People v. Ho CA2/3 ( 2014 )

Filed 5/21/14 P. v. Ho CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B243072
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA076741)
v.
JACK DUC HO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Suzette Clover, Judge. Modified and, as modified, affirmed with directions.
Buckley & Buckley and Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Blythe J. Lezskay and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Jack Duc Ho appeals from the judgment entered following his
convictions by jury on count 1 – making premises available for the manufacture of
controlled substances (Health & Saf. Code, § 11366.5, subd. (a)), count 2 – cultivation of
marijuana (Health & Saf. Code, § 11358), and count 3 – theft of utility services worth
more than $400 (Pen. Code, § 498, subds. (b), (d)), following the denial of his
suppression motion (Pen. Code, § 1538.5). The court sentenced appellant to prison for
three years, suspended execution thereof, and placed appellant on formal probation for
three years. We modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal. 4th 1199, 1206), the evidence established on April 28, 2009, Los Angeles County
Sheriff’s Detective Joseph Morales was conducting surveillance of the front house at
2725 Del Mar, and a rear house at 2727 Del Mar, in Rosemead. The two houses were on
one lot in a residential neighborhood. Appellant owned both houses. The rear house
consisted of upper and lower units, and each was accessed through a separate security
door. A carport was between the two houses. While conducting surveillance, Morales
twice saw appellant leave the front house and walk towards the rear house. On one
occasion, a few minutes passed before appellant returned to the front house.
Morales obtained a search warrant for the rear house. About 3:30 p.m. on April
28, 2009, Morales entered the lower unit and saw marijuana, and a marijuana rooting
compound, in the kitchen refrigerator. The lower unit contained documents bearing the
name Thanh Duc Ho (Thanh). Thanh was appellant’s brother. The lower unit also
contained a car key in a shoebox in a closet, and a Southern California Edison (Edison)
electric bill in the name of codefendant Coong Hau.1 The car key was for a Honda Pilot
parked in the carport. The Honda was registered to Thanh and Hau. While Morales was
in the lower unit, he heard a buzzing noise coming from the upstairs unit.
1
Hau is not a party to this appeal.
2
Morales testified the garage contained “marijuana grow products” and a 2008
Mercedes registered to Ji Junjie, Thanh’s girlfriend. The Mercedes contained $70,000 in
cash. The center console of the Honda contained two receipts, one dated July 15, 2008,
for marijuana growing products.
Morales approached the door to the upstairs unit and smelled a slight odor of
marijuana. Morales also testified he was inside the lower unit, or outside, when he first
smelled marijuana. About 5:00 p.m., Morales opened the door to the upstairs unit and the
odor of marijuana was overpowering. The upper unit had six bedrooms, each of which
was a marijuana cultivation room including irrigation, ventilation, and lighting systems.
The rooms’ windows were boarded up with drywall.
The marijuana in each room was at a different growth stage, except marijuana in
one room had been harvested and there were no marijuana plants in that room. Most of
the rooms’ doors were open. There were 968 marijuana plants in the upstairs unit. An
electrical bypass system was installed in the upstairs unit with the result Edison was
providing electricity to the upper unit only and the electricity was not being registered on
the Edison meter. As a consequence, Edison provided electricity worth $14,483 without
compensation. Starting in March 2008, electricity for the rear house was billed to Hau.
A trash can outside the rear house contained trash related to marijuana grow products.
Morales went to the front house and contacted appellant, who was inside. After
obtaining a search warrant, Morales searched the front house and saw a safe containing
appellant’s passport and $20,040, mostly in $100 bills. The dining room contained an
unsigned proposed rental agreement asserting appellant lived in the front house and was
renting the rear house to Hau. Deputies recovered $17,350 hidden in shoes in the
northeast bedroom, $447 on a dining room table, and, on the kitchen table, keys to the
security doors of the upper and lower units of the rear house. The northeast bedroom had
men’s clothing. Deputies found on appellant’s person keys to the upper and lower units
of the rear house, and a key to a van parked at the location. The van had a carpet
cleaning logo.
3
Los Angeles County Sheriff’s Deputy Michael Gaisford, a narcotics expert,
testified as follows. The marijuana in the rear house would produce mature plants in
60 to 90 days, and the harvest would be between 180 to 240 pounds of marijuana with a
value between $486,000 and $768,000. Gaisford opined Thanh was living at the rear
house and was an active participant in marijuana cultivation.
2. Defense Evidence.
In defense, business records for various years reflected Jack Ho Carpet Cleaning
was located at 2725 Del Mar in Rosemead. Lien Ho (Lien), appellant’s daughter,
testified as follows. Appellant had been a carpet cleaner for the last 10 years.
Appellant’s first language was Chinese and he only spoke a few words in English. In
2009, only Hau and Cu Cuu Ho (Lien’s aunt) (not Thanh) lived in the rear house. Lien
did not know what activities were occurring daily in the front and rear houses.
ISSUES
Appellant claims (1) the trial court erroneously denied his Penal Code section
1538.5 suppression motion, (2) the evidence of the money in the front house was
irrelevant and excludable under Evidence Code section 352, (3) insufficient evidence
supported his convictions on counts 1 and 3, (4) the trial court erroneously instructed the
jury as to count 1 that only the distribution of a controlled substance had to be for sale or
distribution, (5) cumulative prejudicial error occurred, (6) Penal Code section 654 barred
punishment except on count 1, and (7) the sentencing minute order must be corrected.
DISCUSSION
1. The Trial Court Properly Denied Appellant’s Suppression Motion.
a. Pertinent Facts.
(1) Suppression Hearing Evidence.
(a) People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Leyba (1981)
29 Cal. 3d 591, 596-597 (Leyba)), the evidence presented at the hearing on appellant’s
Penal Code section 1538.5 suppression motion established as follows. About 3:30 p.m.
4
on April 28, 2009, Morales began executing the search warrant for the rear house and
ultimately found inside nearly 1,000 marijuana plants being cultivated.
The rear house was directly behind the front house. After deputies secured the
rear house, Morales and three other deputies went to the front house and knocked on the
door. Appellant answered. Morales contacted appellant perhaps 15 minutes after
Morales cleared the rear house. At the front house, the deputies’ weapons were drawn
but not pointed at appellant. Appellant’s demeanor was cooperative although he perhaps
was a little nervous.
Morales asked appellant to come outside and he complied. Appellant was not
handcuffed until later, i.e., when he was arrested. Shortly after Morales contacted
appellant, Morales determined appellant did not speak English and Morales summoned a
translator. Morales detained appellant and removed him from the front of the front
house. Deputies conducted a protective sweep of the front house. Appellant was
standing outside the front house, perhaps near the curb. The sweep lasted about a minute.
Appellant was placed in the back of a police car until the translator, Los Angeles
County Sheriff’s Deputy Cong Ha, arrived. Morales testified appellant was in the police
car “probably about maybe 25 minutes” before Ha arrived. Morales interviewed
appellant with Ha translating and, during the interview, only those three were present.
During Morales’s contact with appellant, no guns were drawn on him. Ha Mirandized
appellant in Morales’s presence. Appellant was not under arrest. When Ha gave
appellant the Miranda advisements, appellant was not told he was not under arrest.
During Morales’s interview of appellant through Ha, Morales asked appellant if he
knew the owner of the rear house and appellant said he knew the people back there very
well. The prosecutor asked Morales if appellant indicated “whether or not” appellant
owned the rear house property, and Morales replied appellant eventually did. Appellant
told Morales the resident of the rear house was a family member.
5
Appellant told Morales appellant and Hau were co-owners of a Honda in the
carport between the front and rear houses. At some point while Morales was contacting
appellant, Los Angeles County Sheriff’s Deputy Cabadas showed to Morales a receipt
Cabadas found in the center console of the Honda. The receipt was for hydroponic
equipment and was made out to a person named Sam. Appellant told Morales appellant
lived in the front house. Appellant denied knowing marijuana was being grown in the
rear house. Appellant denied he had anything illegal, or large sums of cash, in the front
house.
Morales asked appellant for consent to search his home for illegal marijuana,
contraband, or contraband consistent with the growth of a large amount of marijuana.
Appellant indicated none of those items would be in his home. Morales commented to
appellant about a consent to search form (form) (People’s exh. No. 3) and Ha translated
those comments. Perhaps 15 minutes after the Miranda advisement, Ha gave the form to
appellant to read. Morales asked Ha to explain what the form was, to ask appellant if he
would give consent to search his home, and to explain to appellant to sign the form if he
gave consent. It took Ha perhaps a minute to translate Morales’s request regarding the
form. Morales saw appellant look at the form but Morales did not know whether
appellant read English. Appellant said it was okay to search his home and, at 4:51 p.m.,
he signed the form.2 The questioning of appellant, including the signing of the form, took
perhaps 15 minutes.
After appellant consented to the search of the front house, deputies entered it and
found what appeared to be more than $10,000 in a bedroom. Morales suspended the
search and, based on the previous events, prepared a search warrant for the front house.
2
During recross-examination of Morales at trial, appellant played a video (defense
exh. A) depicting appellant sitting on a fence with his hands handcuffed. After reviewing
the video, Morales conceded appellant had to have been handcuffed by 4:04 p.m., and
4:04 p.m. was not after the time he had signed the consent to search form. We note
Morales did not then testify whether the handcuffs were removed at the scene sometime
after 4:04 p.m.
6
Before Morales obtained this second warrant, appellant was arrested and handcuffed.
Morales searched appellant incident to his arrest and found in appellant’s pocket, inter
alia, keys to the rear house. Morales obtained the second warrant and executed it.
Deputies found inside the front house various items discussed in the Factual Summary.
Ha testified as follows. Ha was a county certified translator of Cantonese. When
Ha contacted appellant, appellant was sitting in the back of a marked patrol car.
Appellant was calm. Ha was certain appellant was not handcuffed. Ha had no difficulty
communicating with appellant in Cantonese. Ha read appellant his Miranda rights in
English, then translated them into Cantonese. Ha obtained a response from appellant to
each question. Appellant agreed to speak with Morales and Ha.
Ha read the consent to search form to appellant in English, then translated in
Cantonese. Appellant had no questions once Ha translated the form. Ha indicated to
appellant to sign the form if appellant agreed to it. Ha asked appellant if appellant would
be willing to give his consent to search. Appellant replied he had nothing to hide and
appellant gave his consent. Ha was certain appellant was not handcuffed when he signed
the form, because appellant’s hands were free when he signed.3 Ha never indicated to
appellant he had a right to refuse to consent to search.
In defense, appellant, through a court interpreter, testified at the hearing as
follows. Appellant spoke Cantonese and a dialect called Hakka. Appellant answered the
door and two deputies were there. One had a gun and the other had a long-barreled gun.
Appellant was afraid. Appellant exited the house, deputies asked him something, but
appellant did not understand what they were saying. Appellant said yes and was asked to
sign a document. Appellant signed it, deputies searched him, then deputies handcuffed
3
During cross-examination, appellant showed Ha a video (defense Exh. A1),
depicting appellant handcuffed at a time appellant’s counsel represented was 4:04 p.m.
Ha testified that based on the video it was “possible” appellant was handcuffed when Ha
arrived.
7
him and further searched him at the door. The deputies spoke in English and appellant
did not understand them.
Deputies asked appellant to sit nearby and he sat 10 minutes. Deputies already
had entered appellant’s house. Appellant saw a few deputies around. Appellant was
seated in the patrol car and remained there about 15 minutes until Ha arrived. Ha told
appellant to exit the car. Appellant did not understand Ha’s Miranda advisements. Ha
talked with appellant 10 to 20 minutes and, during that time, appellant was afraid.
Appellant believed he had to answer the questions and did not understand various terms
on the consent to search form. Appellant denied remembering Ha reading the form in
English and translating it to Cantonese.
Appellant had been in the United States about 32 years. As of April 28, 2009, he
had owned a carpeting business for 10 years. Appellant paid business taxes and
advertised. Appellant’s customers were Chinese; appellant had few, if any, English-
speaking customers. Gerald Young, the court interpreter during the suppression hearing,
testified the translation of legal concepts into Cantonese could result in ambiguity or
contradiction.
b. Pertinent Proceedings.
On March 5, 2010, appellant moved, inter alia, to traverse the search warrant for
the front house and to suppress evidence pursuant to Penal Code section 1538.5.
Evidentiary hearings occurred in October and November 2011. At the November 14,
2011 pretrial hearing on the motions, the court indicated as follows. Appellant’s position
he spoke virtually no English was inconsistent with the fact he had been a businessman
for decades and dealt with a mixed population of customers. His position was not
credible.
The court stated, “With respect to what I’m terming the consent search in the first
instance, the officers said that it was a protective sweep. So we have both a protective
sweep and consent in which the officers indicated that Mr. Ho said ‘Go ahead. You
won’t find anything.’ ” The court indicated appellant’s statement was inconsistent with
8
him “having no language ability.” The court observed video indicated appellant was
handcuffed during the protective sweep but testimony indicated he was not handcuffed
thereafter and he was placed in a patrol car to await an interpreter. The fact officers were
“waiting for a signed consent” and continued to detain appellant pending the arrival of an
interpreter did not render the consent invalid. The court impliedly ruled appellant’s
consent to search was valid. The court denied appellant’s motions.4
On June 6, 2012, appellant filed a motion in limine asking the court to find his
statements to Morales involuntary under the Fifth and Fourteenth Amendments. At the
June 12, 2012 Evidence Code section 402 admissibility hearing on the motion, the
prosecutor stated, “I don’t think I have witnesses here. I don’t intend to introduce any of
the statements.” The court then stated, “Let’s talk about them generally without a
ruling.”5 The court expressed its tentative concerns.6
4
In February 2012, the court declared a mistrial with the parties’ consent. During
subsequent proceedings, appellant filed various motions in limine.
5
The above court was the same court that (1) ruled on November 14, 2011,
appellant’s consent to search the front house was valid, (2) reiterated that ruling on June
13, 2012 (as discussed post), and (3) presided at trial.
6
The court and parties relied on the testimony of Morales and appellant at the
November 14, 2011 Penal Code section 1538.5 hearing to discuss at the Evidence Code
section 402 hearing the issue of the voluntariness of appellant’s statements. At the
section 402 hearing, the court stated its “concern” with the statements was the natures of
the translation and detention. The court stated the video “seemed to suggest” “[appellant]
handcuffed and in a car and then out of a car” during the search and before Ha arrived.
The court then stated, “So I guess I have concern about the voluntariness of the
statements and about the accurate translation in terms of the dialect arguments.” The
court told the parties to “take all the time you need” to argue the issue. Appellant argued
there were translation problems. The court accepted that as true but said, “There still has
to be a way to give the defendants their Miranda rights.” The court noted Ha thought
appellant understood him. The court also stated its “concern” was not the Miranda
warnings but the nature of how the statement occurred. The court also stated it was “just
not sure” how the statement was voluntary, with or without a Miranda warning. The
court indicated Ha could further testify on the translation issue, and there was
“confusion” concerning when appellant was handcuffed. The court observed that, in
fairness, the deputies were focusing on the search. The court indicated the issues of the
9
The prosecutor indicated that, even before earlier trial court rulings on other
admissibility issues, “the People were inclined to exclude the statements completely.”
The following then occurred: “The Court: Out of an abundance of caution? [¶] [The
Prosecutor]: Yes; and also to save some time in terms of what would be required to put
on the statements. [¶] In light of that, the People will go ahead and submit on the issue
for the statements. If the court wants to exclude the statements by both defendants,
People are okay with that.” [¶] The Court: Both defendants’ statements are excluded.”
The next day, on June 13, 2012, appellant argued that, just as he had argued on
June 12, 2012, appellant’s statement was involuntary, so too appellant’s consent to search
the front house was involuntary; therefore, the cash found in the front house should be
suppressed. The court rejected the argument, observing the court previously found
appellant gave knowing consent to search.7
On June 19, 2012, at trial, Morales testified as follows. Morales wrote a probable
cause determination declaration (declaration). Morales did not sign it. Morales’s partner
signed it when Morales and his partner presented it to the watch commander. When
Miranda warnings and whether they were understood could be revisited. The court also
indicated it “wasn’t as concerned” about the detention until the court saw the video
indicating appellant had been handcuffed for a period and Morales had not recalled this.
7
The court stated, “I think the consent is a different matter from the statements that
[appellant] made. They were much more complicated; the translating of his statements
was much more complicated; the coercion after the period of time that had passed; all of
that together, I don’t think the circumstances with respect to the statements . . . are at all
the same as his consent to enter the house. I found that and still believe that that was a
knowing consent and that there was not the coercion that was involved much, much later
with respect to the statements.”
On July 18, 2012, appellant moved for a new trial on the ground the consent to
search the front house was invalid. Appellant argued a finding of consent was
inconsistent with the trial court’s alleged finding on June 12, 2012, appellant’s statements
to Morales were involuntary. The court stated, “By way of explanation, I think there was
some time that passed between the consent and the statement actually being given. That
was one of the reasons for the finding that the consent was voluntary but that the
statement, by the time it was given, was not.”
10
appellant asked Morales if there was any “indication that somebody was acting as
[Morales’s] agent or authorized to sign [Morales’s] name,” Morales indicated his partner
was standing next to Morales when his partner signed the declaration. Nothing on the
declaration indicated someone other than Morales had signed it.
On June 21, 2012, appellant indicated he wanted to “revisit the 1538.5” because
Morales’s partner, not Morales, signed the declaration. The court declined to revisit the
issue. We present additional facts below.
b. Analysis.
Appellant claims the trial court erroneously denied his Penal Code section 1538.5
suppression motion. Appellant makes four arguments. First, appellant argues the keys
obtained during the search of his person incident to his arrest must be suppressed because
the probable cause for that arrest was the product of his involuntary statements to
Morales. We reject that argument.
At the outset, we note that, although the trial court at the June 12, 2012 Evidence
Code section 402 hearing excluded appellant’s statements to Morales, it is not clear the
trial court did so because they were involuntary. The trial court’s comments during the
hearing reflect the court initially wanted to discuss the voluntariness issue without
making a ruling, and the court’s subsequent comments reflected a willingness to receive
further testimony on the issue of voluntariness (see fn. 6, ante). The trial court did not on
that date expressly find the statements were involuntary.
On the other hand, the record is clear the trial court excluded the statements only
after the prosecutor indicated (1) she had not intended to introduce them in the first place,
(2) out of an abundance of caution, the prosecutor had been “inclined to exclude the
statements completely,” and (3) in order to save time, the prosecutor was not going to
introduce them. In other words, it appears that, on June 12, 2012, the trial court,
following the prosecutor’s lead, excluded the statements (1) because the prosecutor
indicated she was not going to introduce them, (2) for the sake of judicial economy, and
11
(3) out of an abundance of caution they were involuntary, without ruling they were
involuntary.
The burden is on appellant to demonstrate error; it will not be presumed. (In re
Kathy P. (1979) 25 Cal. 3d 91, 102; People v. Garcia (1987) 195 Cal. App. 3d 191, 198.)
Appellant has failed to demonstrate the trial court ruled on June 12, 2012, appellant’s
statements were involuntary.8
Even if appellant’s statements to Morales were involuntary and the keys recovered
from appellant should have been suppressed, reversal is not required. There is no dispute
appellant owned the front and rear houses. Appellant does not challenge the sufficiency
of the evidence he was cultivating marijuana in the upper unit of the rear house (count 2).
Whether or not the keys found on appellant’s person should have been suppressed,
deputies found, on the kitchen table in the front house, keys to the security doors of the
upper and lower units of the rear house. In light of these facts and those set forth in the
Factual Summary, the admission into evidence at trial of the keys recovered from
appellant’s person was harmless beyond a reasonable doubt. (Cf. Chapman v. California
(1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705].)
Appellant’s second argument is the evidence obtained during execution of the
search warrant for the front house should have been suppressed because the warrant was
based on appellant’s involuntary statements. We reject that argument because appellant
has failed to demonstrate the trial court concluded the statements were involuntary.
Moreover, even if appellant’s statements were involuntary, Morales testified
appellant made his statements, then consented to the search of the front house, and
Morales subsequently executed the search warrant for the front house. The trial court
8
We realize the trial court, on June 13, 2012, and July 18, 2012, made comments
indicating appellant’s statements were coerced (i.e., involuntary). However, the court
made no such comments on June 12, 2012, when the court excluded the statements.
Moreover, on June 13, 2012 and July 18, 2012, the issue the trial court was considering
was whether it correctly had ruled on November 14, 2011, that appellant’s consent to
search was valid, not whether appellant’s statements were voluntary.
12
found a different sequence of events but it found the consent to search was valid, and we
uphold that finding post. There is therefore no need to suppress the evidence obtained
during the execution of the warrant for the front house on the ground that warrant was
invalid, because Morales previously had obtained valid consent to search the front house.
That evidence inevitably would have been discovered during the consensual search. (See
People v. Robles (2000) 23 Cal. 4th 789, 800-801, fn. 7; In re Javier A. (1984)
159 Cal. App. 3d 913, 928.)
Appellant’s third argument is the evidence obtained as a result of his consent to
search should have been suppressed because the consent was involuntary. As indicated,
we reject that argument. The trial court ruled on November 14, 2011, appellant’s consent
to search was valid. When reviewing the denial of a defendant’s Penal Code section
1538.5 suppression motion, we defer to the trial court’s express and implied factual
findings to the extent they are supported by substantial evidence, and exercise our
independent judgment as to whether a search or seizure was reasonable under the Fourth
Amendment based on the facts so found. (People v. Glaser (1995) 11 Cal. 4th 354, 362;
Leyba, supra, 29 Cal.3d at pp. 596-597.)
Appellant argues “every aspect of appellant’s consent [to search the front house]
occurred during or after all of his involuntary statements had been given.” (Italics
added.) That is, appellant’s argument relies on the People’s evidence as to the sequence
of the events; in particular, that consent to search followed the statements.
However, to the extent appellant relies on the People’s evidence, there was
substantial evidence as follows. When appellant answered the door, deputies’ weapons
were drawn but not pointed at appellant. Appellant was perhaps a little nervous but was
cooperative. Morales testified no guns were drawn on appellant when his consent to
search the front house was obtained after Morales interviewed him. Appellant’s consent
to search was not as a matter of law invalid solely because deputies originally drew guns
when confronting appellant. (People v. Ratliff (1986) 41 Cal. 3d 675, 686.)
13
Appellant complied with Morales’s request appellant step outside, and appellant
was not then handcuffed. Shortly after appellant complied, Morales determined appellant
needed an interpreter and summoned one. Appellant was subsequently detained, but
appellant does not challenge the lawfulness of either his initial or continued detention.
The approximate one-minute protective sweep of the front house occurred while
appellant was being detained pending the arrival of Ha. Morales testified appellant was
not handcuffed when appellant was placed in the patrol car. Appellant and the deputies
waited “probably about maybe 25 minutes” for an interpreter. Appellant remained
unhandcuffed during the interview. The questioning of appellant took perhaps 15
minutes.
Ha testified appellant was calm and Ha had no difficulty communicating with
appellant. Ha advised appellant of his Miranda rights and appellant agreed to speak with
Morales and Ha. We have recited appellant’s statements to Morales; nothing about them
indicates Morales or Ha coerced appellant when he made them. When, after the
interview, Ha asked appellant if he would be willing to give consent to search, appellant
said he had nothing to hide and gave consent. In sum, assuming consent to search
followed appellant’s statements, we conclude, contrary to appellant’s argument, the
People’s evidence provided substantial evidence appellant’s consent to search was valid.
Of course, appellant’s testimony suggested, and the trial court’s November 14,
2011 reasoning and ruling implied, appellant orally consented to the search shortly after
he encountered deputies at his door. We previously set forth the trial court’s November
14, 2011 reasoning and ruling. Whether the consent to search was before or after the
alleged involuntary statements, we agree with the trial court appellant’s consent to search
the front house was valid.
Appellant’s fourth argument is the search warrant for the front house was void
because, according to appellant, Morales’s partner forged Morales’s signature on the
warrant, affidavit, and/or statement of probable cause. We reject the argument. Pursuant
to appellant’s request, this court, on October 31, 2013, took judicial notice of a two-page
14
document. Page 1 purports to be a copy of only the first page of a search warrant
(warrant) signed by an issuing magistrate, and an affidavit signed by Morales. Page 2
purports to be a copy of a declaration. It appears page 2 is a copy of the declaration
concerning which Morales testified as discussed previously.
We assume without deciding the above warrant and affidavit commanded the
search of the front house, and the declaration supported, and was attached to, the warrant
and affidavit. Appellant cites no case holding the mere fact an affiant’s partner, and not
the affiant, signed the declaration renders void a search warrant. There is no dispute
Morales signed the affidavit. In it, Morales “swears under oath that the facts expressed
by him . . . in this Search Warrant and Affidavit and the attached and incorporated
statement of probable cause are true.” There is no dispute the magistrate signed the
warrant. In it, the magistrate states, “proof by affidavit having been made before me by
Deputy Joe Morales,” the magistrate was commanding the search.
“The test of the sufficiency of an officer’s oath in support of a search warrant is
whether he can be prosecuted for perjury should his statement of probable cause prove
false.” (People v. Hale (2005) 133 Cal. App. 4th 942, 947 (Hale).) Even if Morales did
not sign the declaration, he wrote it. Given his affidavit, which incorporated the
declaration, he would have been liable for perjury had the declaration not been true.
Morales indicated his partner signed Morales’s name in his presence. There was no
intent to defraud and, therefore, no forgery; Morales authorized his partner to sign for
Morales. The fact Morales signed the declaration did not invalidate the warrant.
(Cf. Hale, at pp. 946-947; but see People v. Leonard (1996) 50 Cal. App. 4th 878.)
2. The Evidence of the Money in the Front House Was Admissible.
Appellant objected in the trial court to the introduction into evidence of the money
found in the front house on the ground the evidence was irrelevant and excludable under
Evidence Code section 352. The trial court overruled the objections. The court also
stated, “it goes to weight in terms of the explanation for its being there.”
15
Appellant claims the trial court erred. We disagree. We review for abuse of
discretion any claim a trial court erred in its rulings on relevance and/or Evidence Code
section 352 objections. (People v. Waidla (2000) 22 Cal. 4th 690, 717, 723-724.) In
Part 3 of our Discussion below, we discuss the money in the context of the rest of the
evidence in this case. That discussion reveals when the money is considered with the rest
of the evidence in this case, the money had a tendency in reason to prove, as proceeds of
marijuana cultivation and sales activity, appellant committed the offenses of which he
was convicted, and was admissible. The trial court did not abuse its discretion by failing
to exclude the evidence of the money.
3. Sufficient Evidence Supported Appellant’s Convictions on Counts 1 and 3.
a. Sufficient Evidence Supported Appellant’s Conviction on Count 1.
Appellant claims there is insufficient evidence supporting his conviction on count
1 because there is insufficient evidence he had the purpose of unlawfully manufacturing a
controlled substance “for sale or distribution” within the meaning of Health and Safety
Code section 11366.5, subdivision (a). Appellant argues, inter alia, “it was entirely
possible for appellant to have known that marijuana was being grown, but to have no
knowledge of the scope of the operation or what was being done with that marijuana.”
(Italics added.) We reject appellant’s claim.
There is no dispute appellant cultivated marijuana, the crime of which he was
convicted in count 2. Moreover, there was substantial evidence as follows. Appellant
owned and had access to the rear house’s upper unit in which 968 marijuana plants were
being cultivated. They were in different stages of growth, i.e., some had been growing
for some time while appellant had access to the rear unit.
On April 28, 2009, Morales saw appellant twice walk towards the rear house.
Morales could smell a slight odor of marijuana outside the door of the upper unit. When
Morales opened the door to the upper unit, the marijuana odor was overwhelming.
Appellant’s safe in the front house contained $20,040, mostly in $100 bills. Appellant
hid $17,350 in shoes; this concealment was evidence of consciousness of guilt. There
16
was $447 in the open on a dining room table. When considering the above money with
the rest of the evidence in this case, the jury reasonably could have concluded some or all
of that money represented proceeds from the sale of marijuana cultivated in the rear
house. We note some of the marijuana in the rear house already had been harvested; the
jury reasonably could have concluded the harvested marijuana recently had been sold.
If appellant had purposed to unlawfully manufacture marijuana but not for sale or
distribution, the jury reasonably could have expected appellant to call Thanh, Junjie,
and/or Cu Cuu Ho to so testify. (See People v. Ford (1988) 45 Cal. 3d 431, 432-433, 435-
436.) Appellant concedes the People’s experts opined “the scale of the operation was
such that it could not be for personal use.” Appellant’s claim fails.
b. Sufficient Evidence Supported Appellant’s Conviction on Count 3.
Appellant claims there is insufficient evidence supporting his conviction for theft
of utility services (count 3). Appellant argues, inter alia, “With respect to Count 3,
appellant’s mere knowledge of the marijuana operation and his allowing the residence to
be used for that purpose could not have established that he specifically aided and abetted
the installation of a bypass and theft of electricity within that residence.” We reject
appellant’s claim. In light of our discussion above, we conclude there was sufficient
evidence to convince a rational trier of fact, beyond a reasonable doubt, appellant, as a
direct perpetrator or as an aider and abettor, committed theft of utility services worth
more than $400. (Ochoa, supra, 6 Cal.4th at p. 1206.)
4. The Trial Court’s Instruction on Count 1 Was Proper.
Appellant claims the trial court erroneously instructed on count 1.9 He argues in
essence the court’s instruction on the elements of that count erroneously told the jury
9
The instruction stated, “Defendant Jack Duc Ho is charged in Count 1 with
Allowing Place for Preparing or Storing Controlled Substance in violation of Health &
Safety Code section 11366.5(a). [¶] To prove that the defendant is guilty of this crime,
the People must prove that: [¶] (1) The defendant had under his management or control
any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or
mortgagee; [¶] (2) The defendant knowingly and with specific intent rented, leased, or
made available that building, room, space, or enclosure for the purpose of unlawfully
17
appellant had to commit the acts required by Health and Safety Code section 11366.5,
subdivision (a) “for the purpose of unlawfully manufacturing . . . any controlled
substance” instead of telling the jury he had to commit them “for the purpose of
unlawfully manufacturing . . . any controlled substance for sale or distribution.” (Italics
added.) We reject appellant’s claim.
First, like the court’s instruction in this case, Health and Safety Code section
11366.5, subdivision (a), contains the phrase, “for the purpose of unlawfully
manufacturing, storing, or distributing any controlled substance for sale or distribution.”
Since “. . . ‘for sale or distribution’ [in subdivision (a)] modifies the phrase ‘controlled
substance,’ it applies equally to all three prohibited activities, including manufacturing.”
(People v. Costa (1991) 1 Cal. App. 4th 1201, 1206.) The court’s instruction was
therefore correct.
Second, although the court might have clarified the instruction to refer to “the
purpose of unlawfully manufacturing any controlled substance for sale or distribution”
(i.e., omitting from that phrase references to storing or distributing), the instruction
correctly stated the law and was responsive to the evidence; therefore, appellant waived
the clarification issue by failing to request clarification below. (Cf. People v. Palmer
(2005) 133 Cal. App. 4th 1141, 1156.) Finally, in light of part 3 of our Discussion, there
was not only sufficient but ample evidence appellant harbored the purpose of unlawfully
manufacturing marijuana for sale or distribution. Any trial court error in failing to clarify
the instruction at issue was not prejudicial. (People v. Andrews (1989) 49 Cal. 3d 200,
215.)10
manufacturing, storing, or distributing any controlled substance for sale or distribution;
AND [¶] (3) Defendant did so with or without compensation. (Italics added.)
10
In light of the above, we reject appellant’s claim cumulative prejudicial error
occurred.
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5. Penal Code Section 654 Barred Punishment on Count 3 But Not on Count 2.
Appellant claims Penal Code section 654 barred punishment except on count 1.
We disagree. There was substantial evidence appellant cultivated and harvested some of
the marijuana (count 2), and removed the harvested marijuana from one of the six rooms
in the upper unit of the rear house. However, even after that, appellant continued making
available the upper unit of the rear house for the manufacture of marijuana (count 1) and
continued stealing utility services (count 3). Penal Code section 654 did not bar
punishment on count 2, since appellant had independent criminal objectives as to counts
1 and 2, and as to counts 2 and 3. (Cf. People v. Goodall (1982) 131 Cal. App. 3d 129,
147.)
On the other hand, appellant stole electricity (count 3) for no purpose other than to
make available the upper unit of the rear house for the manufacture of marijuana (count
1). Penal Code section 654 barred multiple punishment on counts 1 and 3, since
appellant did not have independent criminal objectives as to those counts. We will
modify the judgment as to count 3.
6. The Sentencing Minute Order Must Be Corrected.
During the July 18, 2012 sentencing hearing in this case, the trial court orally
imposed the probation condition “[t]hat [appellant] not own, use, or possess any
controlled substance without a prescription for the same.” However, the July 18, 2012
sentencing minute order reflects a condition the trial court did not orally impose during
the sentencing hearing, i.e., that appellant “not use or possess any narcotics, dangerous or
restricted drugs or associated paraphernalia,” except with a valid prescription.
The sentencing minute order also includes three conditions the trial court did not
orally impose during the sentencing hearing, i.e., that appellant (1) “[n]ot own, use or
possess any dangerous or deadly weapons, including any firearms, knives or other
19
concealable weapons,” (2) “[o]bey all laws and orders of the court,” and (3) “[o]bey all
rules and regulations of the probation department.”11
Appellant claims the trial court must correct the sentencing minute order by
deleting the above probation conditions the court did not orally impose during the
sentencing hearing. We partially agree. Except as indicated in the text below, all above
probation conditions the trial court did not orally impose must be deleted from the
sentencing minute order. (Cf. People v. Farell (2002) 28 Cal. 4th 381, 384, fn. 2; People
v. Mesa (1975) 14 Cal. 3d 466, 471.)
We believe the trial court’s oral reference to “controlled substances” was a
shorthand phrase that included “narcotics, [and] dangerous or restricted drugs” as well.
(See In re Frankie J. (1988) 198 Cal. App. 3d 1149, 1154.) There is no need to delete
from the sentencing minute order the probation condition appellant not “use or possess
any narcotics, [or] dangerous or restricted drugs.” (See In re Merrick V. (2004)
122 Cal. App. 4th 235, 249.) We also believe requirements a defendant “obey all laws and
orders of the court” and “obey all rules and regulations of the probation department” are
so basic they are implied in every grant of probation. (Cf. People v. Thrash (1978)
80 Cal. App. 3d 898, 902; People v. Lippner (1933) 219 Cal. 395, 399.) There is no need
to delete these from the minute order.
11
The minute order further states, “Defendant acknowledges to the court that the
defendant understands and accepts all the probation conditions, and defendant agrees to
abide by same.” However, the reporter’s transcript reflects no such acknowledgement by
appellant.
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DISPOSITION
The judgment is modified by staying execution of sentence on appellant’s
conviction for theft of utility services worth more than $400 in violation of Penal Code
section 498, subdivisions (b) and (d) (count 3) pending completion of his sentence on his
remaining convictions, such stay then to become permanent, and, as so modified, the
judgment is affirmed. The trial court is directed to correct its July 18, 2012 sentencing
minute order by deleting the phrase “or associated paraphernalia” from the probation
condition in which that phrase now appears, with the result the corrected probation
condition states only that appellant may “not use or possess any narcotics, [or] dangerous
or restricted drugs,” and by deleting from said minute order the probation condition
appellant “[n]ot own, use or possess any dangerous or deadly weapons, including any
firearms, knives or other concealable weapons.”
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
CROSKEY, Acting P. J.
ALDRICH, J.
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