P. v. Fajardo

Filed 10/17/07 P. v. Fajardo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

As we will explain in greater detail below, in the execution of a search warrant, a law enforcement investigator discovered cocaine in Humberto Fajardos garage after a narcotics detection dog alerted the investigator to the presence of a controlled substance. The search warrant affidavit contained information from a confidential reliable informant that the informant could obtain a usable quantity of cocaine from Roberto. The trial court denied Fajardos motion to disclose the identity of the confidential reliable informant. A jury convicted Fajardo of possession for sale of a controlled substance, and he appealed from the judgment.

On appeal, Fajardo argues the trial court erroneously denied his motion to disclose the confidential reliable informants identity. He also claims the court erroneously instructed the jury it could rely on Fajardos prior uncharged drug-related offenses to show he knew the cocaine was in his garage. As we explain below, we conclude the instruction did include erroneous language, but when read in their entirety, the jury instructions were proper. His first contention regarding the confidential reliable informant has no merit. We affirm the judgment.

FACTS

Law enforcement officers obtained a search warrant to search a specified residence and a person named Roberto. The search warrant affidavit stated the affiant had been working with a confidential reliable informant (CRI) who had a pending criminal case and may receive consideration for information. The affiant stated that within the past 10 days, the CRI told an investigator the CRI could obtain a usable amount of cocaine from Roberto. The CRI also told the investigator where Roberto lived and described him. At the affiants request, the confidential attachment was sealed to protect the CRIs identity.

Orange County Sheriff Investigator Lance Gilbert and other officers conducted surveillance of the residence later that day. During the surveillance, Orange County Sheriff Investigator Francisco Prado saw Fajardo drive to the residence and get out. Fajardo carried a bucket and what appeared to be a black trash bag into the garage. He entered the garage with a key, remained inside for a few minutes, and then entered the front door of the house with a key. When he exited the garage, he did not have anything in his hands. Prado told the other officers that Fajardo was home and then watched Fajardo enter the garage again.

Gilbert knocked on the front door. When no one answered, he opened the unlocked door, entered the home, and announced his presence. Fajardo was in the master bathroom washing his hands. Gilbert told Fajardo they were there to search the house. After Gilbert handcuffed him, Fajardo told Gilbert his name was Humberto Pena and gave him a false date of birth.

Orange County Sheriff Investigator Thomas Lambi searched Fajardos garage with a narcotics detection dog. The dog alerted Lambi to something on the upper shelf in the garage. Lambi searched the area and found a black sock inside of which was a white piece of plastic inside of which was a Ziploc baggy containing four ounces of what he believed was cocaine. On the shelf near the sock, Lambi also saw a digital scale frequently used by narcotics dealers. There were buckets and tools a few feet away from the shelf. In another work bench, Lambi found pictures of Fajardo and business cards for Humberto Services.

Lambi took the dog into the house. While searching the master bedroom, the dog alerted Lambi to an area between a refrigerator and dresser. The dog put her nose near a white plastic shopping bag. Lambi did not find any narcotics, but the dogs alert indicated she smelled a controlled substance on the bag. The dog had never alerted Lambi to something that was not a controlled substance or its odor, but he could not always confirm the dogs alert because the controlled substance was not always present. Lambi searched the bedroom and found Fajardos passport.

During this time, a woman named Maria Hernandez and her son arrived. Hernandez said she was Fajardos girlfriend and they lived with him. Two other men arrived and told an investigator they lived at the house also.

Forensic testing showed the substance Lambi found in the garage weighed 110.2 grams and contained cocaine. Based on his training and experience, Gilbert opined Fajardo possessed the cocaine for sale based on the quantity and the fact there was no paraphernalia suggesting the cocaine was for personal use.

An amended information charged Fajardo with possession for sale of a controlled substance, cocaine (Health & Saf. Code,  11351). The information alleged Fajardo suffered four prior felony convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), and suffered a prior separate prison term within the meaning of Penal Code section 667.5, subdivision (b).

At trial, the district attorney offered Officer Fred Lopezs testimony. Lopez testified he arrested Fajardo three years earlier for possession of cocaine for sale. Fajardo had two packages of cocaine, one weighing four ounces, and one weighing one gram. He hid the four ounce package, which was in a clear Ziploc bag, in his groin area. He hid the one gram package in his sock. He told Lopez that he was carrying the cocaine because a friend called him to buy the cocaine. He agreed to meet his friend to sell him the four ounce package of cocaine. Fajardo admitted he had been selling cocaine sporadically for several years.

The district attorney also offered Gilberts testimony. Gilbert testified that eight years earlier he arranged for an undercover police officer to order drugs from Fajardo over the telephone. Gilbert arrested him. He possessed approximately two ounces of cocaine, some found on his person packaged to sell, and some found at his home. He also had a digital scale similar to the scale officers found here. He told Gilbert he had been selling cocaine for approximately one year.

Fajardo offered the testimony of his adult son, Jose Valdepena. Valdepena testified he lived with his father at the time of his arrest. He had a motorcycle his father agreed to try to sell and believed his father showed it to someone the day before he was arrested, but Valdepena was not there.

Fajardo testified on his own behalf. Fajardo said he, his two adult sons, his girlfriend, and her son moved into the house approximately two weeks before he was arrested. He stated that when he was selling drugs in 2003, he was working with a friend named Mario who would supply him with drugs. He said Mario wanted to work with him again in 2006, but he refused. He stated the last time Mario asked him to work for him was one week before he was arrested. Fajardo said the day before he was arrested, he showed Mario the motorcycle and Mario was in his garage for approximately

15 minutes. He did not know Marios last name or telephone number, but stated he had his telephone number among his personal effects. He admitted to selling drugs in the past, but denied doing so this time.

The jury convicted Fajardo of count 1. After waiving his right to a trial on the prior felony convictions, Fajardo admitted they were true. The trial court sentenced Fajardo to the middle term of three years on count 1 and two three-year consecutive terms on two of the prior convictions for a total state prison term of nine years. The court stayed punishment on the other two prior convictions and struck the prior separate prison term for purposes of sentencing only.

DISCUSSION

1. Confidential Informants Identity

Relying on People v. Perez (1965) 62 Cal.2d 769 (Perez), Fajardo argues the trial court erroneously denied his motion to disclose the CRIs identity because the informant was a material witness. We disagree.

Evidence Code section 1041, subdivision (a), states, [A] public entity has a privilege to refuse to disclose the identity of a person who has furnished information [to a law enforcement officer] purporting to disclose a violation of a law . . . . Evidence Code section 1042, subdivision (c), provides that otherwise admissible evidence of information communicated to a peace officer by a confidential informant may be introduced in a criminal proceeding under specified conditions without requiring that the name or identity of the informant be disclosed[.] Evidence Code section 1042, subdivision (d), states, When, in [a] criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. . . . The court shall not order disclosure, . . . nor dismiss the criminal proceeding, . . . unless, based upon the evidence presented at the hearing held in the presence of the defendant . . . , the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.

It is well established the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of [producing] some evidence on this score. [Citations.] (People v. Lawley (2002) 27 Cal.4th 102, 159-160.) A defendants showing to obtain disclosure of an informants identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility. [Citation.] (People v. Luera (2001) 86 Cal.App.4th 513, 526.)

The California Supreme Court has not settled the question of whether a trial courts denial of a motion to disclose the identity of a confidential informant is subject to de novo review or is reviewed for abuse of discretion. (People v. Gordon (1990)

50 Cal.3d 1223, 1245-1246, overruled on other grounds in People v. Edwards (1991)

54 Cal.3d 787, 835.) Accordingly, we will review the trial courts ruling de novo.

Before trial, Fajardo moved to disclose the CRIs identity. The motion included the search warrant and affidavit, and preliminary hearing transcript as exhibits. Because the confidential attachment was sealed to protect the CRIs identity, Fajardo was not privy to the facts contained within the sealed portion of the affidavit and was required to make his showing without the benefit of that information.

In his motion, Fajardo stated that because the search warrant affidavit indicated the CRI had a pending criminal case and may receive consideration from the district attorney, the CRI had a motive to lie. Fajardo stated, [He] believes that a day before the arrest, the [CRI] visited his garage with the pretext of buying a motorcycle[,] and the CRI planted the cocaine. He said the investigator found the cocaine in the corner of the garage where the [CRI] had been standing. Fajardo stated he intended to call the CRI as a witness during trial and needed to obtain his name and address to subpoena him. The district attorney responded to the motion.

At the hearing on the motion, the trial court stated it had reviewed Fajardos motion and exhibits, including the search warrant, the search warrant affidavit, the preliminary hearing transcript, and the district attorneys opposition. After hearing counsels argument, the court denied the motion. The court explained the affidavit did not state the CRI was in the garage the day before Fajardo was arrested. Additionally, the court stated the affidavit did not assert the drugs were in the garage. The court concluded by stating, [I]t appears to be just finger pointing and speculation[.]

Fajardo failed to produce some evidence the CRI was a material witness. He did not offer any evidence to suggest the CRI was the person who was in his garage looking at the motorcycle the day before he was arrested. Although Fajardo stated the CRI was standing near where the investigator found the cocaine, Fajardo never claimed he left the CRI alone in the garage or the informant had any other opportunity to plant the cocaine without being detected. Fajardos contention was nothing more than sheer, unreasonable speculation. And, the affiant did not state the CRI told the investigator Roberto hid his drugs in the garage. The informant told the investigator he could obtain cocaine from him. Had the CRI placed his drugs in the garage, a reasonable person could conclude the informant would have told the investigator generally where to find the drugs. Additionally, when the officer discovered the cocaine, Fajardo was not shocked, as one might expect he would be upon an officer finding planted drugs. Instead, he gave the officer a false name and date of birth. Finally, the fact the black sock did not have paint on it does not demonstrate the CRI planted the cocaine. The paint on Fajardos hands could have dried, or he could have put the cocaine in the garage that morning. The dog did alert to a shopping bag in the bedroom that did not contain cocaine. Based on this showing, it was not reasonably possible the CRI could give evidence on the issue of guilt that might exonerate Fajardo. Because Fajardo did not meet the threshold showing the CRI was a material witness, an in camera hearing was not warranted.

In Perez, supra, 62 Cal.2d at pages 772-773, officers arrested defendants at their hotel room late one evening. Officers, who had entered the room pursuant to a search warrant, found a canvas bag and a shopping bag containing marijuana, and a cigarette butt in an ash tray. (Ibid.) The affidavit supporting the search warrant stated that an informer had observed marijuana in defendants hotel room the same day. At trial, defendants testified that the day before, they met a stranger at a tavern who drove them to the hotel, put a package in one of defendants canvas bag and placed it, together with his own shopping bag, on the floor of defendants hotel room. The stranger returned the next evening and smoked a marijuana cigarette in the room. No one else entered the room that day. (Id. at p. 773.)

The California Supreme Court held the disclosure of the informants identity should have been compelled. (Perez, supra, 62 Cal.2d at pp. 773-774.) The court reasoned that if the informant was the person who left the marijuana in defendants room, he was a participant in the crime, and his testimony might have disclosed an entrapment and confirmed defendants testimony they did not know the bags in their possession contained marijuana. Rejecting the Attorney Generals claim there was no evidence the informant and the stranger were the same person, the court noted the fact the affidavit supporting the warrant claimed the informant had observed the marijuana in the hotel room on October 13 and according to the defense testimony, no one else except the stranger and the defendants were in the room that day. (Ibid.) The court stated, They need not prove conclusively before disclosure the very fact they seek to obtain through disclosure. (Ibid.) Perez is inapposite.
Here, the affiant did not state the CRI was in Fajardos garage the day before the arrest and Fajardo did not state he and Mario were the only two with access to the garage. Additionally, Fajardo knew who was in his garage the day before he was arrested, Mario. Although the trial court instructed both counsel not to mention the existence of a CRI, the court indicated defense counsel could offer evidence someone was in the garage the day before Fajardo was arrested and there were several people living in the house. Fajardo had Marios telephone number and likely could have subpoenaed Mario to testify to determine whether he planted the cocaine. (People v. Fried (1989) 214 Cal.App.3d 1309, 1316 [With the defendant assured of a fair trial through his obvious cognizance of the identities of persons admitted to his own property, the disclosure that one of those individuals is a police informant does nothing to increase the fairness of the trial].) He knew Mario for at least three years and had his telephone number among his personal effects. Therefore, the trial court properly denied Fajardos motion to disclose the CRIs identity.

2. CALCRIM No. 375

Fajardo contends the trial court erroneously instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 375 because it allowed the jury to consider his prior uncharged offenses to determine whether he knew there were drugs in the garage. As we explain below, we agree a portion of CALCRIM No. 375 as modified was erroneous, but conclude when read in its entirety and with the other jury instructions, the court properly instructed the jury. Additionally, any error was harmless.

The Attorney General states it does not concede [Fajardo] has preserved this issue for appeal particularly where the court read the instruction to the jury once, and then [Fajardo] acquiesced in the courts reading the exact instruction, without modification, to the jury two more times. Fajardo claims he may assert this point on appeal because the instruction affected his substantial rights. (Pen. Code, 1259.) We agree with Fajardo and will address the merits of his claim.[1] (People v. Flood (1998)

18 Cal.4th 470, 479-482, fn. 7.)

Evidence of uncharged acts is generally inadmissible to prove criminal disposition. (Evid. Code,  1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) However, Evidence Code section 1101, subdivision (b), allows the trial court to admit evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . knowledge, . . .) other than his or her disposition to commit such an act.

The elements of possession of a controlled substance are: 1. The defendant unlawfully possessed a controlled substance; 2. The defendant knew of its presence;

3. The defendant knew of the substances nature or character as a controlled substance; 4. When the defendant possessed the controlled substance, he intended to sell it; and

5. The controlled substance was in a usable amount. (People v. Parra (1999)

70 Cal.App.4th 222, 226; Health & Saf. Code,  11351.)

In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.] When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a reasonable juror could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277.)

CALCRIM No. 375, Evidence Of Uncharged Offense To Prove Identity, Intent, Common Plan, Etc., states: The People presented evidence that the defendant committed other offenses that were not charged in this case. [] . . . [] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [] If the People have not met this burden, you must disregard this evidence entirely. [] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [] . . . [] The defendant knew of the substances nature or character as a controlled substance, and knew of its presence when he allegedly acted in this case. [] . . . [] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendants credibility. [] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [Health and Safety Code section] 11351 . . . . The People must still prove each element of the charge beyond a reasonable doubt. (Italics added.)

Fajardo complains the trial court erroneously instructed the jury with the above italicized language because it allowed the jury to conclude that because he possessed drugs for sale in the past, he must have known there were drugs in his garage. We agree. It is clear the jury could rely on the prior uncharged offenses to conclude Fajardo knew of the substances nature or character as a controlled substance.

(E.g., People v. Thornton (2000) 85 Cal.App.4th 44, 49-50 [evidence of defendants use of heroin admissible to show knowledge of its narcotic character].) However, it was impermissible for the jury to consider the evidence he previously possessed drugs for sale to conclude he knew there was cocaine in the garage. Although that portion of CALCRIM No. 375 was erroneous, we must consider it within the context of the entire instruction, and the other instructions.

Despite the erroneous language, CALCRIM No. 375 also stated the jury could, but was not required to, consider this evidence as it related to his knowledge. It also prohibited the jury from considering the evidence for any purpose other than knowledge and credibility. It instructed the jury not to conclude from the evidence he had bad character or was disposed to commit crime. It stated the prior uncharged offenses were insufficient by themselves to prove he was guilty of count 1, and the prosecutor had to prove each element beyond a reasonable doubt. Additionally, the trial court instructed the jury with CALCRIM No. 220, Reasonable Doubt, which stated the district attorney must prove each element of count 1 beyond a reasonable doubt.

Finally, the district attorney, during closing argument, did not argue the jury could rely on the prior uncharged offenses to conclude Fajardo knew there were drugs in the garage. The district attorney limited its argument to its proper

usecredibility and knowledge of the substances nature or character. Based on all the instructions and counsels argument, we conclude there is not a reasonable likelihood the jury misconstrued or misapplied the law. Although we conclude the jury instructions were objectionable in part, we also conclude any error was harmless.

Fajardo claims we must review the error pursuant to the more stringent reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18. The Attorney General contends the standard of review articulated in People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson), is the appropriate standard. We agree with the Attorney General. The erroneous introduction of evidence of prior offenses is ordinary state law evidentiary error subject to review under Watson. (People v. San Nicolas (2004) 34 Cal.4th 614, 668.)

Here, it was not reasonably probable Fajardo would have received a more favorable result had the trial court not instructed the jury with the objectionable language because there was evidence from which the jury could reasonably conclude Fajardo knew there were drugs in the garage. Prado testified Fajardo entered the locked garage with a key and a bucket in his hand. When he exited the garage, he did not have the bucket. The investigator found the cocaine a few feet from the bucket. In the workbench, the investigator found pictures of Fajardo and his business card. From this evidence, it was reasonable for the jury to conclude he had access to the garage, he stored items in the garage, and he knew what was in the garage.

Additionally, when the investigator took the dog into Fajardos bedroom, the dog alerted to a shopping bag. The investigator testified that although he did not find any drugs in the bag, the dog alerts to the scent of controlled substances. From this testimony, the jury could reasonably conclude Fajardo at one point possessed controlled substances in his bedroom and must have known there was cocaine in the garage.

Finally, Fajardo gave the investigator a false name and date of birth. Based on all the evidence, the jury could reasonably conclude Fajardo was trying to conceal his identity because he knew there was cocaine in the garage. Therefore, there was sufficient circumstantial evidence from which the jury could reasonably conclude Fajardo knew there was cocaine in the garage.

DISPOSITION

The judgment is affirmed.

OLEARY, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

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[1] Because we conclude Fajardo has not forfeited appellate review of this issue, we need not address his claim he received in effective assistance of counsel.