Opinion
A144154
04-26-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 51414754)
A jury convicted Anthony Hernandez of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and transporting methamphetamine (§ 11379, subd. (a)). The trial court found Hernandez's prior conviction allegations true (§ 11370.2, subd. (c), Pen. Code, § 667.5, subd. (b)) and sentenced Hernandez to 10 years in county jail.
All undesignated statutory references are to the Health and Safety Code.
Hernandez appeals. He contends: (1) the prosecutor committed misconduct during closing argument by "vouching" for a testifying police officer and by "impugn[ing] the integrity of defense counsel"; (2) insufficient evidence supports the convictions; (3) he cannot be convicted of possessing and transporting "the same substance"; and (4) the magistrate's exclusion of co-defendant Desiree Bello from his preliminary hearing violated his "right to a public trial." He also argues — and the Attorney General agrees — he is entitled to one additional day of presentence custody credit.
Bello's appeal was dismissed and she is mentioned only where necessary.
We modify the judgment regarding Hernandez's custody credit. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Hernandez with possessing methamphetamine for sale (§ 11378) and transporting methamphetamine (§ 11379, subd. (a)). The prosecution also alleged Hernandez had numerous prior convictions (§ 11370.2, subd. (c), Pen. Code, § 667.5, subd. (b)). The magistrate excluded Bello from Hernandez's preliminary hearing and held Hernandez to answer to the charges. Hernandez moved to set aside the information, arguing Bello's exclusion violated his right to a public trial. The trial court denied the motion and this court denied Hernandez's petition for writ relief.
Trial
On a June 2014 evening, Contra Costa County Sheriff's Deputy Valerie Vradenburg and her partner, Deputy Kristy Trindade, stopped a gold Lexus with expired registration tags. Hernandez and Bello were in the rear passenger seats. Hernandez seemed nervous and repeatedly put his hand in the pocket of his shorts. He "was breathing faster than normal," his face was turning "red," and his voice was trembling. Deputy Trindade learned Hernandez had an outstanding warrant and asked him to step out of the car. As Deputy Vradenburg took Hernandez out of the car, she saw "a small bag of a white crystalline substance on the back seat right where he was sitting."
Deputy Trindade ordered Bello to get out of the car and noticed two golf-ball-sized bulges on Bello's hips. Deputy Trindade handcuffed Bello and searched her pants. On Bello's right hip, Deputy Trindade found six baggies of suspected methamphetamine "inside of a big Ziploc baggie." On Bello's left hip, Deputy Trindade found "two individual baggies" of suspected methamphetamine. Testing confirmed the eight baggies contained 87 grams of methamphetamine. According to Deputy Trindade, the average methamphetamine dose is one-tenth of a gram, meaning Bello "possessed over a thousand uses of methamphetamine on her person that day."
Deputy Trindade searched the car. In the passenger compartment, she found "another small Ziploc baggie of a crystal-like substance along with a black wallet" containing Hernandez's identification and $1,380, comprised of $100, $20, and $10 bills. In the trunk, Deputy Trindade found men's clothing. She also found a laptop bag containing "multiple . . . empty sandwich baggies" similar to those Bello possessed, and computers and iPhones.
Deputy Trindade found a "crystal methamphetamine pipe" in the car but it broke before it was booked into evidence. The deputies did not find "pay-owe" sheets or scales in the car.
Steven Lynn, an inspector in the narcotics and gang unit of the Contra Costa District Attorney's office, testified as an expert on possession of methamphetamine for sale. Inspector Lynn testified as an expert more than 30 times in prosecutions for possession of methamphetamine for sale. Before working in the District Attorney's Office, Inspector Lynn was a deputy sheriff for over 15 years. As a narcotics investigator, Inspector Lynn made "well over a hundred" arrests in suspected methamphetamine possession for sale cases, and had "hundreds" of conversations with suspected methamphetamine users about how and where they purchase methamphetamine. Inspector Lynn purchased methamphetamine at least 30 times while working undercover. He investigated at least 25 prosecutions where a male and female worked together to distribute methamphetamine and the male "purposely has the female carry the methamphetamine . . . the males . . . in these types of situations are the dominant person, they'll put it off on the female so that they don't have to take the rap." Inspector Lynn described two scenarios where male and female suspects divided responsibilities exactly like Hernandez and Bello.
When determining whether methamphetamine is possessed for sale, Inspector Lynn considered "the weight of the methamphetamine, how it's packaged, additional packaging . . . . [¶] [S]ometimes you have users that are just pure users, and sometimes you have users that not only use but sell. That's quite common because of the cost of using methamphetamine." Inspector Lynn opined the methamphetamine was possessed for sale based on: (1) the total weight of the methamphetamine; (2) the methamphetamine's street value; (3) the way the methamphetamine was packaged; (4) the large of amount of cash found in Hernandez's wallet, in denominations consistent with drug sales; (5) the empty baggies — i.e. "extra packaging" — which could be used to further subdivide the methamphetamine; and (6) the presence of electronics, items "oftentimes . . . traded for methamphetamine."
In 2004 and 2011, Hernandez was convicted of possessing methamphetamine for sale. In 2009, a Concord police officer pulled over a car containing packages of marijuana and methamphetamine, digital scales, iPods, and cell phones. Hernandez and others were in the car, and Hernandez had $1,005 in cash.
Hernandez's friend — who had been convicted of possessing methamphetamine for sale — testified for Hernandez at trial. The friend hired Hernandez to perform construction-related work and paid Hernandez in $100 and $20 bills.
Verdict and Sentence
The jury convicted Hernandez of possessing methamphetamine for sale (§ 11378) and transporting methamphetamine (§ 11379, subd. (a)). The court found the prior conviction allegations true (§ 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b)), sentenced Hernandez to 10 years in county jail, and awarded him 217 days of presentence custody credit.
DISCUSSION
I.
Hernandez's Prosecutorial Misconduct Claim Fails
Hernandez claims the prosecutor committed misconduct during closing argument by vouching for Inspector Lynn and by impugning defense counsel. We disagree.
A. Background
The prosecutor argued it is "common in [the drug-dealing] industry for the man to be the enforcer, to carry the cash, to separate himself from the drugs and pin the drugs on somebody else. [¶] Mr. Lynn told you the reasons why he learned this happens frequently, and he has investigated many cases where the scenario was exactly the same as this. And I'm asking you to take very seriously Mr. Lynn's testimony because he is coming from a place of great experience in telling you that." The court overruled defense counsel's "improper vouching" objection.
Near the end of her closing argument, the prosecutor told the jury "the defense is going to have the opportunity to give their closing arguments if they choose to do so. I want to ask you to make sure that the defense arguments are based on evidence and testimony received in this trial." In particular, the prosecutor asked the jury to "question any unreasonable alternatives that may be posed to you, such as Ms. Bello was going to use all of that methamphetamine or Mr. Hernandez didn't know that the methamphetamine that was bulging out of Ms. Bello's pants was there." The prosecutor asked the jury "to keep an eye out for the defense throwing out distraction arguments, arguments that aren't really relevant to the ultimate issues here." Bello's attorney objected as "impugning counsel," but the court overruled the objection. The prosecutor then reminded the jurors to "use your common sense."
B. The Prosecutor Did Not Commit Misconduct
" ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.]" ' [Citation.] Even when the misconduct does not attain that level, it may be error under state law, but ' " 'only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, . . . ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " ' " (People v. Mendoza (2016) 62 Cal.4th 856, 905.)
We reject Hernandez's contention that the prosecutor improperly vouched for Inspector Lynn. "The prosecutor is generally precluded from vouching for the credibility of her witnesses, or referring to evidence outside the record to bolster their credibility or attack that of the defendant. [Citations.]" (People v. Anderson (1990) 52 Cal.3d 453, 479 (Anderson).) Here, "the prosecutor limited her remarks to facts of record, namely" Inspector Lynn's experience investigating similar cases where male and female suspects worked together to sell methamphetamine. (Id. at p. 479.) The prosecutor's " 'vouching' " was permissible as "clearly based on inferences reasonably drawn therefrom, rather than on [the prosecutor's] personal belief or knowledge. [Citation.]" (Ibid.) Hernandez's attempt to distinguish Anderson is unavailing. There was no improper prosecutorial vouching. (People v. Peoples (2016) 62 Cal.4th 718, 796-797.)
To obviate an ineffective assistance of trial counsel claim, we consider the merits of Hernandez's claim notwithstanding his failure to make a specific prosecutorial misconduct objection and request a curative admonition. (See People v. Mendoza, supra, 62 Cal.4th at p. 905 [discussing requirements to preserve a claim of prosecutorial misconduct for appeal]; People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [court addressed forfeited issue, forestalling claim of ineffective assistance of counsel].)
Nor did the prosecutor — as Hernandez claims — impugn "the integrity of defense counsel" and suggest the defense had been "fabricated to 'distract' the jury." As stated above, the prosecutor asked the jury to "question any unreasonable alternatives" regarding why defendants possessed the drugs and "to keep an eye out for the defense throwing out distraction arguments, arguments that aren't really relevant to the ultimate issues here." The prosecutor criticized the defense case as "unreasonable" and "distract[ing]" but these comments do not rise to the level of misconduct.
A "prosecutor is accorded wide latitude in attacking the defense's case[.] [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1337; People v. Pearson (2013) 56 Cal.4th 393, 442 [criticism of defense theory "did not impugn defense counsel's integrity"]; People v. Shazier (2014) 60 Cal.4th 109, 150 ["prosecutor's fleeting claim of 'deceptive' argument by defense counsel was not an attack on counsel's personal integrity"]; People v. Cook (2006) 39 Cal.4th 566, 608 [dismissing defense's theory of the case did not "improperly impugn the integrity of defense counsel"].) Moreover, the prosecutor's comments were not "likely to have been construed by the jury as an attack on defense counsel's personal integrity. The prosecution's remarks were likely interpreted as 'an admonition not to be misled by the defense interpretation of the evidence, rather than as a personal attack on defense counsel.' " (People v. Spector (2011) 194 Cal.App.4th 1335, 1406.)
This case bears no resemblance to People v. Bell (1989) 49 Cal.3d 502, where the prosecutor told the jury it was defense counsel's job to try sidetrack the jury, and to " 'throw sand in your eyes' " and " 'confuse you' " so " 'you won't be able to bring in a verdict.' " (Id. at p. 538.) Here, the prosecutor's criticism of the defense theory of the case was not misconduct. Hernandez's prosecutorial misconduct claim fails.
II.
There Is Substantial Evidence of Hernandez's Intent to Sell
Next, Hernandez contends there is insufficient evidence of his intent to sell, an element of possession of methamphetamine for sale (§ 11378) and transportation of methamphetamine (§ 11379). According to Hernandez, the "evidence proved beyond a reasonable doubt that [he] possessed the methamphetamine found in the car, but it did not prove he had an intent to sell it." We are not persuaded.
"Section 11379 provides that any person who transports a controlled substance is guilty of a felony. [Citation.] Prior to 2014, section 11379 did not require proof the substance being transported was for sale; mere transportation of a controlled substance was sufficient. Effective January 2014, the Legislature amended section 11379 to provide that, 'For purposes of this section, "transports" means to transport for sale.' " (People v. Lopez (2016) 6 Cal.App.5th 494, 497, review granted Mar. 22, 2017, S239567.) The operative information is dated December 2014.
" 'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]' [Citations.] Intent to sell may be established by circumstantial evidence. [Citation.]" (People v. Harris (2000) 83 Cal.App.4th 371, 374.) " 'In cases involving possession of . . . [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.) "In reviewing the sufficiency of the evidence to support a conviction, we determine ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' [Citations.] Under such standard, we review the facts adduced at trial in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. [Citation.] The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. [Citation.]" (People v. Misa (2006) 140 Cal.App.4th 837, 842.)
Here, there was overwhelming evidence Hernandez intended to sell the methamphetamine. Inspector Lynn testified the methamphetamine was possessed for sale based on: (1) weight and street value of the methamphetamine; (2) the way the methamphetamine was packaged; (3) the large of amount of cash found in Hernandez's wallet, in denominations consistent with drug sales; (4) the empty baggies — i.e. "extra packaging" — which could be used to further subdivide the methamphetamine; and (5) the presence of items often "traded for methamphetamine." Deputy Trindade testified Bello "possessed over a thousand uses of methamphetamine," supporting an inference the methamphetamine was not for personal use. (People v. Ramos (2016) 244 Cal.App.4th 99, 104 [substantial evidence of intent to sell methamphetamine]; People v. Parra (1999) 70 Cal.App.4th 222, 227 [police officers' testimony provided sufficient evidence of defendants' intent to sell cocaine].)
Hernandez claims the evidence is insufficient because the car did not contain scales, or pay-owe sheets, nor any "evidence of any actual sale." The jury was not persuaded by this argument; on appeal, we "cannot reweigh the evidence, as . . . the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact." (People v. Misa, supra, 140 Cal.App.4th at p. 842.) We reject Hernandez's claim that Inspector Lynn was biased based on a change in his testimony from the preliminary hearing.
III.
Hernandez May Be Convicted of Transporting and
Possessing Methamphetamine for Sale
The jury convicted Hernandez of transporting and possessing methamphetamine for sale (§§ 11379, subd. (a), 11378). The court stayed the possession for sale conviction (Pen. Code, § 654). On appeal, Hernandez argues he cannot be convicted of transporting and possessing the same substance for sale because his possession was " 'incidental to and a necessary part of the transportation charge.' " This claim fails.
As a general rule, "a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); Pen. Code, § 954 ["[a]n accusatory pleading may charge . . . different statements of the same offense . . . [and] the defendant may be convicted of any number of the offenses charged"].) An exception to this rule is a defendant cannot be convicted of a crime and any offense necessarily included in that crime. (Reed, at p. 1227.) Possession of a narcotic "is not an essential element of [transportation]" — a defendant may transport a drug without possessing it. (People v. Rogers (1971) 5 Cal.3d 129, 134 (Rogers); People v. Watterson (1991) 234 Cal.App.3d 942, 947 (Watterson).) In other words, possession is not a necessarily included offense of transportation and Hernandez was properly convicted of both transportation and possession of methamphetamine for sale. (Reed, at pp. 1228-1229; People v. Thomas (1991) 231 Cal.App.3d 299, 305-306 [rejecting defendant's attempt to expand the " 'necessarily included' definition to encompass cases in which the facts make it impossible to commit one offense without also committing another"].)
Hernandez's argument is premised on a footnote from Rogers, where our high court stated: "In cases where defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior, different or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges." (Rogers, supra, 5 Cal.3d at p. 134, fn. 3.) However, this footnote does not assist Hernandez because it does not apply to an analysis of possession as a possible necessarily included offense to transportation under the statutory elements test. Moreover, the purported rule expressed in this footnote does not "compel[ ] the conclusion that multiple convictions are precluded." (Watterson, supra, 234 Cal.App.3d at p. 945.) Finally, our high court has held "[t]he continuing validity of the rule stated in [Rogers] is dubious . . . ." (Reed, supra, 38 Cal.4th at pp. 1228-1229, fn. 2.)
We conclude Hernandez was properly convicted of both transportation and possession of methamphetamine for sale.
IV.
Hernandez's Claim Regarding the Preliminary Hearing Fails
As stated above, the magistrate excluded Bello from Hernandez's preliminary hearing, concluding she was a "potential witness to these proceedings and there is the distinct possibility of collusion going forward." At the conclusion of the hearing, the magistrate held Hernandez to answer to the charges. The trial court denied Hernandez's motion to set aside the information and this court denied Hernandez's petition for writ relief.
Bello appealed; in her opening brief, she argued her exclusion from Hernandez's preliminary hearing violated her right to a public trial. Hernandez joined Bello's opening brief but offered no independent analysis. Bello's brief was dismissed but the Attorney General addresses the claim "out of an abundance of caution" and contends Bello's exclusion from Hernandez's preliminary hearing was not a prejudicial abuse of discretion.
We conclude the court did not err by excluding Bello from the preliminary hearing. Penal Code section 867 requires the magistrate to "exclude all potential and actual witness[es] who have not been examined." (See also People v. Young (1985) 175 Cal.App.3d 537, 541 ["witness exclusion during the preliminary examination is now, on motion of either party, a matter of right"].) Here, Bello was a "potential witness" under Penal Code section 867: she was involved the traffic stop and was found in possession of methamphetamine. As a result, the court did not err in excluding her from Hernandez's preliminary hearing.
Hernandez's claim fails for the additional reason that any assumed error in excluding Bello from Hernandez's preliminary hearing was not prejudicial. When the denial of a substantial right at a preliminary hearing is followed by the defendant's conviction in an error-free trial, "irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) "This rule rests on the belief that a fair trial generally renders harmless any preliminary hearing errors. [Citation.]" (Reilly v. Superior Court (2013) 57 Cal.4th 641, 652.)
Here, Hernandez cannot establish prejudice from Bello's exclusion from Hernandez's preliminary hearing. The appellate record is devoid of evidence the "values underlying open [preliminary] hearings" were compromised by Bello's exclusion. Hernandez has not shown an abuse or arbitrary use of judicial power, that public confidence in the administration of justice was in any way affected, that an open hearing would have led to the discovery of important witnesses, or that an open hearing would have deterred the commission of perjury. (Pompa-Ortiz, supra, 27 Cal.3d at p. 530.)
V.
Hernandez Is Entitled to One Additional Day of Custody Credit
The parties agree Hernandez is entitled to one additional day of presentence custody credit. A defendant is entitled to credit for each day in custody, including the day he is arrested and the day the court imposes sentence. (People v. Garcia (2014) 223 Cal.App.4th 1173, 1180.) Hernandez was in custody from his June 12, 2014 arrest until his January 15, 2015 sentencing. He is therefore entitled to 218 days of custody credit, not 217 days.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment awarding Hernandez 218 days of presentence custody credit, and to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.