling he had no choice, Permut gave the officers permission to enter his home to knock on his roommates’ bedroom doors and then come back outside. The officers did not so limit their sweep and instead remained inside the residence, searching each room after his roommates were sent outside.

Permut was patted down, placed in handcuffs, and put in the back of a locked police car without any explanation. He repeatedly was asked to consent to a search of his residence and repeatedly refused to give consent. After “quite some time” an officer told him that he was “ ‘going to sit in the back of that car all night until the courts open and a judge issues a warrant . . . so [he] might as well save everyone the time and trouble.’ ” He was also told that his roommates had already consented to officers entering the house. He felt “pressure and intimidation” and thought he had “no other option” but to sign the consent form. Due to the “poor lighting conditions, immense stress, lack of sleep, and frazzled state of mind,” he was unable to properly read the consent form or “comprehend what was happening” before signing it.

The trial court denied the motion to suppress. The court found that Norman was not unlawfully detained prior to the officers learning that he was on searchable probation. The court reasoned, “[N]o guns were drawn, no tasers were drawn, no threats were made. They weren’t lit up by spotlights. The lights on top of the car were not lit up. The entirety of the circumstances with regard to Norman on that stop does not indicate . . . that his constitutional rights were violated. There was simply the encounter, the stop, the request. Then they ran the known persons, and comes out he’s searchable.” To the extent Clatterbuck testified that he did not tell Norman that he “had to stay there,” and Meier testified that Clatterbuck “did tell him to stay there,” the court stated that it had “more faith in Clatterbuck’s testimony.”

As for Permut, the trial court found that his initial consent to the protective sweep was “freely given” and “not coerced.” The court observed that the video of Meier’s conversation with Permut in the patrol vehicle was “very helpful,” stating that “[w]hile Mr. Permut was in the back of the seat, he did indicate to Officer Meier, I gave you guys permission to do the sweep.” The court also found that “given the totality of the circumstances, including the interview in the vehicle,” Permut’s consent to search the residence “was legal” and included the search of his cell phone. The court observed that the “the conversations were, do you mind if we do this or that. In other words . . . they were not demands. They were requests.”

A. The Trial Court Properly Determined That Norman Was Not Detained When the Officers Learned He Was on Searchable Probation

Norman contends that the trial court erred in denying the motion to suppress because he was unreasonably and unlawfully detained when the officers learned he was on searchable probation, rendering the subsequent search of his person, vehicle, and cell phone unlawful under the federal and state constitutions. We are not persuaded.

The Fourth Amendment to the United States Constitution requires state and federal courts to exclude evidence from unreasonable searches and seizures. (People v. Williams (1999) 20 Cal.4th 119, 125.) Section 1538.5 allows a defendant to move to suppress evidence obtained in an improper seizure. Our standard of review is well established. “In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment.” (People v. Simon (2016) 1 Cal.5th 98, 120.)

“A seizure of a person implicating the Fourth Amendment occurs ‘ “when [a police] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” ’ (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389].) An officer must either ‘intentionally appl[y] hands-on, physical restraint’ or ‘initiate a show of authority, to which the objectively reasonable innocent person would feel compelled to submit, and to which the suspect actually does submit for reasons solely attributable to the police show of authority.’ (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367, 1371, italics omitted.) ‘Unlike a detention, a consensual encounter between a police officer and an individual does not implicate the Fourth Amendment. It is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to do so’ without having any ‘articulable suspicion of criminal activity.’ (People v. Rivera (2007) 41 Cal.4th 304, 309.) ‘[T]he crucial test is whether … the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” ’ (Florida v. Bostick, at p. 437.) This test ‘is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.’ (California v. Hodari D. (1991) 499 U.S. 621, 628 [113 L.Ed.2d 690].)” (In re J.G. (2014) 228 Cal.App.4th 402, 409.)

“In determining whether a reasonable person would have believed he or she was free to ignore the police presence and go about his business, a court ‘ “must consider all the circumstances surrounding the encounter” [and] assess[] the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.’ (In re Manuel G. (1997) 16 Cal.4th 805, 821, citation omitted.) Relevant factors include ‘the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled.’ (Ibid.) The officer’s and the suspect’s subjective states of mind, however, are ‘irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.’ (Ibid.)” (In re J.G., supra, 228 Cal.App.4th at pp. 409-410.)

Norman contends that his contact with Officers Clatterbuck and Meier in the alleyway was a detention, not a consensual encounter, because the officers “pursued” him as he attempted to walk away and asked him accusatory questions through an open window. According to Norman, “the night, the alleyway, the isolation, [and] the close proximity of two armed police” constituted a “significant show of authority,” and a reasonable person would not have felt free to leave under those circumstances. We are not persuaded.

As detailed above, Clatterbuck and Meier pulled alongside Norman and his companion and questioned Norman from their patrol car. They did not block his way. They did not order him to stop or answer their questions. They did not display their weapons. They spoke to him in a calm voice. It took only a matter of seconds for the officers to determine Norman was on probation. Under these circumstances, we find that a reasonable person would have believed he was free to leave.

Norman places much emphasis on Meier’s testimony that Clatterbuck asked him if he would mind waiting, which Meier understood as a request to stop. A request is not an order, and Meier’s subjective interpretation of Clatterbuck’s words is not relevant to our inquiry in any event. (California v. Hodari D., supra, 499 U.S. at p. 628 [test is objective one].)[6]

Norman relies on People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) in support of his contention that he was unlawfully detained. In that case, an officer saw the defendant standing on a corner in a high-crime area. (Id. at pp. 1103-1104.) After observing the defendant for only five to eight seconds from his marked patrol vehicle, the officer illuminated defendant with his patrol car’s spotlight, got out of his police vehicle, and “all but ran” directly toward the defendant while asking him about his probation and parole status. (Id. at pp. 1104, 1111-1112) The court found that “only one conclusion is possible from this undisputed evidence: [the officer’s] actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was ‘ “not free to decline [his] requests or otherwise terminate the encounter.” ’ [Citation.]” (Id. at p. 1112.)

The present case is readily distinguishable. The officers did not exit their patrol car and walk briskly toward Norman while asking him about his probation status. Rather, they pulled up alongside him as he was walking and asked him if he was staying at the motel, which room he was going to, and his name before inquiring about his probation status. Unlike the defendant in Garry, a reasonable person who found himself in Norman’s circumstances would have felt free to leave. (Garry, supra, 156 Cal.App.4th at p. 1112.)

Norman also cites Wilson v. Superior Court (1983) 34 Cal.3d 777, 790-791 (Wilson) for the proposition that “[w]here police questioning implies that the individual is a suspect in criminal activity, the encounter is a detention.” In Wilson, the court held that a defendant was detained when a detective advised the defendant “that he was conducting a narcotics investigation and that he ‘had received information that [the defendant] would be arriving today from Florida carrying a lot of drugs.’ (Italics added.)” (Id. at p. 790.) The court reasoned, “Common sense suggests to us that in such a situation, an ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer. Before [the detective] made that statement, [the defendant] might well have thought that the officer was simply pursuing routine, general investigatory activities, and might reasonably have felt free to explain to the officer that he had an important appointment to keep and did not have the time -- or, perhaps, the inclination -- to answer the officer’s questions or to comply with his requests for permission to search. Once the officer advised [the defendant] that he had information that [the defendant] was carrying a lot of drugs, the entire complexion of the encounter changed and [the defendant] could not help but understand that at that point he was the focus of the officer’s particularized suspicion.” (Id. at pp. 790-791.)

Unlike in Wilson, the police questioning in this case did not imply that Norman was a suspect in criminal activity. (Wilson, supra, 34 Cal.3d at pp. 790-791.) Clatterbuck and Meier never intimated that they had information that Norman was involved in any illegal activity or otherwise accused him of any wrongdoing. Thus, unlike the defendant in Wilson, a reasonable person who found himself in Norman’s circumstances would not have understood that he was the focus of the officers’ particularized suspicion.[7]

B. Norman Forfeited His Claim That the Search of His Cell Phone Was Unlawful Under Riley

Norman claims that even if the search of his cell phone was not the product of an illegal detention, it nevertheless was unlawful under the United States Supreme Court’s decision in Riley, which holds “that a warrant is generally required before [searching a cell phone], even when a cell phone is seized incident to arrest.” (Riley, supra, ___ U.S. at p. ___ [189 L.Ed.2d at p. 451].) The People assert that Norman forfeited any claim that the warrantless search of his cell phone violated Riley by failing to raise the issue in the trial court. The People are correct.

Norman concedes that his trial counsel failed to challenge the admission of the contents of his cell phone in the trial court but argues that we nevertheless have the discretion to consider the argument because the error involves fundamental rights. He is mistaken. While an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party, “it is in fact barred when the issue involves the admission (Evid. Code, § 353) or exclusion (id., § 354) of evidence.” (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) By failing to raise the issue below, Norman failed to preserve his right to raise the issue on appeal.

C. Substantial Evidence Supports the Trial Court’s Finding That Permut Freely Consented to a Protective Sweep of His Residence

Permut contends that the trial court’s finding that he freely consented to the protective sweep of his residence is not supported by substantial evidence. We disagree.

A search conducted without a warrant presumptively violates the Fourth Amendment’s proscription against unreasonable searches and seizures. (People v. Woods (1999) 21 Cal.4th 668, 674.) That presumption can be overcome by a limited number of exceptions to the warrant requirement. (Ibid.) One well recognized exception to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. (People v. Frye (1998) 18 Cal.4th 894, 989, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A person’s consent must be the product of free will and not a mere submission to an express or implied assertion of authority. (People v. James (1977) 19 Cal.3d 99, 106 (James).) The voluntariness of consent is a question of fact to be determined in light of all the circumstances. (Ibid.) “[T]he trial court’s findings on this issue, either express or implied, must be upheld on appeal if they are supported by substantial evidence. [Citation.] All presumptions favor the proper exercise of the trial court’s power to judge the credibility of witnesses, resolve conflicts, weigh evidence, and draw factual inferences.” (People v. Llamas (1991) 235 Cal.App.3d 441, 447, fn. omitted (Llamas).)

Here, Clatterbuck testified that upon contacting Permut, he and Meier informed Permut that they (1) had located a firearm in a rental car at the Motel 6, (2) had been informed by Norman that the firearm belonged to Permut, and (3) were conducting an investigation to determine to whom the firearm belonged. Thereafter, Clatterbuck asked Permut if the officers could conduct a protective sweep to look for “anyone that could harm [them] or any other officers,” and Permut consented. The officers did not arrive at Permut’s house with their lights or sirens on, and neither officer had his weapon drawn while speaking with Permut.

Meier likewise testified that prior to requesting Permut’s consent to conduct a protective sweep, he and Clatterbuck explained that they had located a gun, and Permut’s name had come up in their investigation related to the gun. With respect to the protective sweep, they advised Permut that they “were searching specifically for people to make sure they would not jump out at us or attack us in any way.” While Permut initially was reluctant to give his consent, he eventually gave it. According to Meier, the officers spoke in a “conversational tone, nothing angry or threatening in any way.” Clatterbuck performed the protective sweep, which lasted about two minutes.

While Permut’s account differed, the trial court credited the officers’ version of events. The court also credited the video of Meier’s conversation with Permut, noting that “[w]hile Mr. Permut was in the back of the seat, he did indicate to Officer Meier that, I gave you guys permission to do the sweep.” Substantial evidence supports the trial court’s finding that the protective sweep was lawful based on consent.[8]

D. Substantial Evidence Supports the Trial Court’s Finding That Permut Freely Consented to a Search of His Residence

Permut next contends that the trial court’s finding that he freely consented to a search of his residence is not supported by substantial evidence. Again, we disagree.

As detailed above, the trial court’s resolution of the question whether a consent to a search was in fact voluntary or a product of duress or coercion will not be disturbed on appeal if there is substantial evidence to support it. (James, supra, 19 Cal.3d at p. 106; Llamas, supra, 235 Cal.App.3d at p. 447.) There is such evidence here.

Permut was handcuffed and placed in the back of a patrol vehicle after Clatterbuck observed marijuana and other indicia of narcotics sales on the kitchen table during the protective sweep. Twenty-five minutes later, after being advised that his roommates had already consented to a search of the residence and that officers would obtain a warrant, which could take six to eight hours, if he refused to consent, Permut signed the “consent to search” form. The form signed by Permut states, in part: “It has been explained to me that I need not consent and have a right to refuse to allow a search of the premises,” “I understand that if I do not consent to a search of the above-mentioned premises . . . that the same cannot be searched without a search warrant,” “It has been explained to me that any consent which I do give to a search must be free and voluntary,” “I fully understand my rights, as set forth above, and with that understanding in mind, consent to a search of the above-mentioned premises,” and “I give this consent freely and voluntarily without any threats or promises having been made to me.”

Permut claims that the search was “not justified by valid, voluntary consent, despite the signed written consent form presented by the prosecution.” He asserts that “[l]eaving [him] handcuffed in the back of the police car, suggesting he would remain that way for six to eight hours until the inevitable search warrant was issued, erroneously representing that his roommates had already given consent, and repeatedly requesting that he give consent despite his explicit refusals, were inappropriate coercion.”

A person’s in-custody status, even when he is handcuffed, does not automatically vitiate his consent; this is “ ‘but one of the factors, but not the only one, to be considered by the trial judge who sees and hears the witnesses and is best able to pass upon the matter.’ ” (James, supra, 19 Cal.3d at p. 110, quoting People v. Valdez (1961) 188 Cal.App.2d 750, 756.) Moreover, Meier’s statement that he would obtain a search warrant did not serve to vitiate Permut’s consent to search since the statement did not threaten to do anything other than what Meier had a legal right to do. (People v. McClure (1974) 39 Cal.App.3d 64, 69; see also People v. Mayberry (1982) 31 Cal.3d 335, 343.) In addition, giving Permut the choice of consenting to a search or waiting for a search warrant has been held not to constitute coercion. (McClure, at pp. 69-70; People v. Ward (1972) 27 Cal.App.3d 218, 224; People v. Rupar (1966) 244 Cal.App.2d 292, 298.) As for Permut’s claim that Meier erroneously represented that Permut’s roommates had already given consent, Meier testified that he was given “consent to search” forms signed by Permut’s roommates before seeking Permut’s consent to search the residence. While the times affixed to the consent forms by the witnesses thereto indicated that Permut executed the consent form before his roommates, it could be reasonably inferred from Meier’s testimony that the times given were incorrect.[9] Finally, while Permut was asked to consent to the search of his residence more than once, he gave his consent approximately 25 minutes after being placed in the patrol car. After watching the video of the conversation that preceded Permut’s consent, the trial court found the consent was legal and that conversation consisted of requests, not demands. Substantial evidence supports the trial court’s finding.

E. Any Error in Failing to Suppress the Contents of Permut’s Cell Phone Was Harmless

Permut claims that even if his consent to search his residence was lawful, the warrantless search of the contents of his cell phone exceeded the scope of his consent under Riley, supra, ___ U.S. at page ___ [189 L.Ed.2d at page 448], and thus, the evidence obtained as a result of the search of his cell phone should have been suppressed. We need not and do not reach the merits of Permut’s claim because any error in failing to suppress the contents of his cell phone was harmless beyond a reasonable doubt because the contents of Norman’s cell phone, which contained many of the same texts, was properly before the jury. (Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705].)

Permut asserts that had the contents of his cell phone been suppressed, “the prosecution would have had a scant case against [him] for conspiracy, as charged, since the text messages provided the only evidence relied upon by the prosecution to show an agreement between Norman and Permut, and to establish possession for sale.” Permut’s assertion ignores the fact that most of the text messages relied on by the People to establish a conspiracy to possess marijuana for sale were on both his and Norman’s cell phones. Significantly, Meier testified that he found a number of text messages between Norman and Permut relating to the sale of marijuana on Norman’s cell phone. In particular, he recalled seeing messages about “Sour D” and describing “18, 19 hundo” and “I’m a get 2k for the Sour D.” He recalled seeing an outgoing message on Norman’s phone that read, “Okay, bro, good shit. I be over later.” He also recalled seeing the following messages from Permut on Norman’s phone: “He won’t be here until tomorrow or Wednesday, plus I’m a need the money from the OG to get another. I don’t have enough” and “We have the sour D, though. Brea flaked. I should have known. Last time I trust anything that bitch says. I think we got the whole . . . pack of Sour D.”

Given this evidence, any error in failing to suppress the contents of Permut’s cell phone was harmless beyond a reasonable doubt.

II

The Trial Court Did Not Err in Refusing to Instruct the Jury That Compassionate Use Is an Affirmative Defense to Possession of Marijuana for Sale Because Such an Instruction Was Not Supported by Substantial Evidence

Permut next contends that the trial court prejudicially erred in refusing to instruct the jury on the Compassionate Use Act[10] defense based on a theory that he was a qualified primary caregiver. Norman joins in the argument. We are not persuaded.

Permut requested the trial court instruct the jury on the Compassionate Use Act, explaining that the he “planned to rely on the primary caregiver defense to argue that [he], as a primary caregiver for a person with a medical marijuana recommendation, did not have the specific intent to commit the target crime.”[11] The trial court declined Permut’s request, finding there was insufficient evidence to support it.

A trial court is required to give a pinpoint instruction upon request when there is evidence supportive of that theory. (People v. Jennings (2010) 50 Cal.4th 616, 675.) As the trial court determined, such an instruction was not supported by substantial evidence. “For a person to be a qualified primary caregiver, he or she must be ‘designated’ as such by a qualified patient, and must have ‘consistently assumed responsibility’ for the qualified patient’s ‘housing, health, or safety.’ ([Health & Saf. Code,] § 11362.5, subd. (e).)” (People v. Mower (2002) 28 Cal.4th 457, 475-476.) The sole evidence relevant to this issue was the medical marijuana recommendation for Moe that was posted on the refrigerator. Even assuming for argument’s sake that Moe was a qualified patient, there is no evidence that Permut had been designated by her as a primary caregiver, or that he consistently had assumed responsibility for her housing, health, or safety. (See ibid.) Absent such evidence, the trial court properly denied Permut’s request to instruct the jury on a Compassionate Use Act defense.

III

The Trial Court Did Not Err in Refusing To Give Permut’s Requested Pinpoint Instruction on Immunity

Permut next contends that the trial court prejudicially erred in refusing “to instruct the jury that Christina Moe and Permut’s other roommate, who did not testify at trial, could not be compelled to testify by the defense, absent a request by the prosecution that they be granted immunity, and to explain the law of immunity.”[12] According to Permut, the court’s refusal to so instruct the jury “erroneously allowed speculation as to his failure to call a logical witness,” namely Christina Moe. Norman joins in the argument. There was no error.

Although a defendant generally has the right to a pinpoint instruction on a particular defense theory (People v. Jennings, supra, 50 Cal.4th at p. 675), “a trial court may refuse a proffered instruction if it is an incorrect statement of law, is argumentative, or is duplicative” (People v. Gurule (2002) 28 Cal.4th 557, 659). A court also may refuse a pinpoint instruction that is confusing. (People v. Moon (2005) 37 Cal.4th 1, 30.)

The immunity instruction sought by Permut was not supported by the record, was inaccurate, and was potentially confusing. The basis for the instruction was Permut’s purported inability to call the witnesses based on the People’s refusal to grant them immunity. Permut, however, failed to make an offer of proof that Moe or his other roommate would exercise her Fifth Amendment privilege to decline to testify if called to do so. Rather, he argued that “they could necessarily, as a matter of law, claim the Fifth Amendment,” in which case the court could not compel them to testify absent a request for an order of immunity by the prosecution. (Italics added.) As the trial court observed in denying Permut’s request, “[W]e don’t know what Christina Moe would have testified to. . . . oth defendants, as well as the prosecutor . . . have . . . the power to subpoena and bring in witnesses . . . . She could have testified, I want a lawyer. I don’t object. She could have testified, oh, no that wasn’t mine. I don’t want a lawyer. I’ll say whatever I want to say, and I’m happy to go. We just don’t know what she was going to say.” Absent some showing that Permut’s roommates would exercise their Fifth Amendment privilege if called to testify, the instruction’s statement that “Briana and Christina Moe could not be compelled to testify by the defense absent a request by the prosecution requesting immunity” was inaccurate and the preceding statements concerning the law of immunity confusing. As the trial court observed, both the defendants and the prosecution had the power to subpoena witnesses to testify at trial (§ 1326, subd. (a).), and Permut failed to show that if he did so the witnesses in question would invoke their Fifth Amendment privilege to testify.

Permut seeks reversal based on cumulative error. “Under the ‘cumulative[b] error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have assumed the trial court erred in only one instance--in failing to suppress the contents of Permut’s cell phone--and we concluded the error was harmless. Accordingly, there was no cumulative error.

V

The Minute Order Should Be Corrected to Reflect Permut’s Presentence Conduct Credits

Finally, Permut contends, and the People agree, that the clerk’s minute order incorrectly reflects that he was awarded only five days of credit, when he was actually awarded a total of nine days (five actual days & four conduct). Having reviewed the record, we shall order the trial court to correct the error.

DISPOSITION

The judgment is affirmed. The trial court is directed to amend the clerk’s minute order to reflect that Permut was awarded a total of nine days presentence custody credits.

/s/

Blease, Acting P. J.

We concur:

/s/

Hull, J.

/s/

Hoch, J.