Opinion
C088032
03-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN JOSEPH BURROUGHS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE014110)
Following a jury trial, defendant John Joseph Burroughs was convicted of one count of possession for sale of methamphetamine in violation of Health and Safety Code section 11378, and one count of transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). The trial court sentenced defendant to five years in state prison and imposed various fees and fines.
Defendant appeals, arguing the trial court erred in denying his motion to suppress evidence seized in a warrantless search of his car. Defendant also challenges: (1) the sufficiency of the evidence that he possessed and transported methamphetamine for sale; (2) the exclusion of cross-examination regarding the circumstances giving rise to the traffic stop; (3) the denial of his request to recall a witness; (4) the trial court's failure to sua sponte instruct the jury on simple possession as a lesser included offense of possession of methamphetamine for sale; (5) the denial of his request to unseal jury information; and (6) the imposition of various fees and fines. Defendant also asserts ineffective assistance of counsel and cumulative error. Finding no error, we affirm.
I. BACKGROUND
Sacramento County Sheriff's Deputies Eric Del Real and Patrick Walker were on patrol in South Sacramento in the early morning hours of July 21, 2016. Del Real effected a traffic stop of an Oldsmobile Cutlass (the details of which are discussed below) and made contact with defendant, the car's driver and sole occupant. Del Real confirmed that defendant was on post-release community supervision (PRCS) and searched the car. He found an eyeglass case under the driver's seat containing two sandwich bags filled with pills. Based on his training and experience, Del Real believed the pills were ecstasy. Deputy Walker conducted a "NIK" field test on one of the pills and observed a bluish color, indicating a positive result for amphetamine, a chemical compound found in both ecstasy and methamphetamine.
Defendant was arrested and transported to jail. During a booking search, he was found to be carrying two wallets. One of the wallets contained $2,000 in denominations of $100 and $50 bills. The other contained an envelope with handwritten notations reflecting names or nicknames and amounts of money. Based on their training and experience, Deputies Del Real and Walker believed the envelope was a "pay/owe" sheet of the kind used by drug dealers to keep track of drug transactions. Del Real booked the pills into evidence and prepared a police report estimating that 70 pills had been recovered; approximately 50 from one sandwich bag and 20 from the other. Del Real also indicated that the pills were ecstasy.
As we shall discuss, there was also evidence that one of defendant's wallets was searched in the field.
Defendant was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378—count one) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)—count two). The information further alleged that defendant had sustained a prior robbery conviction under the Three Strikes Law (Pen. Code, §§ 667.5, subd. (b)), a prior drug conviction for possession for sale of ecstasy (Health & Saf. Code, § 11370.2, subd. (c)), and a prior prison term for possession for sale of ecstasy (Pen. Code, § 667.5, subd. (b)).
Defendant pleaded not guilty and denied the allegations. He then moved to suppress the evidence obtained as a result of the vehicle search. The trial court conducted an evidentiary hearing and denied the motion.
The matter was tried to a jury in August 2018. During the trial, Deputies Del Real and Walker testified to the facts described above. John Della-Santina, a criminalist at the Sacramento County District Attorney's Laboratory of Forensic Services, testified that he examined two baggies of pills. One of the baggies contained 64 round green tablets and 36 round gray tablets. The other baggie contained 15 round green pills, 10 round gray pills, 12 rectangular green pills, 7 rectangular gray pills, and 6 rectangular white pills. Della-Santina explained that he analyzed each type of pill, and confirmed the presence of methamphetamine in all but the rectangular white pills, which contained caffeine.
Detective David McEntire testified as an expert in the possession of controlled substances for sale. McEntire explained that methamphetamine comes in a variety of forms, including crystals, crumbs, liquids, capsules, and pills. Methamphetamine pills are uncommon, in McEntire's experience, because they do not allow customers to see what they are getting before they buy, and do not deliver a methamphetamine high as effectively or efficiently as other forms of the drug. Even so, McEntire noted that methamphetamine pills may be seen by drug dealers as easier to distribute and hide from law enforcement than other forms of methamphetamine.
McEntire estimated that a single dose would be somewhere between one to three pills. He further estimated that a single dose of methamphetamine would cost $4. McEntire noted that methamphetamine users typically do not carry more pills than they intend to use because they do not want to share or be mistaken for a dealer. Based on a hypothetical involving the same number of methamphetamine pills, in similar packaging, along with $2,000 in cash and handwritten notes similar to a pay/owe sheet, McEntire opined that the pills were possessed for the purpose of sale.
After the close of the prosecution's case, the defense sought to recall Deputy Del Real. The trial court denied the request, and the defense rested. Following closing arguments and jury instructions, the jury found defendant guilty as charged. In a bifurcated proceeding, the trial court found the prior strike conviction, drug conviction, and prior prison term to be true.
Defendant appeared for judgment and sentencing on September 21, 2018. In anticipation of the sentencing hearing, the probation department prepared a report recommending the imposition of the following fees, fines, and assessments: a $2,100 restitution fine (Pen. Code, § 1204.4, subd. (b)), a suspended $2,100 parole revocation restitution fine (Pen. Code, § 1202.45), a $100 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), plus $260 in related penalties and assessments, a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), a $402 main jail booking fee (Gov. Code, § 29550.2), (6) a $99 main jail classification fee (Gov. Code, § 29550.2), an $80 court operations assessment (Pen. Code, § 1465.8), a $60 court facilities assessment (Gov. Code, § 70373), a $702 fee for the investigation and presentence report, a $46 fee for the monthly cost of probation, a $25 fee for urinalysis testing, and a criminal impact fee equal to 20 percent of the base fine amount (Pen. Code, § 1465.7, subd. (a)).
At the sentencing hearing, defense counsel moved to strike defendant's prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). In connection with the Romero motion, defense counsel noted that defendant had been working fulltime as a custodian for the State of California for approximately six months, a situation that appears to have ended when he was arrested and incarcerated for driving under the influence in an unrelated case. Defense counsel then moved to strike the above-enumerated fines, fees, and assessments, citing defendant's inability to pay. Defense counsel elaborated, "[Defendant's] in prison, and he doesn't have sufficient savings to really address the finances. These [fines] add up to thousands of dollars. To a person who is likely going to prison, then to be released and to have all these financial burdens placed upon him, this is—it's a serious burden. It's not something he can—that we can expect for a person to realistically do."
Following further argument, the trial court struck the prior strike conviction and sentenced defendant to an aggregate term of five years. Defendant waived recitation of the fines, fees, and assessments, which were ultimately imposed as follows: a $300 restitution fine (Pen. Code, § 1204.4, subd. (b)), a $300 parole revocation restitution fine (§ Pen. Code, § 1202.45), which the court stayed, a $80 court operations assessment (Pen. Code, § 1465.8), and a $60 court facilities assessment (Gov. Code, § 70373).
This appeal timely followed.
II. DISCUSSION
A. Motion to Suppress
Defendant challenges the denial of his motion to suppress on two grounds. First, he argues the prosecution failed to show the search was justified by an exception to the warrant requirement, as there was no substantial evidence that Deputies Del Real and Walker knew that defendant, a person on PRCS, was the driver of the Oldsmobile when they stopped him. Second, he argues the traffic stop was arbitrary and capricious, notwithstanding his PRCS status, because Del Real and Walker had no reason to run his license plate in the first place. Neither of these contentions has merit.
1. Additional Background
Deputy Walker testified for the prosecution at the hearing on the motion to suppress. Walker recounted that Deputy Del Real was driving on the morning of July 21, 2016, and he was sitting in the passenger seat, operating the patrol car's mobile data computer.
Walker recalled that the patrol car was travelling eastbound on a narrow, two-lane street, heading towards a major intersection. It was dark, but the area was illuminated by street lights and ambient light from the intersection. As they approached the intersection, Deputy Walker spotted an Oldsmobile Cutlass from a distance of several hundred feet. The Oldsmobile turned onto the two-lane street, and drove westward, towards the moving patrol car. As the Oldsmobile drew closer, Walker used a handheld flashlight to illuminate the front license plate, which he entered into the mobile data computer's DMV system. The two cars passed within 15 to 20 feet of one another, with the patrol car traveling at a speed of approximately 35 miles an hour. As they did so, Walker looked at the Oldsmobile's driver and saw an African American man with a goatee. Walker estimated that he was able to observe the driver for approximately 20 seconds as the Oldsmobile approached and then passed the patrol car.
As these events were rapidly unfolding, the computer returned defendant's name as the Oldsmobile's registered owner. At some point, either immediately before or immediately after the patrol car passed the Oldsmobile, Deputy Walker ran defendant's name through the Sheriff Department's KPF database, which displayed defendant's photograph and revealed that he was on PRCS. Walker and Del Real agreed that the photograph resembled the driver of the Oldsmobile and decided to stop the car.
The record in this case does not reveal what "KPF" stands for.
Deputy Walker recalled that Deputy Del Real executed a three-point turn and initiated the stop. Del Real made contact with defendant and confirmed his identity and PRCS status. Del Real then detained defendant and searched the car.
Based on the foregoing testimony, the trial court denied defendant's motion to suppress, finding that Deputy Walker identified defendant as the driver and determined he was on PRCS before Deputy Del Real effected the traffic stop.
2. Applicable Legal Principles and Standard of Review
"Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution." (People v. Banks (1993) 6 Cal.4th 926, 934.) "The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365, italics omitted.) "A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the 'specifically established and well-delineated exceptions.' " (People v. Woods (1999) 21 Cal.4th 668, 674.) A search incident to a lawful arrest is one such exception. (Arizona v. Gant (2009) 556 U.S. 332, 338.) Another exception exists for probation searches, provided the police are aware of the probation search condition at the time of the warrantless search. (People v. Robles (2000) 23 Cal.4th 789, 795; People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1184.) Similarly, "an individual who has been released from custody under PRCS is subject to search (and detention incident thereto) so long as the officer knows the individual is on PRCS." (People v. Douglas (2015) 240 Cal.App.4th 855, 865; see also Pen. Code, § 3453, subd. (f) ["The person [released on PRCS], and his or her residence and possessions, shall be subject to search at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer"].) The officer's belief in the subject's status as a person subject to PRCS must be objectively reasonable in the totality of the circumstances. (People v. Douglas, supra, at p. 865.)
When a defendant files a motion to suppress evidence seized in a warrantless search, "the prosecution bears the burden to prove police conducted the search under a valid exception to the Fourth Amendment's warrant requirement." (People v. Espino (2016) 247 Cal.App.4th 746, 756.) On appeal from the denial of a motion to suppress, we defer to the trial court's express or implied factual findings if supported by substantial evidence, but independently apply constitutional principles to the trial court's factual findings in determining the legality of the search. (People v. Redd (2010) 48 Cal.4th 691, 719.) Appellate review "is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling." (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27.)
3. Analysis
Defendant acknowledges he was on PRCS at the time of the search, but argues the evidence was insufficient to support the trial court's finding that Deputies Del Real and Walker knew he was the driver of the Oldsmobile when they pulled him over. He argues that Walker's testimony was "so inherently improbable and impossible of belief" as to fall short of substantial evidence. Defendant's argument lacks merit.
"To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear." (People v. Ozene (1972) 27 Cal.App.3d 905, 910, disapproved on another point in People v. Gainer (1977) 19 Cal.3d 835, 844, 851-852.) "Contradictions and inconsistencies alone will not necessarily constitute inherent improbability." (People v. Swanson (1962) 204 Cal.App.2d 169, 172.)
Defendant directs our attention to an apparent inconsistency in Walker's testimony. At the beginning of the hearing, Walker appeared to suggest that he received and reviewed defendant's photograph first, and then looked at the driver of the passing car. Later, however, Walker clarified—and repeatedly confirmed—that he entered the license plate into the mobile data computer, looked at the driver, and then saw the photograph. Even assuming the inconsistency was material, it was, at most, a conflict in the evidence for the trial court to resolve. (People v. Redd, supra, 48 Cal.4th at p. 719.) Nothing about the discrepancy supports the contention that Walker's testimony was inherently improbable or implausible on its face.
Defendant emphasizes the difficult conditions in which Walker claims to have seen him, noting that Walker saw him only briefly, in the dark, from a moving car, at a distance of 15 to 20 feet. However, Walker testified that he observed defendant for approximately 20 seconds as the Oldsmobile approached and passed the patrol car on a narrow, two-lane street. Although it was dark, ambient light allowed Walker to see inside the Oldsmobile and discern that the driver was an African American man with a goatee, a description that matched the photograph he retrieved and reviewed from the KPF database. It was not physically impossible for Walker to have seen enough of the driver to determine that he matched the KPF photograph. Nor is it inherently improbable that an experienced law enforcement officer would be able to make such a determination in the field under difficult conditions.
Defendant questions these conclusions, noting that Walker used a flashlight to make out the Oldsmobile's license plate, and could not remember his hairstyle or hat at the hearing on the motion to suppress. These arguments go to the weight and credibility of Walker's testimony, which were matters for the trial court. They do not demonstrate physical impossibility or inherent improbability.
The trial court impliedly found that Deputies Del Real and Walker had an objectively reasonable basis for believing that defendant was the driver of the Oldsmobile when they stopped him. Walker's testimony constitutes substantial evidence to support the trial court's finding, and defendant has failed to demonstrate that testimony, which the trial court credited, was inherently improbable or impossible. We reject defendant's invitation to reweigh the evidence.
Defendant argues the traffic stop violated his Fourth Amendment right to be free from searches that are arbitrary, capricious, and harassing. Relying on People v. Bates (2013) 222 Cal.App.4th 60 (Bates), defendant argues that Deputies Del Real and Walker acted on a "mere hunch" that the driver of the Oldsmobile was defendant, a person on PRCS, with no reasonably articulable suspicion that the car or anyone in the car may have been involved in criminal activity. Bates does not help defendant.
In Bates, a deputy investigating a robbery was aware that the defendant, a felony probationer matching the suspect's description, lived in a nearby apartment complex and sometimes drove a gold van. (Bates, supra, 222 Cal.App.4th at p. 63.) The deputy was also aware that the terms of the defendant's probation included a warrantless search condition. (Id. at p. 63.) The deputy went to the apartment complex to watch for the van. (Ibid.) Two hours later, the officer stopped a tan car leaving an adjacent mobilehome park. (Id. at pp. 63-64.) The deputy did not observe any wrongdoing and did not, at the time of the stop, have information that any of the car's occupants were involved in the robbery. (Ibid.) After the stop, the deputy discovered that one of the passengers was the defendant, the suspect he was looking for. (Id. at p. 64.) The ensuing search revealed incriminating evidence. (Ibid.)
The Sixth District Court of Appeal concluded that the traffic stop was unlawful. (Bates, supra, 222 Cal.App.4th at pp. 66-67.) The court explained that the deputy had no reasonably articulable suspicion that the occupants of the tan car or the car itself may have been involved in criminal activity, but "made the stop based solely on the possibility that the suspect might be riding in the vehicle." (Id. at p. 67.) Although the court recognized that it was "logical to assume that a suspect might get into a vehicle to leave the location of a crime," that assumption, without more, "does not rise to the particularized suspicion necessary to detain the vehicle and its occupants." (Ibid.) The court rejected the People's argument that the defendant's probation search condition attenuated the taint of the unlawful stop, stating, "the unlawfulness of a suspicionless vehicle detention is not retroactively cured when one of the passengers turns out to be a probationer with a search condition." (Id. at p. 62; see id. at p. 70.)
Bates bears only a superficial resemblance to the present case. There, the deputy stopped the tan car on a mere hunch, with no objectively reasonable basis for believing that any of the car's occupants were on searchable probation and no reasonably articulable suspicion that any of them matched the suspect's description. (Bates, supra, 222 Cal.App.4th at pp. 66-67.) Here, by contrast, Deputy Walker ran the Oldsmobile's license plate and determined that defendant, a person on PRCS, was the registered owner before making the stop. The license plate check, which does not implicate the Fourth Amendment, gave Walker a reasonable basis for inferring that defendant might be the driver of the Oldsmobile. (See generally United States v. Diaz-Castaneda (9th Cir. 2007) 494 F.3d 1146, 1150-1151 [license check not a search under Fourth Amendment]; United States v. Ellison (6th Cir. 2006) 462 F.3d 557, 561 [motorist has no reasonable expectation of privacy in license plate]; United States v. Sparks (8th Cir. 2002) 37 Fed.Appx. 826, 829 [reasonable suspicion not required to check license plate]; see also United States v. Whitis (E.D. Ky. July 20, 2017, Crim. No. 17-cr-68-JMH) 2017 U.S. Dist. LEXIS 112923, *6 ["An officer may generally ' "assume that the driver of a vehicle is the registered owner, unless they have evidence to the contrary" ' "].) Walker corroborated this inference by observing the driver for approximately 20 seconds and reviewing the KPF photograph. (Cf. United States v. Diaz-Castaneda, supra, at p. 1152 [traffic stop was not unconstitutional where deputy checked truck's license plate, learned that the registered owner was a male with a Hispanic surname and a suspended license, and then observed that the truck's driver was also a Hispanic male].) Unlike the deputy in Bates, Deputies Del Real and Walker were acting on more than a mere hunch that defendant was driving the Oldsmobile when they effected the traffic stop. Defendant's reliance on Bates is therefore unavailing.
Under the totality of the circumstances, we conclude that Deputies Del Real and Walker had an objectively reasonable basis for believing that defendant, a person on PRCS, was the driver of the Oldsmobile when they stopped him. (People v. Douglas, supra, 240 Cal.App.4th at p. 865.) Although Deputy Walker may not have had a reason to check defendant's license plate in the first place, no such reason was required (see, e.g., United States v. Diaz-Castaneda, supra, 494 F.3d at pp. 1150-1151), and neither the traffic stop nor the ensuing vehicle search violated defendant's Fourth Amendment rights. B. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support the convictions for possessing methamphetamine for sale (Health & Saf. Code, § 11378) and transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)). Our review in such challenges is limited: "To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
To be convicted of transporting methamphetamine for sale, the prosecution must prove beyond a reasonable doubt the defendant transported methamphetamine, knew of its presence and its nature as a controlled substance, and the methamphetamine was a useable substance. (Health & Saf. Code, § 11379, subd. (a); CALCRIM No. 2300.) The element of transportation requires the defendant to have carried or moved the methamphetamine from one location to another for sale. (Health & Saf. Code, § 11379, subd. (c); CALCRIM No. 2300.) Health and Safety Code section 11378 prohibits possession of methamphetamine for sale. Defendant argues the evidence was insufficient to show that he possessed and transported methamphetamine for sale, rather than for personal use.
"Intent to sell may be established by circumstantial evidence." (People v. Harris (2000) 83 Cal.App.4th 371, 374.) " 'In cases involving possession of marijuana or [methamphetamine], experienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as the quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.' " (Id. at pp. 374-375.) We must determine whether the record contains circumstantial evidence that is reasonable, credible, and of solid value from which the jury could reasonably conclude defendant possessed and transported the methamphetamine for sale.
Here, the physical evidence and Detective McEntire's expert testimony provided the jury with reasonable, credible, and solid evidence from which it could reasonably conclude that defendant possessed and transported methamphetamine for sale. Deputy Del Real found two baggies of methamphetamine pills in amounts suitable for sale underneath the driver's seat of defendant's car. He also found a wallet containing $2,000 in cash and another containing handwritten notations consistent with a drug dealer's pay/owe sheet on defendant's person. Presented with a hypothetical involving similar facts, Detective McEntire, an expert on drug sales, opined that the methamphetamine pills were possessed and transported for sale. This evidence was sufficient to support the convictions for possession and transportation of methamphetamine.
Defendant urges a contrary conclusion, noting there was no evidence of observed sales or text messages concerning drug sales. Defendant also notes there was no evidence the handwriting on the pay/owe sheet was his. Defendant observes that the pills in each baggie were non-uniform, suggesting they were not packaged for sale, and the money in the wallet was in denominations of $100 and $50, suggesting they may not have been the proceeds from hand-to-hand sales. These arguments amount to an invitation to reweigh the evidence, which we cannot do. As we have already explained, there was substantial evidence of sales, including the separately packaged baggies of methamphetamine pills, pay/owe sheet, and large amount of cash. Thus, sufficient evidence supports defendant's conviction for possession and transportation of methamphetamine. C. Exclusion of Cross-Examination Concerning Traffic Stop
Defendant argues the trial court erred by limiting the cross-examination of Deputies Walker and Del Real to preclude questioning about the circumstances giving rise to the traffic stop. He argues the evidence was relevant to impeach the deputies' credibility, and its exclusion violated his constitutional right to due process and a fair trial. We find no error.
1. Additional Background
During opening statements, defense counsel referred to the traffic stop, describing Deputy Walker's expected testimony that he checked the license plate and looked at the driver of the moving Oldsmobile as "incredible." The prosecutor objected and the trial court sustained the objection.
Later, out of the presence of the jury, defense counsel told the trial court he wanted to cross-examine Deputies Del Real and Walker about perceived inconsistencies in their accounts of the traffic stop. Specifically, defense counsel asserted that the deputies' testimony was inconsistent as to whether they discussed the identity of the driver before making the traffic stop and how many license plates they checked that night. Defense counsel also asserted that the deputies' testimony was inconsistent with the dashcam video. Specifically, defense counsel argued that the deputies' testimony that they waited for traffic lights to change before pulling defendant over was inconsistent with dashcam video showing the lights had already changed.
The trial court found these subjects were outside the scope of the direct examination and irrelevant to the elements of the charges. The trial court expressed concern that the jury would be sidetracked by questions concerning the propriety of the traffic stop, and found the potential for confusing or misleading the jury outweighed any probative value. The trial court ultimately excluded the evidence under Evidence Code section 352, stating: "We're talking about a vehicle passing another vehicle two years ago, and the independent recollections of two different people. And there are going to be, I think, inevitably some differences in what they recall. They had different perspectives. They had different functions. I don't find that those differences in the recollections are necessarily or even likely material. [¶] So under Evidence Code section 352, I'm going to exclude cross-examination on the circumstances leading up to the vehicle stop which is consistent with what my ruling was at sidebar during opening statements."
2. Applicable Legal Principles and Standard of Review
Only relevant evidence is admissible (Evid. Code, § 350)—and all relevant evidence is admissible unless excluded by statute (Evid. Code, § 351). Evidence is relevant if it has some "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) This definition includes evidence "relevant to the credibility of a witness." (Ibid.; see Evid. Code, § 780 [fact finder may consider matters relevant to the truthfulness of the witness's testimony].) "The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " (People v. Carter (2005) 36 Cal.4th 1114, 1166.) A trial court has broad discretion in determining the relevance of evidence. (Id. at pp. 1166-1167.)
A matter is collateral if it has no logical bearing on any material, disputed issue. (People v. Contreras (2013) 58 Cal.4th 123, 152.) A fact may bear on the credibility of a witness and still be collateral to the case. (Ibid.; see People v. Dement (2011) 53 Cal.4th 1, 50-52 [holding that an inmate who testified for the prosecution about seeing a prison murder could not be impeached with evidence that he had lied in court about a murder he had been convicted of many years before], disapproved in part on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Harris (2008) 43 Cal.4th 1269, 1291-1292 [not allowing prosecution witness who described alleged murderer's incriminating statements to be impeached with his poor performance on juvenile probation even though it showed lax character]; People v. Rodriguez (1999) 20 Cal.4th 1, 9 [preventing prosecution witness who saw the murder from the roof of his apartment building from being impeached with evidence disputing his claim that he had management's permission to be there].)
" 'Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]' . . . ' "The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." ' " (People v. Lewis (2001) 26 Cal.4th 334, 374-375.) We review the trial court's evidentiary rulings for abuse of discretion. (Ibid.)
The right of confrontation and cross-examination " 'is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal,' " and deprivation of an accused's right to cross-examine the witnesses against him is a denial of due process. (People v. Brown (2003) 31 Cal.4th 518, 538.) The right to confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) State evidentiary rules "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense." (People v. Cunningham (2001) 25 Cal.4th 926, 999; see Crane v. Kentucky (1986) 476 U.S. 683, 690-691; Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.)
It is well settled, however, that not every restriction on a defendant's desired method of cross-examination constitutes a constitutional violation. (People v. Harris (2008) 43 Cal.4th 1269, 1291-1292; People v. Singleton (2010) 182 Cal.App.4th 1, 18.) The routine application of state evidentiary rules does not ordinarily infringe upon a defendant's due process rights. (People v. Hovarter (2008) 44 Cal.4th 983, 1010; People v. Solomon (2010) 49 Cal.4th 792, 841; People v. Lewis (2009) 46 Cal.4th 1255, 1284.) The right of confrontation is not absolute, and may, in appropriate cases, " 'bow to accommodate other legitimate interests in the criminal trial process.' " (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1139; People v. Brown, supra, 31 Cal.4th at p. 538.) " '[T]he Confrontation Clause guarantees an opportunity for effective cross- examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (People v. King (2010) 183 Cal.App.4th 1281, 1314-1315.)
Thus, while the complete exclusion of an accused's defense may constitute federal constitutional error, excluding defense evidence on a minor, subsidiary, collateral, or marginally relevant point does not infringe upon the right to present a defense. (People v. Harris, supra, 43 Cal.4th at pp. 1291-1292; People v. Cunningham, supra, 25 Cal.4th at p. 999; People v. Fudge (1994) 7 Cal.4th 1075, 1103; Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) A trial court's limitation on cross-examination pertaining to a witness's credibility does not violate the Sixth Amendment unless the defendant can show the prohibited cross-examination would have produced a significantly different impression of the witness's credibility. (People v. Hamilton (2009) 45 Cal.4th 863, 942-943; People v. Quartermain, supra, 16 Cal.4th at pp. 623-624; People v. King, supra, 183 Cal.App.4th at pp. 1314-1315.)
3. Analysis
The trial court reasonably determined that the circumstances giving rise to the traffic stop were collateral to any material disputed issue concerning defendant's possession and transportation for sale of methamphetamine. The sole purpose of the excluded evidence was to impeach the deputies' credibility, which was admittedly central to the defense theory that Deputy Del Real planted the drugs in defendant's car during the vehicle search. However, defendant was not prevented from presenting this defense or impeaching the deputies' credibility.
Defendant cross-examined both deputies at length, playing portions of the dashcam video recording and calling into question the legitimacy of the vehicle search, the reliability of the field tests, and the accuracy of the police report. Defense counsel pointedly directed the jury's attention to the fact that the dashcam video failed to record the discovery of the eyeglass case containing the drugs. And the jury could not have missed that Deputy Del Real significantly underestimated the number of pills in the baggies, and both deputies mistakenly believed the pills to be ecstasy, rather than methamphetamine. Thus, defendant had ample opportunity to develop his somewhat confusing theory that Del Real planted methamphetamine pills under the driver's seat of his car, and then inexplicably misstated the type and number of pills in the police report.
Under the circumstances, the trial court could reasonably conclude that evidence of the traffic stop was a collateral matter that had already been conclusively litigated at the hearing on the motion to suppress. Considering its collateral nature, the trial court could also reasonably conclude that any probative value of the evidence was outweighed by the potential confusion of the issues and undue consumption of time. The trial court did not abuse its discretion in precluding cross-examination on the circumstances giving rise to the previously litigated traffic stop, and the court's ruling did not violate defendant's constitutional rights. D. Denial of Defense Motion to Recall Deputy Del Real
Next, defendant argues the trial court erred in denying his motion to recall Deputy Del Real following the testimony of criminalist Della-Santina. According to defendant, Della-Santina's testimony necessitated the recall of Del Real to allow further questioning on: (1) whether Del Real met with Della-Santina before the preliminary hearing; (2) an apparent contradiction between Deputy Walker's testimony that "white pills" were found under the driver's seat and tested in the field, yielding a presumptive positive for amphetamine, and Della-Santina's testimony that the rectangular white pills in one of the baggies were not found to contain a controlled substance; (3) the discrepancy in the colors of the presumptive tests used in the field and in the district attorney's forensic lab; and (4) the difference in the number of baggies Del Real claimed to have found in the eyeglass case, and the baggies that Della-Santina claimed to have received in the lab. According to defendant, Del Real's recall was necessary for the defense to ensure the jury had the "full picture of inconsistencies and discrepancies in the deputies' various reporting of the incident and evidence," and to ensure a fair trial. We disagree.
Evidence Code section 778 provides the court discretion to decide whether to permit a party to recall a witness. (See Evid. Code, § 778 ["After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court's discretion"].) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10; see also People v. Cooks (1983) 141 Cal.App.3d 224, 327 [reviewing refusal to allow counsel to recall witness for abuse of discretion].)
There was no abuse of discretion here. Defendant had a full and fair opportunity to examine Deputy Del Real on the issues he now asserts, as we discuss briefly below.
1. Meeting with Della-Santina
Defendant cross-examined Del Real at length and elicited testimony that he spoke with an unidentified criminalist prior to the preliminary hearing. Defendant also cross-examined Della-Santina, who denied speaking with any officer before the preliminary hearing. The jury was thus aware of the potential inconsistency, and the trial court could reasonably conclude that jurors could evaluate Del Real's credibility without the necessity of hearing from him again.
2. Field Test of "White Pills"
Defendant posits a conflict between Deputy Walker's testimony that "white pills" were found under the driver's seat and tested in the field, yielding a presumptive positive for amphetamine, and Della-Santina's testimony that rectangular white pills in one of the baggies did not contain a controlled substance. Even assuming there was such a conflict, however, there was no evidence that Deputy Del Real was involved in performing the field test, and the trial court could reasonably conclude that recalling him would not assist the jury in evaluating the evidence or resolving any inconsistencies.
3. Presumptive Color Tests
Defendant posits another conflict between evidence the presumptive color test performed in the field—the NIK test—produces a blue color to indicate a positive result, while the presumptive color tests performed in the lab—the marquis and nitroprusside tests—produce different colors, namely, orange, brown or cobalt blue. Even assuming there was a conflict—an assumption rendered doubtful by Della-Santina's testimony that the presumptive color tests used in the lab are different from those used in the field—the trial court could reasonably conclude that Deputy Del Real, who was not shown to have any special expertise in presumptive color tests, would be unlikely to assist the jury in resolving it, making it unnecessary to recall him.
4. Number of Baggies
Finally, defendant points to an apparent conflict in the evidence regarding the number of baggies found in the eyeglass case and the number of evidence bags received by the lab. As noted, Deputy Del Real testified that he found two baggies in the eyeglass case under the driver's seat of defendant's car. Although the record is not entirely clear, Del Real indicated that he placed the baggies in a single vacuum sealed evidence bag, which he labeled and booked into evidence. Della-Santina, by contrast, testified that he received two sealed evidence bags, each containing a single baggie. Although there exists an apparent conflict in the evidence regarding the number of evidence bags used to contain the two baggies, the conflict, to the extent there was one, was nothing new. Defense counsel foreshadowed the issue in opening argument, stating, "We said there were two baggies inside of the glass[es] case, the two baggies turned into one baggie, a sandwich baggie, containing two additional baggies. This is later on. The second baggie also has two additional baggies inside of it, so now we have six baggies." Defense counsel cross-examined Del Real and Della-Santina on the issue, focusing specifically on the number of baggies booked into evidence and the number of bags received by the lab. On the record before us, the trial court could reasonably conclude that any conflict regarding the number of baggies and/or the number of evidence bags had been thoroughly explored, making the recall of Del Real unnecessary. E. Failure to Instruct with Lesser Included Offense
Defendant next argues the trial court erred in failing to sua sponte instruct on simple possession as a lesser included offense of possession of methamphetamine for sale. We reject this argument.
Simple possession is a lesser included offense of possession of a controlled substance for sale. (People v. Oldham (2000) 81 Cal.App.4th 1, 16.) The trial court has a sua sponte duty to instruct the jury on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, "but not when there is no evidence the offense was less than that charged." (People v. Saldana (1984) 157 Cal.App.3d 443, 454 (Saldana); see People v. Birks (1998) 19 Cal.4th 108, 118.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162.) Instructions on lesser included offenses are required only if the evidence would justify a conviction of the lesser included offense. (People v. Lopez (1998) 19 Cal.4th 282, 287-288; People v. Leach (1985) 41 Cal.3d 92, 106.) " 'On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.' " (People v. Avila (2009) 46 Cal.4th 680, 705.)
Here, there was no substantial evidence in the record from which a reasonable jury could infer that defendant possessed methamphetamine pills for some purpose other than to sell them. Deputies Del Real and Walker found 144 methamphetamine pills in defendant's car, enough to provide between 48 and 144 individual doses. The uncontradicted testimony of the prosecution's drug expert, Detective McEntire, was that most methamphetamine users carry no more than they intend to use. Deputies Del Real and Walker also found $2,000 in cash and handwritten notes consistent with a drug dealer's pay/owe sheet. As we have discussed, the foregoing evidence supports a finding that defendant was guilty of possession for sale. By contrast, there was no substantial evidence of simple possession. There was no evidence that defendant was holding the pills for someone else or intended to use them himself. (Cf. Saldana, supra, 157 Cal.App.3d at pp. 456-457 [simple possession instruction should have been given when evidence suggested that defendant may have been holding heroin for his brother's personal use]; People v. Walker (2015) 237 Cal.App.4th 111, 117 [simple possession instruction should have been given when defendant claimed marijuana was for his own personal use].) To the contrary, the defense theory was that defendant did not possess methamphetamine at all, but rather, was the victim of an evidence planting scheme. On this record, we conclude the trial court had no sua sponte duty to instruct the jury on simple possession as a lesser included offense of possession of methamphetamine for sale. (People v. Anderson (1979) 97 Cal.App.3d 419, 425 ["Where the giving of the instruction is in direct conflict with the defense theory, the court does not have the sua sponte duty of giving that instruction," italics omitted].) F. People's Exhibit 6
This number does not include the six rectangular white pills that did not contain methamphetamine.
Defendant next raises two arguments concerning People's Exhibit 6, a video recording which we shall describe momentarily. First, he argues the trial court erred in denying a petition to unseal juror information to investigate grounds for filing a new trial motion based on Exhibit 6, which was apparently admitted in error. Second, he argues defense counsel rendered ineffective assistance in failing to object to Exhibit 6. We reject both contentions.
1. Additional Background
Exhibit 6 is a split screen video showing, on one side, the vehicle search of defendant's car (which was played for the jury by means of a different video showing the vehicle search only) and, on the other side, the backseat of the patrol car, with defendant detained with his hands behind his back (which was not played for the jury). The video, though soundless, shows a deputy speaking with defendant briefly and withdrawing a wallet from his pocket. The video then shows the deputy looking through the wallet and examining several items.
Exhibit 6 was moved into evidence without objection. Exhibit 6 was then sent to the jury room, also without objection.
Following the verdict, the parties appeared for the bifurcated proceeding on defendant's prior convictions. Before the proceeding began, defense counsel reported that he had just talked with six jurors, including the foreperson. According to defense counsel, these jurors indicated that they had been heavily influenced by Exhibit 6, which they interpreted as showing one of the deputies finding the pay/owe sheet in defendant's wallet. The prosecutor acknowledged that Exhibit 6 should not have been admitted into evidence.
Defendant filed a petition to unseal juror information pursuant to Code of Civil Procedure section 237. The trial court held a hearing on the petition. The trial court began by confirming that People's Exhibit 6 had been properly admitted and provided to the jury. The trial court then stated, "I'm not inclined to allow the unsealing of the juror information to determine whether the jury viewed the evidence and inquire[] of them, 'Did you view Exhibit 6?' Because I'll just assume on your behalf that they did, because it was a properly admitted piece of evidence. [¶] So there's no point in opening up, unsealing the confidential juror information." The trial court further found that the admission of Exhibit 6—which defense counsel described as "a mistake"—was not prejudicial, as the video does not clearly show the deputy removing the pay/owe sheet from defendant's wallet.
We have reviewed Exhibit 6 and agree that the video does not clearly show the items removed from defendant's wallet.
2. Denial of Petition to Unseal Juror Information
Defendant argues the trial court erred in denying the petition to unseal juror information. He argues the trial court erroneously focused on the question of whether juror information was necessary for a new trial motion based on juror misconduct, and failed to consider whether the information might have supported a motion based on ineffective assistance of counsel. (See generally People v. Chavez (1996) 44 Cal.App.4th 1144, 1148 ["A trial court may grant a motion for new trial on the ground of ineffective assistance of counsel].) We are not persuaded.
After the jury's verdict is recorded in a criminal case, personal identifying information about the jurors who served on the trial is sealed. (Code Civ. Proc., § 237, subd. (a)(2).) A defendant may "petition the court for access to personal juror information . . . for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) But "[a]bsent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.) A trial court's denial of a petition to disclose juror information is reviewed for abuse of discretion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991.)
Defendant fails to show an abuse of discretion. As a threshold matter, defendant never suggested that he was seeking juror information to support a new trial motion based on ineffective assistance of counsel. The trial court could not have abused its discretion by failing to consider an argument defendant never made. But even assuming arguendo that defendant sought juror information to support a new trial motion based on ineffective assistance of counsel, there was no abuse of discretion. Defendant already had evidence that jurors viewed Exhibit 6 and believed it to be dispositive. The trial court could reasonably conclude that no further information was necessary.
3. Ineffective Assistance of Counsel
Defendant next argues that defense counsel rendered ineffective assistance by failing to object to Exhibit 6. However, defendant does not argue that Exhibit 6 was inadmissible, and we perceive no basis for so concluding. Because there was nothing improper in the admission of Exhibit 6, and no reason to believe an evidentiary objection would have been sustained, defense counsel cannot have been ineffective for failing to make one. (People v. Cudjo (1993) 6 Cal.4th 585, 616 ["Because there was no sound legal basis for objections, counsel's failure to object to the admission of the evidence cannot establish ineffective assistance"]; see also People v. Diaz (1992) 3 Cal.4th 495, 562 [failure to object to admissible evidence does not constitute ineffective assistance of counsel because objection would have been futile].) To the extent defendant contends defense counsel was ineffective for failing to enforce an off-the-record agreement to exclude Exhibit 6, we reject the contention, as we have no information concerning the terms of any such agreement (if indeed there was one), and consequently, no way of assessing whether defense counsel's performance was deficient. G. Cumulative Error
Defendant argues that cumulative error requires reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Having rejected all of defendant's claims of error, "we discern no prejudice—singly or cumulatively—that warrants reversal." (People v. Tuggles (2009) 179 Cal.App.4th 339, 388.) H. Fees, Fines, and Assessments
Finally, defendant argues the trial court erred by imposing the $80 court operations assessment (Pen. Code, § 1465.8), the $60 court facilities assessment (Gov. Code, § 70373), and the minimum $300 restitution fine (Pen. Code, § 1202.4) without finding that he has the ability to pay them. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the imposition of these fines and assessments without an ability-to-pay hearing was a violation of his right to due process.
The People respond that defendant forfeited his Dueñas claim by failing to object on due process grounds in the trial court. The People's argument lacks merit. Although defense counsel did not invoke Dueñas (which had not yet been decided) or articulate a due process argument, he clearly objected to the imposition of any fines, fees, or assessments on the ground that defendant lacked the ability to pay. That objection was sufficient to preserve the issue. (People v. Scott (1978) 21 Cal.3d 284, 290 [a defendant's objection is sufficient if it "fairly apprises the trial court of the issue it is being called upon to decide"].)
The People do not address the merits of defendant's Dueñas claim. We assume without deciding that Dueñas was correctly decided. (But see People v. Hicks (2019) 40 Cal.App. 5th 320, 325-327 , review granted Nov. 26, 2019, S258946 [holding that due process does not speak to the issue of restitution fines, and Dueñas was wrong to conclude otherwise].) As we shall explain, any error in the trial court's purported failure to consider defendant's ability to pay the court facilities and court operations assessments and minimum restitution fine was harmless.
In Dueñas, the defendant was an indigent, homeless mother of two young children, afflicted with cerebral palsy, and barely surviving on public assistance. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Her driver's license had been suspended because she was unable to pay three juvenile citations, and she subsequently suffered a series of misdemeanor convictions for driving with a suspended license. (Id. at p. 1161.) In each case, she "was offered the ostensible choice of paying a fine or serving jail time in lieu of payment," but each time she was unable to pay and thus served time in jail. (Ibid.) When she suffered another misdemeanor conviction for driving with a suspended license, she asserted that she was homeless and receiving public assistance and asked the trial court to set a hearing to determine her ability to pay. (Id. at pp. 1161- 1162.) The trial court struck some fees, but imposed the court facilities and court operations assessments, ruling that they were mandatory regardless of her inability to pay. (Id. at p. 1163.)
On appeal, the Dueñas court found it was a violation of constitutional due process to impose the court assessments required by Penal Code section 1465.8 and Government Code section 70373, neither of which was intended to be punitive, without finding that the defendant has the ability to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also found that, although a restitution fine imposed under Penal Code section 1202.4 was considered additional punishment for defendant's crime, that fine posed constitutional concerns because the trial court was precluded from considering ability to pay when imposing the minimum fine authorized by the statute. (Dueñas, supra, at pp. 1170-1171.) To avoid the constitutional problem, the court held that Penal Code section 1202.4 requires a trial court to impose a minimum fine regardless of ability to pay, but that execution of the fine must be stayed until the defendant's ability to pay is determined. (Dueñas, supra, at p. 1172.)
The Dueñas court was concerned with "the cascading consequences of imposing fines and assessments that a defendant cannot pay," which can interfere with an indigent defendant's fair treatment under the law by effectively punishing him or her for being poor. (Dueñas, supra, 30 Cal.App.5th at p. 1163; see id. at pp. 1166-1167.) The harm that caused the defendant's situation in Dueñas to rise to the level of a constitutional violation was the application of statutes imposing fines, fees, and assessments in the face of undisputed evidence that she was unable to pay and would inevitably suffer further penalties based solely on her indigence. In this case, by contrast, the record provides no indication that the challenged fees and fine—which have already been substantially reduced—would saddle defendant with the "inescapable, government-imposed debt trap" faced by the defendant in Dueñas. (People v. Johnson (2019) 35 Cal.App.5th 134, 139.)
Here, defendant was a full time employee of the State of California, and successfully maintained a position as a custodian until he was arrested and incarcerated in an unrelated case. Unlike the defendant in Dueñas, who was caught in a cycle of convictions and unpaid fines that "caused her financial obligations to 'snowball,' " contributing to her indigence and inability to pay, the record before us supports the conclusion that defendant had the ability to earn through future employment. (Dueñas, supra, 30 Cal.App.5th at p. 1164; see e.g., People v. Staley (1992) 10 Cal.App.4th 782, 783 [" '[A]bility to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed"].) We therefore conclude that, to the extent the trial court failed to consider defendant's ability to pay any fine or fee, and to the extent that failure violated defendant's right to due process, the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson, supra, 35 Cal.App.5th at pp. 139-140.)
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
MAURO, J.