Opinion
C097288
01-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MICHAEL CORNES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 62184473)
Keithley, J.[*]
Responding to a complaint about a car parked for several days in a neighborhood, a police officer searched the occupant of the driver's seat, defendant Joseph Michael Cornes, and found quantities of fentanyl and methamphetamine. A jury found defendant guilty of possession and transportation of fentanyl and methamphetamine for sale. On appeal, defendant contends: (1) his motion to dismiss the drug transportation counts should have been granted because the prosecution failed to prove he transported the drugs; (2) the trial court should not have admitted evidence of his prior conviction of possession of drugs for sale; (3) in closing argument, the prosecutor committed misconduct in commenting that defendant failed to subpoena witnesses to testify to "a lack of foot traffic or other activity suggesting sales of drugs"; and (4) cumulative error deprived defendant of a fair trial.
We disagree. In this instance, the presence of drugs on defendant's person in his car was circumstantial evidence of drug transportation. Evidence of a prior drug sale conviction is generally admitted to prove intent and the similarities between the prior conviction and the charged offense were sufficient for that purpose. It is well established that a prosecutor may comment on the defendant's failure to call logical witnesses. While we find one of the prosecutor's comments constitutes error, we find the comment was not prejudicial. And that even if all were error, there was no prejudice. Lastly, we conclude that with one nonprejudicial error, there can be no cumulative error. And that if all the prosecutor's comments discussed below were error, defendant was not deprived of a fair trial. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2022, a Roseville police officer responded to a call reporting that a suspicious vehicle had been parked for several days. The officer found defendant in the driver's seat. The officer handcuffed defendant and searched him. Defendant was wearing a satchel around his body. The satchel contained methamphetamine (5.833 grams), fentanyl combined with tramadol (11.433 grams), small plastic bags commonly used for individual drug doses, and a "tooter" straw. Cash totaling $355 was found in the satchel and defendant's wallet was folded in separate bundles of bills of different denominations, indicating separate transactions.
" '[T]ooters'" are straws used to ingest drugs. (People v. Nottoli (2011) 199 Cal.App.4th 531, 541.)
Defendant was charged with transporting fentanyl for sale (Health &Saf. Code, § 11352, subd. (a); count one), possession of fentanyl for sale (§ 11351; count two), transporting methamphetamine for sale (§ 11379, subd. (a); count three), and possession of methamphetamine for sale (§ 11378; count four).
Undesignated statutory references are to the Health and Safety Code.
At trial, after the People rested, defense counsel made an oral motion to dismiss counts one and three under Penal Code section 1118.1. The court denied the motion, finding that sufficient evidence existed to prove defendant transported the drugs.
The jury found defendant guilty of all counts. The trial court and the jury found true the allegations of circumstances in aggravation alleged in the information. The court sentenced defendant to an aggregate prison term of four years, consisting of: the middle term of four years on count one; the middle term of three years on count two, stayed under Penal Code section 654; one-third the middle term of three years on count three to be served concurrently; and the middle term of two years on count four, stayed under Penal Code section 654. In a separate case, the trial court imposed the lower term of one year four months for attempting to dissuade a witness, to be served concurrently. (Pen. Code, § 136.1., subd. (a)(2).)
Defendant pleaded no contest to this charge, which arose during trial.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Motion to Dismiss Transportation Counts
Defendant contends the trial court erred in denying his motion for acquittal under Penal Code section 1118.1 of the transportation charges, counts one and three, because defendant was found with controlled substances on his person in a parked vehicle and the prosecution presented no evidence that he drove the car with the drugs in it. Thus, defendant argues, there was no evidence of the essential element of transportation. We disagree.
Penal Code section 1118.1 provides in relevant part that the trial court, "at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
On a motion for judgment of acquittal under this provision, "the trial court applies the same standard as an appellate court reviewing the sufficiency of the evidence. The court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. [Citation.] We independently review the trial court's ruling." (People v. Harris (2008) 43 Cal.4th 1269, 1286; see also People v. Mumin (2023) 15 Cal.5th 176, 199 [" 'Sufficiency review essentially addresses whether "the government's case was so lacking that it should not have been submitted to the jury"' "].) Where, as here, the motion was brought at the close of the prosecution's casein-chief, we review the trial court's denial of the motion based on the evidence as it stood at that time. (People v. Ringo (2005) 134 Cal.App.4th 870, 880; see also People v. Cole (2004) 33 Cal.4th 1158, 1212-1213; People v. Sherman (2022) 86 Cal.App.5th 402, 410.) "Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) "The crux of the crime of transporting is movement of the contraband from one place to another." (People v. Kilborn (1970) 7 Cal.App.3d 998, 1003; People v. Lacross (2001) 91 Cal.App.4th 182, 185.) The crime may "be established by circumstantial evidence and any reasonable inferences drawn from that evidence." (Meza, at p. 1746.)
Here, when the search found drugs in a satchel on his person, defendant was sitting by himself in the driver's seat of an operable vehicle. This fact supports a reasonable inference that defendant drove and parked the car. Conversely, there was no evidence that any person in the neighborhood where he parked the car brought the drugs to defendant, notwithstanding the fact that someone in the neighborhood was sufficiently disturbed by the presence of defendant's car to report it to law enforcement. Defendant's girlfriend testified that defendant made extensive use of the car in the fall of 2021, driving to the Bay Area in the morning for work and coming back at night. She also testified that defendant had been living with her from March or April 2021 up until four days before he was arrested. When defendant was living with her, she never saw fentanyl or methamphetamine in her home. When she was in defendant's car, she saw no drugs in the vehicle. This evidence supports the inference that defendant obtained the drugs at some point after leaving her home and carried them in his car to the place where he parked. Lastly, methamphetamine and fentanyl were found in a satchel strapped to his body, a convenient form of carrying items while walking, which supports the inference that defendant effected transactions by walking from his car to a buyer. (People v. Ormiston (2003) 105 Cal.App.4th 676, 682-685 [walking is a form of transportation for purposes of section 11379], superseded by statute on other grounds as stated in People v. Martinez (2018) 4 Cal.5th 647, 650-651.)
Defendant's reliance on Kilborn is misplaced. In that case, the defendant was convicted of transporting a controlled substance based solely on evidence that LSD was found in his suitcase in an unlocked motel room. (People v. Kilborn, supra, 7 Cal.App.3d at p. 1001.) The appellate court reversed the conviction, rejecting the People's argument that "the pills found in [defendant's] possession must have been transported there in some manner, ergo, [defendant] transported them." (Id. at pp. 10021004.) The court reasoned that "[w]hile the evidence showed the LSD tablets were found in [his] suitcase in his room, the prosecution presented no evidence he carried or conveyed them from any place, to any place at any time. Evidence of unlawful possession is not evidence of transportation." (Id. at p. 1002.)
Unlike Kilborn, where the LSD could have easily been delivered to the motel room by someone else, here, the fentanyl and methamphetamine were discovered in defendant's vehicle, which he drove and parked at the location where the search and arrest occurred. There was no evidence that anyone contacted defendant in his parked car. While it is theoretically possible that someone delivered the drugs to defendant when he parked, there is no evidence of such delivery. As we have described, there is circumstantial evidence of the more reasonable inference that the drugs were in the car when he drove it and parked.
The trial court did not err in denying defendant's motion to dismiss the transportation charges.
II
Prior Conviction
Before trial, the People moved to admit, and the defendant moved to exclude, evidence of defendant's 2017 conviction for possession of controlled substances for sale. The trial court ruled that the evidence was admissible to show defendant's intent to commit the charged offenses.
Defendant contends the trial court erred by admitting evidence of the prior conviction. Defendant argues, as he did below, that the prior conviction was not sufficiently similar to permit an inference that he harbored the same intent in the current offenses.
Evidence that the defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition. (People v. Rivera (2019) 7 Cal.5th 306, 339-340; Evid. Code, § 1101, subd. (a).) However, under Evidence Code section 1101, subdivision (b), evidence of defendant's prior crimes is admissible when it is relevant to prove some fact at issue in the case other than the criminal disposition of the accused, such as identity, knowledge, or intent. (Rivera, at p. 340.) "To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (People v. Jones (2011) 51 Cal.4th 346, 371.) "The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent ...." (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859.) To show intent, the prior conduct need only be sufficiently similar to support an inference that defendant probably harbored the same intent in each instance. (Ibid.)
"In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. (People v. Pijal (1973) 33 Cal.App.3d 682, 691 . . . .)" (People v. Williams (2009) 170 Cal.App.4th 587, 607; see also People v. Ghebretensae (2013) 222 Cal.App.4th 741, 753-754, disapproved on other grounds in People v. Bryant (2021) 11 Cal.5th 976, 986, fn. 5.)
We review a trial court's ruling on the admission of prior conviction evidence for abuse of discretion. (People v. Washington (2021) 61 Cal.App.5th 776, 787.)" 'Specifically, we will not disturb the trial court's ruling "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." '" (Ibid.)
Defendant argues that the prior conviction was dissimilar in that it involved a smaller amount of different drugs (5.3 grams of cocaine and 3.2 grams of heroin), a larger amount of cash ($2,231), two scales, and multiple cell phones. Also, the car defendant was in had two occupants and was not parked but instead was moving slowly through a neighborhood, the money was in rolls not bundles, and the drugs were in baggies between the seats of a car, not in a satchel.
Defendant places particular emphasis on his claim in this case that the drugs were for personal use, arguing there was no report in the prior case of defendant claiming he possessed drugs for personal use. This is incorrect. In the prior case, defendant claimed the heroin was for personal use and the cocaine found in the car did not belong to him.
Thus, in both instances, defendant offered an explanation for the presence of drugs in his car other than a purpose to sell them.
In any event, the similarities between defendant's prior conviction and his current crime are more striking than the differences. In both instances, a 911 caller reported a suspicious car in the neighborhood with defendant at the wheel, and the car was found to contain two types of controlled substances, plus a substantial amount of cash. The absence, for example, of scales and baggies is not significant because exact similarity between the charged and uncharged acts is not required to prove intent. It is only required that they be similar enough to permit an inference of intent. (People v. Rowland (1992) 4 Cal.4th 238, 261.) The presence of other or different facts in the prior incident does not negate the overall similarity.
We conclude that defendant has failed to show that the trial court abused its discretion by admitting evidence of his prior conviction on the issue of intent.
III
Prosecutor's Comments on the Defense's Ability to Subpoena Witnesses
Defendant contends the prosecutor committed misconduct in comments made in closing argument regarding the defendant's failure to subpoena as witnesses the 911 callers who reported defendant's vehicle parked for days in the neighborhood.
In closing argument, defense counsel argued that the police officer responded to multiple 911 calls reporting that defendant's car had not moved for days and there were no reports of any person coming and going to the car, presumably to buy drugs. Defense counsel argued that there was an absence of evidence as to transportation and as to intent, and questioned the quality of the investigation, specifically addressing the prosecution's failure to call as witnesses the residents who called 911 regarding defendant's stationary car. To show the absence of evidence on transportation, defense counsel stated: "That car had been seen there by neighbors stationary for several days. That was the testimony of Officer Van Der Wende, and that was the call that he received. There's never been an iota of evidence that that car was moving while the drugs were in it."
In this argument, defense counsel agreed that the officer's testimony was that defendant's car had not moved and had been there for several days. Defense counsel then argued that the investigation was flawed, especially as to intent to sell. Defense counsel pointed out that no witnesses, including those who called about the car, had been brought forward by the prosecution to say that defendant sold drugs. "No evidence whatsoever of hand-to-hand or shady characters coming up and approaching this vehicle that had been stationary for several days. [¶] . . . [¶] [P]resumably, if the theory is that he was in that car slinging drugs there would have been someone that [sic] they would been able to track down through various means."
In rebuttal closing argument, the prosecutor reminded the jury that the prosecution has the burden to prove the truth of the transportation and intent elements, and if not proved, then the jury should find defendant not guilty. The prosecutor then went on to say, "However, consider what evidence was not presented. The defense has the ability to subpoena witnesses."
To this last remark, defense counsel objected, "[b]urden shifting." The trial court allowed the prosecutor to continue. When the prosecutor reiterated the ability of the defense to subpoena witnesses, adding, "They have the ability to bring in evidence that will support their claim," defense counsel objected "[b]urden shifting" again. The court then admonished the jury that the prosecution has the burden of proof beyond a reasonable doubt and allowed the prosecutor to continue.
The prosecutor then argued that the reason why the jury should consider the defense's ability to subpoena witnesses, and its failure to do so, was because the presence of the 911 witnesses would provide context, implying that the reason the defense did not call them was that it would not favor the defense. Put another way, the essence of the argument by the prosecutor was that although the defense could have called these witnesses, the defense did not call them because to call them would hurt the defense. This last remark of the prosecutor impermissibly shifted the burden to the defense.
Having established that the prosecutor's third remark as to the defense's ability to subpoena witnesses was error, we turn to the analysis of the impact of that error. First, we observe that the prosecutor's remarks were in rebuttal argument, responding to defense counsel's argument about the absence of certain witnesses. It is the case that the prosecutor may comment on the failure of the defense to call logical witnesses, or comment on their ability to do so.
In People v. Steskal (2021) 11 Cal.5th 332, the California Supreme Court said: "We have long held that a prosecutor may make' "comments based on the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses." '" (Id. at p. 351, citing People v. Gomez (2018) 6 Cal.5th 243, 299; People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) The jury's consideration of the defense's failure to call logical witnesses does not impermissibly shift the burden of proof. (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) In sum, "it is neither unusual nor improper to comment on the failure to call logical witnesses." (Gonzales, at p. 1275.)
We distinguish here that when the prosecution is permitted to reference the ability of the defense to call logical witnesses or produce material evidence, or the absence thereof, such comment is permissible if the witness or evidence would favor the defense. In this case, the prosecutor's argument was in error as there would be no logical reason for the defense to call witnesses who had called the police to respond to defendant's car. The defense was not saying there was no evidence the car was stationary. Rather, counsel was saying there was evidence the car was stationary, as testified to by the officer when specifically asked about the statements of the 911 witnesses. Accepting the officer's representation of the 911 witness's statements, the defense argued there was not the required evidence of movement for the transportation charge; essentially arguing the People had not proved their case.
Moreover, the prosecutor's recited theory that the defense's failure to call the 911 witnesses was because their absence favored the defense, essentially conceded the issue that those uncalled witnesses would not have been favorable to the defense. As such, there is no logical reason why the defense would have called them, thereby making the prosecutor's remarks improper.
Rather than opening the door for prosecution comment, the defense's argument merely stood on the right to have the People prove every element. The prosecution could certainly respond in rebuttal as to why the prosecution did not call those 911 witnesses but defense counsel's argument in this case did not open the door for the prosecution to ask the jury to consider that the defense did not call those witnesses.
"We have explained that 'a rule permitting comment on a defendant's failure to call witnesses is subject to criticism if applied when the reason for his failure to do so is ambiguous, or if the defendant is simply standing on his right to have the state prove his guilt,' and that a trial court may disallow such comment for these reasons. (People v. Ford (1988) 45 Cal.3d 431, 447 . . . .) Our cases also recognize that '[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and . . . an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.' (People v. Bradford, [supra,] 15 Cal.4th . . . 1340 . . . .; see People v. Bennett (2009) 45 Cal.4th 577, 596 . . . [comments do not impermissibly shift the burden of proof when the prosecutor does not 'state or imply that defendant had a duty to produce evidence'].)" (People v. Steskal, supra, 11 Cal.5th at p. 352.)
On the prosecutor's third reference of the ability of the defense to subpoena witnesses, specifically the 911 witnesses, we find the rule allowing comment on defense's failure to call logical witnesses should not be applied, as the defense was standing on defendant's right to have the state prove his guilt. While this third reference in the prosecutor's rebuttal argument constituted error, we find the error was harmless.
The trial court and prosecutor previously reminded the jury that the prosecution had the burden to prove the charges beyond a reasonable doubt, and the prosecutor did not argue the defense had a duty to call the witnesses at issue.
Though the remark was error, we find no prejudice and conclude the prosecutor did not commit misconduct.
IV
Cumulative Error
Lastly, defendant contends that cumulative error deprived him of a fair trial. "The premise behind the cumulative error doctrine is that, while a number of errors may be harmless taken individually, their cumulative effect requires reversal." (People v. Mani (2022) 74 Cal.App.5th 343, 378.) However, since we have found only one of the asserted offending arguments to constitute error, there are no errors to accumulate. (People v. Weaver (2012) 53 Cal.4th 1056, 1077.) Moreover, even if the collection of arguments by the prosecutor all constituted error, those arguments collectively did not deprive defendant of a fair trial. Defendant was not deprived of a fair trial. (Mani, at p. 379.)
DISPOSITION
The judgment is affirmed.
I concur: Hull, Acting P. J.
DUARTE, J., Concurring.
I agree with the result of the majority's opinion and agree with Parts I and II in their entirety. As to Part IV, I concur in the result.
As for Part III, I would hold that all of the prosecutor's comments at issue here were improper burden shifting, as I next explain.
Although I agree with the majority's observation that: "It is well established that a prosecutor may comment on the defendant's failure to call logical witnesses," that is not what happened here. (Maj. opn., ante, p. 2.) Because the majority appears to excuse all but one of the string of four improper comments by the prosecutor as something other than error, I write separately to explain my position.
As the majority discusses, in closing argument defense counsel pointed out that a law enforcement witness testified that he had responded to multiple (civilian) calls reporting that defendant's car had not moved for days. The law enforcement witness did not testify to any drug trafficking or similar suspicious activity occurring in or around the car, and the prosecution called no one who did. Defense counsel argued there was no evidence of defendant's transportation of drugs or intent to sell, stating: "That car had been seen there by neighbors stationary for several days.... There's never been an iota of evidence that that car was moving while the drugs were in it." Counsel continued: "No evidence whatsoever of hand-to-hand or shady characters coming up and approaching this vehicle that had been stationary for several days." "Presumably, if the theory is that he was in that car slinging drugs there would have been someone that they would been able to track down through various means."
It was to this argument challenging the prosecution's evidence as insufficient to meet its burden that the prosecutor first exhorted the jury in rebuttal to "consider what evidence was not presented" and reminded the jury that "[t]he defense has the ability to subpoena witnesses." (Italics added.) This suggestion that somehow the defense had the burden to shore up weak points in the prosecutor's case is clearly improper argument. Nothing defense counsel had argued made this rebuttal argument proper.
Although the Attorney General argues in his briefing that "it would have been logical for the defense to call a witness to support that appellant's vehicle was stationary for several days" and that the "prosecutor properly pointed out that the defense could have subpoenaed witnesses for this fact," that assertion is nonsensical. Why would the defense call witnesses to support a favorable fact to which the prosecution's law enforcement witness had already testified--that the car was stationary? Further, defense counsel's challenge to the evidence had nothing to do with the callers' actual observations of the car. In argument, defense counsel embraced the testimony that the car was stationary, as he should--he was arguing against transportation, so the testimony that the car was stationary was favorable to his client and his argument did not challenge it. Instead, defense counsel pointed out that law enforcement had access to witnesses who had seen the car and reported it as (strangely) stationary, yet there was no evidence from law enforcement or those same witnesses who had been observing the car that defendant "was in that car slinging drugs." In other words, the testimony produced by the prosecution--including witnesses to the car's activity and the activity around it--had not proven transportation. This argument does not open the door to logical witness arguments in rebuttal.
The trial court ignored that first objection to "burden shifting," telling the prosecutor only to "continue." In my view, the objection should have been sustained at that point and the argument stricken and jury admonished. But instead, unchecked, the prosecutor immediately added: "They [defense] have the ability to subpoena witnesses. They have the ability to bring in evidence that will support their claim." This prompted defense counsel's second objection to burden shifting; this time, the trial court admonished the jury that the prosecution had the burden of proof beyond a reasonable doubt, but again allowed the prosecutor to continue without ruling on that (second) objection. Although the prosecutor's reference to the defense "claim" is vague, it appears the referenced "claim" made by defense counsel was that the evidence presented by the prosecution was insufficient to prove defendant's guilt, i.e., the prosecution had not proven defendant committed the charged crimes. Suggesting that defendant somehow needed to "support" his "claim" of innocence is burden shifting. The objection should have been sustained and the argument stricken.
Instead, the prosecutor then doubled down, asking "[w]hy is that important?" and "why didn't they [defense] go find those people [who] made those calls [about the car]?" This prompted defense counsel's third objection to burden shifting, on which the trial court again did not rule, but again admonished the jury that the prosecutor had the burden of proof. The court then explicitly "allow[ed] the prosecutor to continue," at which time the prosecutor asked the jury: "Why didn't they [defense] find those people that made those calls and bring them up here? Why aren't we talking to them? Because if they are here, [defense] can't use that vague information to engender a false sense of innocence because then it's evidence, not just a 9-1-1 call that might have been placed with context gone. So think about that."
Even the majority agrees that this last portion of the prosecutor's argument improperly shifted the burden to defense. (Maj. opn., ante, pp. 10-12.)
However, I must disagree with the majority's vague assertion that "[t]he prosecution could certainly respond in rebuttal as to why the prosecution did not call those 911 witnesses." (Maj. opn., ante, p. 11.) The prosecutor cannot argue extra record evidence, and I see no evidence in the record as to why the prosecution did not call to the stand the witnesses who reported the car's stationary status to law enforcement.
Here, there were no "logical witnesses" for defendant to call in the context of the prosecutor's argument, as defendant's argument (that all of the prosecutor's burden shifting comments purported to answer) had focused on the prosecutor's failure to call witnesses supporting the prosecution's case, not the defense case. As explained above, defense counsel argued the prosecutor had not called witnesses to support that defendant was dealing drugs from the car, and that there was no evidence he was doing so. Defense counsel was allowed to argue the People's case was weak and unsupported and poorly investigated without opening the door to "logical witness arguments."
A logical witness argument properly occurs after defense counsel argues a favorable theory or affirmative defense that is speculative and has limited to no evidentiary support--such as that a defendant might have an alibi or might have been physically or mentally incapable of committing the crime--but does not call a supportive witness. The prosecutor is then permitted to observe that any evidence bolstering that theory or defense was within the defendant's reach, as defense counsel also has the ability to subpoena witnesses that have anything to say in his favor (or, similarly, to cast doubt on the prosecution's evidence). Here, as I have described, there was no speculative assertion made by the defense that could properly be challenged in this manner.
Because these four instances of improper argument by the prosecutor encompassed less than two pages of the transcript and included multiple advisements by the court and one by the prosecutor to the jury regarding the fact that the prosecutor retains the burden of proof, as well as the relative strength of the prosecution's case for transportation and intent to sell, I agree with the majority that the errors were harmless, individually and in their entirety. But I cannot agree that at any point the prosecutor's comments at issue here were proper, and in a weaker case or a case without contemporaneous admonitions I could easily envision that prejudice would be generated by this unchecked series of errors.
[*] Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.