People v. Quinones CA4/2 ( 2015 )

Filed 3/3/15 P. v. Quinones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058882
v. (Super.Ct.No. RIF1106224)
LOUIS JOHN QUINONES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge.
(Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art.
VI, § 6, of the Cal. Const.) Affirmed.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Randall D. Einhorn, and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
1
I
INTRODUCTION
Defendant Louis John Quinones appeals from judgment entered following a jury
conviction for possessing heroin for sale (Health & Saf. Code, § 11351). In a bifurcated
trial, the trial court also found true the enhancement allegations that defendant suffered a
prior conviction in 2004 (Health & Saf. Code, § 11370.2); a prior prison term (Pen. Code,
§ 667.5, subd. (b))1; and a prior serious or violent felony conviction (§§ 667, subd.
(e)(1)). The trial court sentenced defendant to an aggregate term of seven years in state
prison.
Defendant contends his trial attorney committed ineffective assistance of counsel
(IAC) by (1) failing to object to expert opinion testimony on whether defendant
possessed heroin for sale; (2) stipulating to allowing the prosecution to search his two cell
phones and photograph text messages found on the phones; and (3) failing to object to the
prosecution introducing into evidence the California Law Enforcement
Telecommunication Systems (CLETS) report. In addition, defendant argues the trial
court committed prejudicial error by failing sua sponte to give the jury CALCRIM No.
225, and abused its discretion in denying defendant’s motion to strike his 2004 prior
felony conviction under People v. Superior Court (Romero) (1996) 13 Cal. 4th 497
(Romero motion). Finally, defendant contends cumulative error supports reversal of his
convictions. We reject defendant’s contentions and affirm the judgment.
1 Unless otherwise noted, all statutory references are to the Penal Code.
2
II
FACTS
While on patrol around 3:00 p.m. on December 26, 2011, sheriff’s department
investigator Jerry Abbott and deputy John Carroll noticed three men sitting on the ground
by a tree, near the roadway. Abbott parked his patrol vehicle nearby and the two officers
walked towards the men from behind them. Abbott initially saw defendant sitting on the
ground with his back to the officers. Abbott was about 10 feet away when he saw
defendant stand up and glance back at the officers. Abbott saw a red glue tube cap
sticking out of the palm of defendant’s hand. Defendant dropped the item on the ground.
The officers walked around the tree and approached defendant from the front.
Defendant kneeled down. He appeared to be attempting to pick up something on the
ground. Abbott saw a black fanny pack on the ground in front of defendant. The officers
told defendant to stand up. As he did so, defendant handed the fanny pack to Carroll,
stating, “‘You can search it. I have nothing.’” The officers looked through the bag and
found two cell phones, a black and white notebook containing a “pay/owe sheet”
(ledger), a bag of rubber bands, and about $360 in different denominations. Defendant
told Abbott the two cell phones were his.
When searching the area where defendant had been sitting, Carroll found a red
Super Glue tube on the ground. Inside the tube were two bindles of heroin. The parties
stipulated the officers found two bindles of heroin weighing .12 and .09 grams inside the
glue tube and each bindle contained a usable amount. The officers did not find anything
3
else in the area and defendant did not appear to be under the influence. Defendant was
placed under arrest and transported to the station.
After arriving at the station about 30 minutes later, defendant’s two cell phones
began ringing. Within a five-minute period, they rang at least 10 times. Abbott answered
the phones. During the first call, someone identified himself as Big Sapo. Abbott asked
him what he needed. Big Sapo said, “I need three” and he wanted “three tadpoles.”
Based on Abbott’s expertise as an undercover narcotics officer, he concluded this meant
the caller wanted three bindles of heroin. The second caller identified herself as Christa
and said she needed two. Abbott believed this meant she wanted two bindles of heroin.
Narcotics detective Matthew Lackey testified defendant possessed the heroin for
sale. Lackey said he based his expert opinion testimony on the presence of heroin, the
relatively large amount of cash in various denominations found in defendant’s pocket,
and the fact defendant was not under the influence or in possession of any drug
paraphernalia. Lackey believed the large amount of cash in defendant’s possession was
proceeds from defendant’s heroin sales earlier that day. Lackey also relied on evidence
of the incoming calls Abbott received from Big Sapo and Christa, who Lackey believed
were purchasers calling defendant for heroin. In addition, Lackey testified the ledger was
a record keeping log of defendant’s drug sales. He used the ledger “to ensure he’s not
losing money and he knows who owes him and he knows who he sold to.” The name
Sap was in the ledger. Lackey believed Sap referred to Big Sapo. Lackey testified that
the numerous calls on defendant’s cell phones and the large number of names and entries
in defendant’s ledger indicated defendant had a large volume business selling heroin.
4
In concluding defendant was in possession of heroin for sale, Lackey also relied
on evidence there were close to 10 text messages on the two phones. The texts
referenced defendant’s name and contained drug sales terms, such as “re-upping,” which
meant “out of a quantity”, and “[v]ente,” which was a common street term for $20 worth
of heroin. The text message, “Let me know when you got something” was a common
phrase for “Let me know when you’re holding” or when “you have some product.” The
text messages, “Need something” and “Rather get your stuff” were also drug related.
Lackey testified the text message, “You said you would be open,” meant defendant was
not in his usual location with drugs when the texter was looking for him. Also, the text,
“I want three, Ted wants two,” was an order for heroin.
Lackey explained that the text messages indicated defendant’s heroin sales
business required him to be at a certain location selling heroin or his customers would get
sick. Defendant’s usual time for sales was not 2:00 or 3:00 p.m., when defendant was
arrested. By that time, numerous sales had already been made. When asked if Lackey
believed defendant nevertheless still possessed the heroin for sale when defendant was
arrested, Lackey replied, “Without a doubt. I just think Investigator Abbott was late.”
Lackey said he did not believe defendant possessed the heroin for personal use, although
Lackey acknowledged someone who sells drugs can also be a user.
5
III
EXPERT TESTIMONY ON POSSESSION OF HEROIN
Defendant contends his attorney’s failure to object to opinion testimony offered by
the prosecution’s expert witness, law enforcement narcotics detective Matthew Lackey,
violated his Sixth Amendment right to effective assistance of counsel.
A. Law Applicable to IAC Claims
Reversal of a conviction based on IAC requires proof that: (1) counsel’s
performance was deficient when measured against the standard of a reasonably
competent attorney, and (2) counsel’s deficient performance so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result. This court must presume counsel’s conduct fell within the wide
range of reasonable professional assistance and accord great deference to counsel’s
tactical decisions. (In re Crew (2011) 52 Cal. 4th 126, 150 (Crew); People v. Lewis
(2001) 25 Cal. 4th 610, 674 (Lewis).) If an IAC claim can be determined on the ground of
lack of prejudice, a court need not decide whether counsel’s performance was deficient.
(Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland), Crew, at p. 150.)
Because it is inappropriate for a reviewing court to speculate about the tactical
reasons for counsel’s actions, when the reasons are not readily apparent in the record, the
court will not reverse unless the record discloses no conceivable tactical purpose. (Lewis,
supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light on the reasons for
counsel’s actions, a claim of IAC is more appropriately decided in a habeas corpus
proceeding. (People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266-267.)
6
B. Admissible Expert Testimony on Possession for Sale of Heroin
Defense counsel’s failure to object to Lackey’s expert testimony did not constitute
deficient performance when measured against the standard of a reasonably competent
attorney, because Lackey’s testimony was admissible expert testimony.
“As a general rule, the opinion of an expert is admissible when it is ‘[r]elated to a
subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact . . . .’ (Evid. Code, § 801, subd. (a).) Additionally, in
California: ‘Testimony in the form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be decided by the trier of fact.’
(Evid. Code, § 805.)” (Summers v. A. L. Gilbert Co. (1999) 69 Cal. App. 4th 1155, 1178
(Summers); in accord, People v. Vang (2011) 52 Cal. 4th 1038, 1048 (Vang).)
Although expert testimony is generally inadmissible on common topics jurors of
ordinary knowledge and education could decide as intelligently as an expert, “an expert
may testify on a subject about which jurors are not completely ignorant. [Citations.] In
determining the admissibility of expert testimony, ‘the pertinent question is whether,
even if jurors have some knowledge of the subject matter, expert opinion testimony
would assist the jury.’ [Citations.]” (People v. Lindberg (2008) 45 Cal. 4th 1, 45.) We
review the trial court’s decision to admit or exclude evidence for abuse of discretion.
(People v. Vieira (2005) 35 Cal. 4th 264, 292.)
As explained by Justice Mosk in People v. Bassett (1968) 69 Cal. 2d 122, 141:
“‘The chief value of an expert’s testimony . . . rests upon the material from which his
opinion is fashioned and the reasoning by which he progresses from his material to his
7
conclusion . . . it does not lie in his mere expression of conclusion.’ (Italics added.)
[Citation.] In short, ‘Expert evidence is really an argument of an expert to the court, and
is valuable only in regard to the proof of the facts and the validity of the reasons
advanced for the conclusions’ (Italics added.) [Citations.]” (In accord, People v. Hunt
(1971) 4 Cal. 3d 231, 237 (Hunt).)
Here, defendant challenges Lackey’s expert opinion testimony regarding the
charged offense of possession of heroin for sale. To secure a conviction for possession
for sale of a controlled substance, the prosecution must prove beyond a reasonable doubt
that the defendant possessed a controlled substance in an amount sufficient to be used
“for sale or consumption as a controlled substance,” and that the defendant had the
specific intent to sell it. (People v. Parra (1999) 70 Cal. App. 4th 222, 225-226 (Parra).)
“‘Intent is rarely susceptible of direct proof and usually must be inferred from the facts
and circumstances surrounding the offense.’ [Citation.] ‘Evidence of a defendant’s state
of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as
direct evidence to support a conviction.’ [Citation.]” (People v. Rios (2013) 222
Cal. App. 4th 542, 567-568; People v. Harris (2000) 83 Cal. App. 4th 371, 374 (Harris)
[intent to sell controlled substance may be established by circumstantial evidence].)
The testimony of a qualified narcotics expert is sufficient to support a finding that
a controlled substance was possessed with the intent to sell. (People v. Newman (1971) 5
Cal. 3d 48, 53, disapproved on other grounds in People v. Daniels (1975) 14 Cal. 3d 857,
861; see Parra, supra, 70 Cal.App.4th at p. 227 [opinion based on quantity and lack of
drug paraphernalia constitutes substantial evidence of intent]; Harris, supra, 83
8
Cal.App.4th at pp. 374-375 [opinion based on quantity of marijuana and
methamphetamines; manner drugs were transported; and quantity of postage stamps,
which were typically used as currency to purchase drugs]; People v. Carter (1997) 55
Cal. App. 4th 1376, 1377-1378 [opinion based on quantity of rock cocaine]; People v.
Peck (1996) 52 Cal. App. 4th 351, 357 [opinion based on quantity of marijuana].)
In cases involving heroin possession, “it is settled that an officer with experience
in the narcotics field may give his opinion that the narcotics are held for purposes of sale
based upon matters such as quantity, packaging, and the normal use of an individual. On
the basis of such testimony convictions of possession for purposes of sale have been
upheld. [Citations.]” (Hunt, supra, 4 Cal.3d at p. 237.) This is because, “[i]n the heroin
and marijuana situations, the officer experienced in the narcotics field is experienced with
the habits of both those who possess for their own use and those who possess for sale
because both groups are engaged in unlawful conduct.” (Ibid.)
The prosecution’s narcotics expert, Lackey, testified after hearing investigators
Abbott and Furtado testify. He concluded that, although possessing $375 in twenties,
tens, fives and ones, “is not a crime and the denominations are not illegal, when you add
in everything, the fact that the defendant possessed that money while sitting in a field
with heroin, I believe that those are proceeds from the sales of heroin.” Lackey further
testified that he believed defendant had only two small packages of heroin in his
possession because “most of the sales were completed for the day, . . . And I don’t base
that solely on the money or the heroin. Those could probably go either way. It’s a small
quantity and a large quantity of money. It probably doesn’t seem like a lot, but for these
9
purposes, it’s a lot of money. [¶] I base it on the text messages and I base it on the book
[ledger] that the defendant has a clear business that he needs to be at a certain time or
people get sick. . . . I think Detective Abbott arrested the defendant after numerous sales
were made.”
Defendant argues his attorney committed IAC by not objecting to Lackey’s expert
testimony on grounds Lackey expressed an opinion on whether a crime was committed
and whether defendant was guilty of the charged offense. Defendant also asserts Lackey
improperly commented on defendant’s state of mind by testifying he believed defendant
possessed heroin for sale, and then stating in detail the evidence upon which he based his
opinion.
“A witness may not express an opinion on a defendant’s guilt. [Citations.] The
reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion
testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or
innocence are inadmissible because they are of no assistance to the trier of fact. To put it
another way, the trier of fact is as competent as the witness to weigh the evidence and
draw a conclusion on the issue of guilt.’” (People v. Coffman and Marlow (2004) 34
Cal. 4th 1, 77; in accord, Vang, supra, 52 Cal.4th at p. 1048; Summers, supra, 69
Cal.App.4th at p. 1183.) It is also improper for an expert witness to express an opinion as
to whether a crime has been committed. (People v. Torres (1995) 33 Cal. App. 4th 37, 47
(Torres).)
Here, Lackey did not testify that he believed defendant was guilty or merely
express a general opinion as to whether a crime was committed. Rather, he testified
10
regarding specific circumstances and conduct, which Lackey believed, based on his law
enforcement experience, indicated defendant was selling heroin. (Hunt, supra, 4 Cal.3d
at p. 237.) Lackey’s insight and awareness of facts and circumstances indicating drug
sales activity, was generally beyond that of a lay person and therefore was helpful to the
jury in determining whether there was sufficient circumstantial evidence to find that
defendant possessed heroin for sale, as opposed to mere possession, and had the requisite
specific intent to sell heroin. Lackey’s expert opinion testimony did not usurp the fact
finders’ function. Rather, it assisted the fact finder in providing insight into the
significance of evidence supporting a finding of possession of heroin for sale. As
instructed by the court, the jurors were not required to accept Lackey’s expert opinion,
and could form their own opinion based on the evidence presented.
Defendant’s reliance on Torres, supra, 33 Cal. App. 4th 37, for the proposition
Lackey improperly testified defendant was guilty of the charged offense, is misplaced.
Torres is distinguishable in that the Torres defendant was charged with robbery and
murder, not possession for sale of a controlled substance. Defendant’s drug-related crime
involved facts beyond the common experience and knowledge of a lay person. A lay
person might not understand or appreciate the significance and meaning of coded
language used during the phone calls to defendant, in the texts found on defendant’s cell
phones, and his ledger of sales. Likewise, a lay person might not be aware of the
significance of various activities and circumstances common to heroin sales. Lackey’s
opinion testimony assisted the jury in this regard in determining whether defendant was
involved in the sale of heroin.
11
Furthermore, the improper expert testimony in Torres was by a police officer
testifying as to the legal meaning of the terms “robbery” and “extortion,” which usurped
the province of the judge. (Torres, supra, 33 Cal.App.4th at pp. 45-46.) In the instant
case, Lackey did not define any legal terms. In addition, in Torres, the court held the
police officer’s testimony, that the defendant had engaged in robbery, was tantamount to
stating defendant was guilty of robbery and first degree felony murder. (Id. at pp. 42, 46-
47.)
Lackey did not similarly testify directly to guilt. Although he indicated he
believed defendant possessed heroin for sale, he provided additional testimony
enumerating the various factors and circumstances leading him to believe this. He relied
on evidence that a lay person might not have realized supported a finding of intent to sell
heroin. His testimony therefore was admissible, even though it encompassed ultimate
issues, because it concerned matters beyond common experience, that might assist the
jury in determining whether defendant possessed the heroin with intent to sell it. (Vang,
supra, 52 Cal.4th at p. 1048; People v. McDonald (1984) 37 Cal. 3d 351, 371, overruled
on other grounds in People v. Mendoza (2000) 23 Cal. 4th 896, 914; People v. Valdez
(1997) 58 Cal. App. 4th 494, 506; Evid. Code, § 801, subd. (a).) We conclude defense
counsel could have reasonably declined to object to Lackey’s expert testimony because it
was proper and not likely to be excluded. Defendant therefore has not established that his
attorney’s failure to object to Lackey’s testimony constituted IAC.
12
IV
SEARCH OF DEFENDANT’S CELL PHONES
Defendant contends he received ineffective representation or, alternatively,
defense counsel exceeded his authority by waiving defendant’s Fourth Amendment
rights, when his trial attorney stipulated to the prosecution searching text messages on
defendant’s two cell phones and photographing the text messages. We conclude
defendant has not established IAC.
At a trial readiness conference on June 27, 2012, defense counsel, who was
standing in for defendant’s trial attorney, told the court that defendant’s trial attorney and
defendant stipulated that the district attorney investigator “can go to the property room
where the two cell phones were booked into evidence and can go into those cell phones to
retrieve text messages and to ascertain the telephone numbers that belong to those
numbers so we can find out who they belong to. If the Court can make an order so that
we can go do that.” In response, the trial court asked, “That has already been stipulated
to; correct?” Defense counsel stated, “Yes.” The trial court then agreed to “order that
pursuant to the stipulation on Mr. Quinones’ matter, that the district attorney is allowed to
obtain any cell phones from the property of Mr. Quinones so they can review the phone
numbers, registered users, and text messages. [¶] . . . [¶] . . . And to take photographs of
the text messages.” The trial court again inquired, “That is pursuant to the previous
stipulation?” Defense counsel confirmed the order was “fine.”
Defendant was present and did not object to defense counsel’s representations
regarding the stipulation or to the trial court ordering, pursuant to the stipulation, the
13
prosecutor reviewing the phone numbers, registered users, and text messages on
defendant’s two cell phones, and also photographing the text messages. The hearing
minute order states that defendant was present at the June 27, 2012 hearing, he was
represented by counsel, and counsel stipulated that the prosecution was permitted to
obtain defendant’s cell phones to review phone numbers and texts, and was allowed to
take photographs of them.
Citing Riley v. California (2014) 134 S. Ct. 2473, defendant argues that the
warrantless search of his cell phones violated his Fourth Amendment guarantee against
unreasonable search and seizure. In Riley, the United States Supreme Court held that a
warrant is generally required before searching a cell phone for data, even if the phone is
seized incident to arrest. The Riley court concluded interests in protecting the officers’
safety and preventing destruction of evidence did not justify dispensing with the warrant
requirement for searches of cell phone data. (Id. at pp. 2493-2495.) Riley is not
dispositive because in the instant case there is substantial evidence that defendant
personally waived his Fourth Amendment rights against unreasonable searches of his cell
phones.
Defendant argues the record does not clearly establish defendant knowingly and
intelligently waived his Fourth Amendment rights against search and seizure of his cell
phones. In People v. Bravo (1987) 43 Cal. 3d 600 (Bravo), the Supreme Court rejected
the argument that a probation condition waiving Fourth Amendment search and seizure
protections should be narrowly construed. The court noted that case law applies a strict
standard to waivers of constitutional rights generally but does not strictly construe
14
waivers of Fourth Amendment protection, such as consent to searches. (Id. at pp. 606-
607; in accord, In re Curtis T. (1989) 214 Cal. App. 3d 1391, 1395 (Curtis T.)
The Bravo court relied on Schneckloth v. Bustamonte (1973) 412 U.S. 218
(Schneckloth), in which the United States Supreme Court stated: “There is a vast
difference between those rights that protect a fair criminal trial and the rights guaranteed
under the Fourth Amendment. Nothing, either in the purposes behind requiring a
‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a
requirement suggests that it ought to be extended to the constitutional guarantee against
unreasonable searches and seizures. [¶] A strict standard of waiver has been applied to
those rights guaranteed to a criminal defendant to insure that he will be accorded the
greatest possible opportunity to utilize every facet of the constitutional model of a fair
criminal trial. Any trial conducted in derogation of that model leaves open the possibility
that the trial reached an unfair result precisely because all the protections specified in the
Constitution were not provided. . . .
“The protections of the Fourth Amendment are of a wholly different order, and
have nothing whatever to do with promoting the fair ascertainment of truth at a criminal
trial. . . . The guarantees of the Fourth Amendment stand ‘as a protection of quite
different constitutional values—values reflecting the concern of our society for the right
of each individual to be let alone. . . .’ [Citation.] [¶] Nor can it even be said that a
search, as opposed to an eventual trial, is somehow ‘unfair’ if a person consents to a
search. . . . And, unlike those constitutional guarantees that protect a defendant at trial, it
15
cannot be said every reasonable presumption ought to be indulged against voluntary
relinquishment.” (Schneckloth, supra, 412 U.S. at pp. 241-243.)
Relying on Schneckloth, the California Supreme Court in Bravo, supra, 43 Cal. 3d
600 concluded the strict test of waiver and principles of narrow construction have no
application in determining the scope of the defendant’s consent to search given as a
condition to the grant of probation. The Bravo court instead interpreted the defendant’s
waiver of his Fourth Amendment rights on the basis of an objective test. (Id. at pp. 606-
607; in accord, Curtis T., supra, 214 Cal.App.3d at p. 1396.) Bravo and Schneckloth
support the proposition that “a strict and formal waiver of Fourth Amendment rights is
not required as a prerequisite in obtaining consent to allow a search.” (Curtis T., at p.
1397.) In the instant case, the record shows that defendant personally agreed to allow the
prosecution to review the phone numbers and text messages on defendant’s two cell
phones, and also to photograph the text messages on the phones. Defendant was present
when his attorney told the court defendant had personally agreed to the cell phone
stipulation, and defendant did not object or disagree.
Under such circumstances, in which defendant’s attorney informed the court, in
defendant’s presence, that defendant had personally stipulated to the prosecution looking
at his phones and photographing text messages, we conclude the record provides
sufficient evidence establishing that defendant intentionally and knowingly waived his
Fourth Amendment search and seizure rights to his cell phones. (Brewer v. Williams
(1977) 430 U.S. 387, 404.) Defendant’s attorney therefore did not commit IAC by not
16
objecting to the prosecution having access to defendant’s two cell phones, reviewing text
messages on the phones, and photographing the text messages.
We also reject defendant’s alternative contention his trial attorney exceeded his
authority by waiving defendant’s Fourth Amendment rights. The record not only shows
defendant personally waived his Fourth Amendment rights but, in addition, there is no
showing of prejudice. Even assuming under Riley, the prosecution could not legally
search defendant’s phones without a warrant, it is highly probable the trial court would
have granted the prosecution a warrant to search defendant’s cell phones, if requested. In
turn, the same evidence would have been introduced at trial and defendant would have
received the same verdict. (Strickland, supra, 466 U.S. at p. 697.)
Issuance of a search warrant requires “‘a substantial basis for concluding a fair
probability existed that a search would uncover wrongdoing.’” (People v.
Carrington (2009) 47 Cal. 4th 145, 161, quoting People v. Kraft (2000) 23 Cal. 4th 978,
1040.) In determining whether to grant a warrant, the issuing magistrate must consider
whether, “given all the circumstances set forth in the affidavit before him [or her],
including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238; in accord,
Carrington, at p. 161.) We give deferential review to this determination of probable
cause. (Ibid.)
Here, the prosecution had ample evidence to support a search warrant for
defendant’s cell phones. Defendant admitted the fanny pack and cell phones found inside
17
the fanny pack belonged to him. Defendant was also observed holding the glue tube
containing two bindles of heroin, and the ledger book found nearby also supported a
finding defendant was selling narcotics. The totality of the evidence, apart from the
phone evidence, indicated there was a high probability defendant was using the phones to
sell heroin. The evidence was thus more than sufficient to support a search warrant for
defendant’s two cell phones, to allow the prosecution to search the phones for evidence
defendant was selling heroin.
Any failure by defense counsel to object to allowing the prosecution to search
defendant’s cell phones or any improper waiver of defendant’s Fourth Amendment
search and seizure rights, was harmless error because it is highly probable the trial court
would have granted a search warrant, allowing the prosecution to search defendant’s cell
phones, had defendant and his attorney not consented to the search.
V
CALCRIM INSTRUCTION NO. 225
Defendant contends the trial court’s failure to give sua sponte CALCRIM No. 225
violated his due process right to a properly instructed jury, to present a complete defense,
and to a fair trial. Alternatively, defendant argues his attorney provided IAC by not
requesting CALCRIM No. 225. Defendant argues that the failure to give CALCRIM No.
225 was prejudicial because it allowed the jury to find him guilty without finding he had
the required special intent to sell the heroin. Defendant asserts the jury could have
concluded the heroin was possessed for use, without finding defendant harbored the
specific intent to sell it at the time of the offense. We disagree. The totality of the
18
instructions, in the absence of CALCRIM No. 225, sufficiently instructed the jury on the
element of specific intent based on circumstantial evidence.
The parties did not request, and the trial court did not give, CALCRIM No. 225,
which states that the People must prove not only that the defendant did the act charged,
but also that the defendant acted with a particular intent, as defined by the instruction for
the charged crime. The instruction further states that intent may be proved by
circumstantial evidence and that, before the jury may rely on circumstantial evidence, the
jury must be convinced that the People proved each fact essential to that conclusion
beyond a reasonable doubt. If the jury can draw two or more reasonable conclusions
from the circumstantial evidence, the jury must conclude that the required intent was not
proved by the circumstantial evidence.
The Bench Notes for CALCRIM No. 225 state: “The court has a sua sponte duty
to instruct on how to evaluate circumstantial evidence if the prosecution substantially
relies on circumstantial evidence to establish the element of a specific intent or a mental
state. [Citation.] [¶] Give this instruction when the defendant’s intent or mental state is
the only element of the offense that rests substantially or entirely on circumstantial
evidence. If other elements of the offense also rest substantially or entirely on
circumstantial evidence, do not give this instruction. Give CALCRIM No. 224,
Circumstantial Evidence: Sufficiency of Evidence. [Citations.]” The Bench Notes for
CALCRIM No. 224 state: “If intent is the only element proved by circumstantial
evidence, do not give this instruction. Give CALCRIM No. 225, Circumstantial
Evidence: Intent or Mental State. [Citation.]”
19
This court determines whether a jury instruction correctly states the law under the
de novo standard of review. (People v. Ramos (2008) 163 Cal. App. 4th 1082, 1088
(Ramos).) “Review of the adequacy of instructions is based on whether the trial court
‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In determining whether
error has been committed in giving or not giving jury instructions, we must consider the
instructions as a whole . . . [and] assume that the jurors are intelligent persons and
capable of understanding and correlating all jury instructions which are given.”
[Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support
the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.’ [Citation.]” (Ibid.)
Construed in light of these principles, and in the context of the instructions as a
whole, the absence of CALCRIM No. 225 does not constitute prejudicial error. (Ramos,
supra, 163 Cal.App.4th at p. 1088.) The trial court sufficiently instructed the jury on
determination of the specific intent element based on circumstantial evidence. The court
gave CALCRIM Nos. 223 (circumstantial evidence defined), 224 (circumstantial
evidence; sufficiency of evidence), and 251 (union of act and intent; specific intent or
mental state). Instruction on intent was also provided in CALCRIM Nos. 2302 (elements
of the charged crime, possession of a controlled substance for sale) and 2304 (elements of
the lesser included offense, possession of a controlled substance).
Even assuming the trial court erred in not giving sua sponte CALCRIM No. 225
(People v. Hughes (2002) 27 Cal. 4th 287, 347), any such error was harmless error under
People v. Breverman (1998) 19 Cal. 4th 142, 178, because the instructions, as a whole,
20
adequately instructed the jury regarding finding specific intent based on circumstantial
evidence. It is not reasonably probable defendant would have obtained a more favorable
outcome had the trial court given CALCRIM No. 225 instead of CALCRIM No. 224.
We reject defendant’s IAC challenge for the same reason: defendant was not prejudiced
by the court not giving CALCRIM No. 225. There is not a reasonable probability that the
outcome would have been more favorable, had defense counsel requested CALCRIM No.
225. (Crew, supra, 52 Cal.4th at p. 150.)
VI
ADMISSIBILITY OF CLETS REPORT
Defendant asserts he received ineffective representation when his attorney failed
to object to the prosecutor introducing into evidence a CLETS report to prove
defendant’s 2004 prior conviction allegation under Health and Safety Code section
11370.2, subdivision (a).
A. Background Facts and Procedure
During a bifurcated court trial on sentence enhancements, the trial court heard
testimony and reviewed evidence concerning the special allegation that defendant
previously served prison sentences under sections 667 and 667.5, and was convicted of
three prior crimes, including violating Health and Safety Code section 11351 in 2004.
District Attorney Forensic Technician Linda Risaliti testified she assisted attorneys with
preparing for trials, including processing fingerprint, photograph, and fingerprint
comparison evidence. Risaliti had training on how to review 969b packets and had
testified in court regarding 969b packets over 70 times. Risaliti explained that a 969b
21
packet consists of documents and paperwork on an individual that has been sentenced to
prison. Risaliti stated she had reviewed two prison packets (969b packets) relating to
defendant’s convictions in 1992 and 2010 for violating sections 459 and 666 (exhs. 3 and
4). Risaliti was shown the two 969b packets in court, and compared the fingerprints in
the 969b packets with a ten print fingerprint card of defendant’s fingerprints. Risaliti
testified the fingerprints on the fingerprint card matched those in the two 969b packets.
The prosecutor also requested admission into evidence of a copy of the CLETS
report (exh. 2), containing defendant’s criminal history. Defense counsel stated he had
no objection, and the CLETS report was received into evidence. The prosecutor
described the CLETS report as a certified rap sheet belonging to defendant and noted the
California Department of Corrections (CDC) number listed on the rap sheet matched
defendant’s CDC number on the 969b packets. The CLETS report shows defendant pled
guilty on July 26, 2004, and was convicted of violating Health and Safety Code section
11351. The CLETS report included a signed statement, dated the same day as the
bifurcated trial on defendant’s priors, certifying that the CLETS report was a true and
original document received from CLETS by the district attorney’s records section.
Defense counsel declined to provide any argument refuting that defendant suffered
a section 11351 conviction in 2004. After counsel submitted on the matter, the trial court
found defendant suffered the 2004 conviction and therefore found true the section
11370.2, subdivision (a), prior conviction sentence enhancement allegation.
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B. Discussion
Defendant argues his trial attorney’s failure to object to the trial court admitting
into evidence the CLETS report constituted IAC because the CLETS report was
inadmissible hearsay evidence, the section 969b hearsay exception does not apply to a
CLETS report, and the CLETS report was the only evidence supporting defendant’s
sentence enhancement based on his 2004 prior conviction.
Section 969b provides in relevant part: “For the purpose of establishing prima
facie evidence of the fact that a person being tried for a crime or public offense under the
laws of this State has been convicted of an act punishable by imprisonment in a state
prison, county jail or city jail of this State, and has served a term therefore in any penal
institution, . . . the records or copies of records of any state penitentiary, reformatory,
county jail, city jail, or federal penitentiary in which such person has been imprisoned,
when such records or copies thereof have been certified by the official custodian of such
records, may be introduced as such evidence.”
Section 969b “is essentially a ‘hearsay exception’ that allows certified copies of
the specified records ‘to be used for the truth of the matter asserted in those records,’ i.e.,
that a person served a prison term for a prior conviction. [Citation.] However, section
969b ‘“is permissive and not mandatory. . . . [I]t does not restrict the People from using
other forms of proof . . .” to establish the fact of previous imprisonment. [Citation.]’
[Citation.]” (People v. Martinez (2000) 22 Cal. 4th 106, 116 (Martinez).)
Section 969b is inapplicable to a CLETS report because the CLETS report is not a
record from a state penitentiary, reformatory, county jail, city jail, or federal penitentiary.
23
Nevertheless, it is admissible to establish a prison prior if it satisfies applicable rules of
admissibility, such as the official records hearsay exception (Evid. Code, § 1280;
Martinez, supra, 22 Cal.4th at p. 116.) In Martinez, the court rejected defendant’s
argument that, by not referring to CLETS and other criminal records data banks in
enacting or amending several statutes expressly dealing with the use of computer records,
the Legislature indicated CLETS records could not be used as evidence of prior
convictions and service of prior prison terms. (Martinez, at p. 119.)
Evidence Code section 1280 defines the official records hearsay exception as
follows: “Evidence of a writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to
prove the act, condition, or event if all of the following applies: [¶] (a) The writing was
made by and within the scope of duty of a public employee. [¶] (b) The writing was
made at or near the time of the act, condition, or event. [¶] (c) The sources of
information and method and time of preparation were such as to indicate its
trustworthiness.” “A trial court has broad discretion in determining whether a party has
established these foundational requirements. [Citation.]” (Martinez, supra, 22 Cal.4th at
p. 120.) A reviewing court may overturn the trial court’s exercise of discretion “‘“only
upon a clear showing of abuse.”’ [Citations.]” (Ibid.) The trial court’s ruling on
admissibility in the instant case implies that, whatever finding of fact is prerequisite to
applying the hearsay exception, a separate or formal finding was unnecessary. (Evid.
Code, § 402, subd. (c); Martinez, at p. 120.)
24
Unlike the business records hearsay exception (Evid. Code, § 1271), the official
records hearsay exception “‘permits the court to admit an official record or report without
necessarily requiring a witness to testify as to its identity and mode of preparation if the
court takes judicial notice or if sufficient independent evidence shows that the record or
report was prepared in such a manner as to assure its trustworthiness.’” (Martinez, supra,
22 Cal.4th at p. 129, quoting the Cal. Law Revision Com. com., reprinted at 29B pt. 4
West’s Ann. Evid. Code (1995 ed.) foll. § 1280, p. 347.)
In the instant case, defendant argues the official records hearsay exception (Evid.
Code, § 1280) was inapplicable to the CLETS report because the prosecution did not
establish the third element of the official records hearsay exception, which requires a
showing of its trustworthiness. (Evid. Code, § 1280, subd. (c).) But People v. Dunlap
(1993) 18 Cal. App. 4th 1468 and Martinez support the proposition defendant’s certified
CLETS report was admissible under the official records hearsay exception because it is a
trustworthy document. In Dunlap, the court held a certified CLETS report was
admissible under the official records hearsay exception, even though there was no
testimony regarding preparation of the printout, based on “the presumption that official
duty was regularly performed to satisfy itself that the record was sufficiently
trustworthy.” (Id. at p. 1480.)
Martinez also supports the proposition the certified CLETS in the instant case is
admissible. In Martinez, supra, 22 Cal. 4th 106, the Supreme Court held that the trial
court did not abuse its discretion in ruling an uncertified CLETS report was admissible
under the official records hearsay exception. (Id. at pp. 129, 134.) The Martinez court
25
based its holding in part on the fact the trial court could take judicial notice of the statutes
that require public entities, such as the DOJ, Attorney General, and local law enforcement
agencies, to report and record dates of crimes and convictions. (Martinez, supra, 22
Cal.4th at pp. 121-125.) Those statutes (§§ 11101, 11104, 11105, 11107, 11115-11117,
13100, 13125, 13150-13152, 13175-13176; CLETS statutes, Gov. Code, §§ 15150-
15167) “establish that the sources of the information in the CLETS printout were public
employees of California who had a duty to observe, report, record, and disseminate the
information. . . . Under these statutes, ‘the public employees involved in the recording or
reporting of criminal offender record information in the CLETS system have a duty to
employ methods ensuring a reasonable level of accuracy and reliability.’ [Citation.]”
(Martinez, supra, 22 Cal.4th at pp. 129-130.) The Martinez court also noted that the
Legislature enacted statutes (§§ 11120-11121, 11124, 11126) affording defendants an
opportunity to refute any erroneous or inaccurate criminal history information stated in a
CLETS report. (Martinez, at p. 131.)
In rejecting the Martinez defendant’s contention the CLETS report was not
trustworthy, because it was a government computer record, the Martinez court stated:
“Defendant’s arguments are unpersuasive. First, as we have already explained, in 1971
the Legislature statutorily established a process for review and correction of the criminal
history information in the Department’s possession. (§ 11120 et seq.) . . . Second, our
courts have refused to require, as a prerequisite to admission of computer records,
testimony on the ‘acceptability, accuracy, maintenance, and reliability of . . . computer
hardware and software.’ [Citation.]” (Martinez, supra, 22 Cal.4th at p. 132.)
26
Defendant attempts to distinguish Martinez, by arguing that in Martinez, the
prosecution presented additional evidence establishing the trustworthiness of the CLETS
report, which included testimony by a district attorney paralegal, who generated the
printout. There also was testimony by a deputy sheriff, who had previously questioned
the defendant about his criminal history and to whom the defendant made admissions
consistent with the computer printout. (Martinez, supra, 22 Cal.4th at p. 131.) Although
there was no similar testimony in the instant case establishing trustworthiness of the
CLETS report, it was not required because, unlike in Martinez, the CLETS report was
certified. It contained a certification stamp on the last page, which was signed by a
district attorney records section employee, and the stamp was dated the day the document
was introduced into evidence. Certification of the CLETS report was sufficient to
establish the third element of the official records hearsay exception, without presenting
additional testimony establishing trustworthiness. We therefore reject defendant’s IAC
challenge, since the CLETS report was admissible under the official records hearsay
exception.
VII
ROMERO MOTION
Defendant contends the trial court abused its discretion in denying his Romero
motion to dismiss his 1992 prior serious felony conviction under section 1385. We
disagree.
27
A. Procedural Background and Facts
Defendant was charged with suffering a prior serious felony conviction under
sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). On September
16, 1992, defendant sustained the prior conviction for burglary (§ 459). During a
bifurcated trial on defendant’s prior conviction enhancements, the prosecution presented
evidence establishing the 1992 prior strike conviction (1992 prior) and the trial court
found true the allegation.
Defendant filed a motion under People v. Superior Court (Romero), supra, 13
Cal. 4th 497, requesting the trial court to dismiss his 1992 prior under section 1385,
subdivision (a). Defendant argued doing so was warranted based on the nature and
circumstances of his present and prior felony convictions, and based on his background,
character, and prospects. The prosecution opposed the motion on grounds the 1992 prior
was not remote in relation to defendant’s entire criminal history.
At the hearing on the motion, the trial court acknowledged defendant did not have
a history of committing any violent crimes but he had been unable to restrain himself
from perpetrating crimes. Defendant “can’t seem to stay out of trouble long enough to
prove he can be a law-abiding citizen.” The trial court denied defendant’s Romero
motion, explaining: “[I]t’s a one strike case, and I notice in some of these cases, Mr.
Quinones got 365. He hasn’t suffered much consequence of that strike before in terms of
going to prison. He never seems to learn, and I think the whole spirit of the three strike
law is that the ante goes up when the conduct doesn’t get better. [¶] And so I’m going to
28
deny the motion on that basis. If there had been a long period of time, or this was a [de
]minimis offense, I would consider it. . . .”
B. Applicable Law
Section 1385, subdivision (a), vests the trial court with discretion to dismiss a
qualifying strike conviction in furtherance of justice, but such discretion must be
exercised in strict compliance with section 1385, subdivision (a). (People v. Superior
Court (Romero), supra, 13 Cal.4th at p. 530; People v. Williams (1998) 17 Cal. 4th 148,
158 (Williams).) “[I]n ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes law . . . or in reviewing
such a ruling, the court . . . 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 [three strikes] scheme’s 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.” (Williams, at p. 161.) These factors are commonly referred to as the
“Williams factors.”
We review the trial court’s decision not to dismiss a prior strike allegation under
section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal. 4th 367, 376.)
“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes
the trial court’s power to depart from this norm and requires the court to explicitly justify
its decision to do so. In doing so, the law creates a strong presumption that any sentence
that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . . ‘[I]t
29
is not enough to show that reasonable people might disagree about whether to strike one
or more’ prior conviction allegations. . . . Because the circumstances must be
‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of
the very scheme within which he squarely falls once he commits a strike as part of a long
and continuous criminal record, the continuation of which the law was meant to attack’
[citation], the circumstances where no reasonable people could disagree that the criminal
falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id.
at p. 378.)
C. Discussion
Defendant contends the trial court abused its discretion in failing to dismiss his
1992 prior, which occurred in 1992, 21 years before the trial in the instant case.
Defendant argues the trial court’s decision denying his Romero motion was arbitrary and
irrational because consideration of the Williams factors compelled a finding defendant
did not fall within the spirit of the three strikes law and therefore his 1992 prior
conviction should have been stricken.
With regard to the Williams factors, defendant asserts his present minor,
nonviolent drug offenses, coupled with his drug abuse, do not support a finding he falls
within the spirit of the three strikes law. Defendant also argues he was not the type of
career criminal or flagrant recidivist who poses a danger to society, justifying an
enhanced sentence. The majority of defendant’s prior convictions were nonviolent theft
and drug-related crimes. Defendant suffered only one prior serious felony conviction, the
1992 conviction for first degree burglary. Defendant argues the remoteness of the
30
conviction should operate as a mitigating factor, since his charged offenses were not
particularly egregious. As to defendant’s background, character, and prospects,
defendant states he earned his Generalized Education Development certificate (GED),
went to upholstery trade school, and during the last 15 to 20 years, worked as a
landscaper.
Defendant has not established the trial court abused its discretion in denying his
Romero motion. Defendant has not led a crime-free life after suffering his strike
conviction in 1992. (Williams, supra, 17 Cal.4th at p. 163 [passage of 13 years between
strike offense and new offense not significant given defendant’s failure to refrain from
criminal activity in the interim]; People v. Humphrey (1997) 58 Cal. App. 4th 809, 813
(Humphrey) [trial court abused its discretion by striking 20-year-old prior where
defendant did not subsequently lead a legally blameless life]; People v. Jefferson (2007)
154 Cal. App. 4th 1381, 1388 [declining to strike 22-year-old strike].) Defendant has at
least 15 convictions between 1978 and 2010, resulting in being placed on probation and
incarcerated on numerous occasions. Defendant also violated parole or probation after
the 1992 prior at least six times. In addition, defendant’s 1992 conviction for residential
burglary was one of eight felony convictions defendant committed prior to the charged
offenses, and at the time of the charged crimes in December 2011, defendant was on
parole for committing petty theft with a prior theft related conviction (§ 666).
As the court in Humphrey, supra, 58 Cal.App.4th at page 813, articulately stated
regarding remote prior convictions: “We must add a new category to the list of improper
bases for the striking of a prior. In determining whether a prior conviction is remote, the
31
trial court should not simply consult the Gregorian calendar with blinders on. To be sure,
a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is
sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries
the connotation of a crime-free cleansing period of rehabilitation after a defendant has
had the opportunity to reflect upon the error of his or her ways. Where, as here, the
defendant has led a continuous life of crime after the prior, there has been no ‘washing
out’ and there is simply nothing mitigating about a 20-year-old prior. Phrased otherwise,
the defendant has not lead a ‘legally blameless life’ since the 1976 prior. [Citations.] Far
from being ‘washed out,’ this prior was ‘dyed in.’”
As to defendant’s background, character, and prospects, they also are not
particularly favorable. Defendant has only a tenth grade education and, contrary to
defendant’s statement in his appellant’s opening brief, the probation report states he did
not earn his GED. Although defendant was self-employed as a landscaper, his age of 54
years at the time of sentencing and his physical condition, after abusing drugs since the
age of 14, including heroin since age 16, may limit his prospects of future self-
employment upon release from prison. Furthermore, his lengthy history of recidivism
and substance abuse supports the trial court’s finding that defendant falls within the spirit
of the three strikes law. The record shows the trial considered the Williams factors,
balanced the relevant facts, and did not abuse its broad discretion when denying
defendant’s Romero motion.
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VIII
CUMULATIVE ERROR
Defendant asserts reversal of his convictions is required based on the cumulative
effect of errors collectively undermining the fundamental fairness of his trial and the
reliability of his guilty verdict. Because we have found no errors, defendant’s claim of
cumulative error also fails. (People v. Seaton (2001) 26 Cal. 4th 598, 639.)
IX
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
KING
Acting P. J.
MILLER
J.
33