Opinion
H042372
08-14-2017
THE PEOPLE, Plaintiff and Respondent, v. MARKESE DARNELL HUNTER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS112190A)
I. INTRODUCTION
Defendant Markese Darnell Hunter appeals after a jury found him guilty of transportation for sale of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1), possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 2), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 3), and possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 4). The trial court found defendant had suffered four prior narcotics convictions (Health & Saf. Code, § 11370.2, subds. (a) & (c)) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
The trial court imposed an aggregate 19-year jail sentence, but suspended execution of five years of that term, such that defendant would serve 14 years in jail and then be under mandatory supervision for five years. (See Pen. Code, § 1170, subd. (h)(5).) One of the mandatory supervision conditions was that defendant "not use or possess alcohol, intoxicants, narcotics or other controlled substances without the prescription of a physician."
On appeal, defendant argues the trial court erred when it denied his motion to suppress evidence obtained from a warrant supported by information obtained from a Global Positioning System (GPS) tracking device. Defendant also argues there was insufficient evidence to support his conviction for cocaine possession (Health & Saf. Code, § 11350, subd. (a); count 4). Defendant further argues the trial court erred when it denied his request for an evidentiary hearing regarding jury misconduct. Finally, defendant challenges the mandatory supervision condition that he "not use or possess alcohol, intoxicants, narcotics or other controlled substances without the prescription of a physician" as unconstitutionally vague. For reasons we shall explain, we will affirm the judgment.
II. BACKGROUND
A. GPS Tracking Device
In October 2011, Seaside Police Detective Frank Salzillo began conducting surveillance on defendant, who Detective Salzillo suspected was dealing drugs. Detective Salzillo put a GPS tracking device on defendant's blue Chevy Avalanche. Detective Salzillo occasionally confirmed the accuracy of the GPS tracking device by driving past the locations where the vehicle was parked. He observed defendant's Avalanche at 300 Brittany Road in Seaside on a number of occasions, including at night.
The GPS tracking device data showed that 300 Brittany Road was where defendant was spending the night and that it was "the place he occupied." Seaside Police Commander Bruno Dias, an expert in the area of "narcotics, controlled substance[s] possessed for sales," suspected defendant was using 300 Brittany Road as a "cold pad"—a place that a drug dealer uses to keep contraband but not as the person's mailing address or for vehicle registration.
GPS tracking data, confirmed by officers' observations, showed that the Avalanche was parked at 300 Brittany Road overnight on October 31, 2011. The next morning, the GPS tracking data showed that defendant's Avalanche had driven to a check cashing business at University Plaza.
B. Evidence of Narcotics Possession
On November 1, 2011, defendant was detained after being located at the check cashing business. Inside defendant's Avalanche, which was parked outside, an officer found a baggie of cocaine base.
After the cocaine base was found in defendant's vehicle, a search warrant was executed at 300 Brittany Road. Photographs of defendant were hanging inside the residence. Inside a bedroom dresser, officers found $4,000 in cash, defendant's driver's license, and documents with defendant's name and a San Pablo Avenue address. In the same dresser, officers found a jar containing 13.4 grams of marijuana, two baggies containing 59 orange pills, a baggie containing a 25-gram piece of cocaine base, a baggie containing 16 individually wrapped rocks of cocaine base, a baggie containing several chunks of cocaine base or compressed powder cocaine, and a Mentos box containing 7.5 grams of powder cocaine. In the living room, officers discovered a digital scale inside a backpack. The search revealed no paraphernalia for using any of the controlled substances.
A search of defendant's three cell phones—found on his person, in his vehicle, and on top of the dresser at 300 Brittany Road—uncovered multiple drug-related text messages. In one, a person asked whether defendant had any "tree," meaning marijuana. In another, a person asked for "an eighth." Another message asked for pills. Other messages asked for "a yard," meaning $100 worth of cocaine base, and "a ball," meaning a larger amount.
While at the 300 Brittany Road residence, Commander Dias tested the substances in the Mentos container and the baggies using a field test kit called a Narcotics Analysis Reagent Kit (NARK) kit. All of the items that looked like cocaine or cocaine base tested positive for the presence of cocaine, and two of the orange pills tested positive for either MDMA or methamphetamine.
Commander Dias explained that a field test "presumptively" reports the presence of a particular controlled substance. Usually, the substance is then sent to a lab for further analysis. Commander Dias had done over a thousand tests with NARK kits and had never found the results to be incorrect.
Criminalist Rachel Frase tested three of the items found during the search of 300 Brittany Road. She confirmed the presence of cocaine base in the baggie containing individually wrapped rocks and in one of the two baggies containing larger chunks of suspected cocaine base. She confirmed the presence of methamphetamine in two of the orange pills.
Commander Dias believed that the cocaine base, pills, and marijuana found at 300 Brittany Road were all possessed for sale, but he did not believe the powder cocaine was possessed for sale. He explained that usually, when a person who is involved in cocaine base sales also possesses powder cocaine, the person's intent is to use the powder cocaine to manufacture cocaine base.
C. Defendant's Prior Narcotics Arrest
On December 3, 2005, Sergeant Borges contacted defendant at the San Pablo Avenue residence. Sergeant Borges smelled the odor of marijuana and saw defendant "manipulating" pebbles inside a planter box. He detained defendant based on his parole status and searched the area where defendant had been sitting. He located a small amount of marijuana and three individually wrapped rocks of cocaine base. He found no paraphernalia for using cocaine base inside the residence, and defendant did not appear to be under the influence of cocaine base.
D. Charges , Verdicts , and Sentencing
Defendant was charged by amended information with transportation for sale of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1), possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 2), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 3), and possession for sale of cocaine (Health & Saf. Code, § 11351; count 4).
The jury found defendant guilty of counts 1 through 3, and although it found him not guilty of count 4—possession for sale of cocaine—it found him guilty of possession of cocaine, a lesser-included offense. (Health & Saf. Code, § 11350, subd. (a).) The trial court found that defendant suffered four prior narcotics convictions (Health & Saf. Code, § 11370.2, subds. (a) & (c)) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
The trial court imposed a 19-year jail sentence for count 1, consisting of the upper term of five years for the substantive offense, two consecutive one-year enhancements for the prior prison terms, and four consecutive three-year enhancements for the prior narcotics convictions. The trial court imposed a concurrent term of 18 years for count 2 and a concurrent term of 17 years for count 3. For count 4, the conviction of cocaine possession, defendant was sentenced to a concurrent one-year jail term. The trial court suspended execution of five years of the jail term and ordered defendant to be placed on mandatory supervision for those five years. (See Pen. Code, § 1170, subd. (h)(5).) The mandatory supervision order included the condition that defendant "not use or possess alcohol, intoxicants, narcotics or other controlled substances without the prescription of a physician."
III. DISCUSSION
A. GPS Tracking Device
Defendant argues the trial court erred when it denied his motion to suppress evidence obtained from the search warrant, which was supported with GPS tracking device information. Defendant contends the law regarding the warrantless use of a GPS device was in flux at the time of the tracking device's attachment to his vehicle, so it was unreasonable for the officer to attach it to his vehicle without a warrant and thus the search violated the Fourth Amendment. Defendant contends that a reasonably informed officer would have been on notice that existing law regarding attachment of GPS tracking devices was subject to change and would have taken extra precautions to ensure the constitutionality of his or her actions. Defendant maintains that because the officer did not act reasonably, the good faith exception to the exclusionary rule does not apply and all evidence that was discovered after the use of the GPS tracking device, including the evidence discovered during the search of 300 Brittany Road, should have been suppressed.
1. Proceedings Below
On April 30, 2013, defendant moved to suppress the evidence obtained from the November 1, 2011 warrant. He argued that the warrantless use of the GPS tracking device violated his Fourth Amendment rights, relying on United States v. Jones (2012) 565 U.S. 400 (Jones), which held that the use of a GPS tracking device on a subject's vehicle constitutes a Fourth Amendment search requiring a warrant. (See id. at p. 404.) Defendant also argued that even with the GPS tracking data, the warrant was not supported by probable cause because there was no evidence that any illegal activity had occurred at 300 Brittany Road. Further, defendant argued that the good faith exception to the exclusionary rule did not apply, because "Detective Salzillo, acting as 'a reasonable officer', knew or should have known of the inadequacy of his affidavit."
In the People's response to the motion to suppress, the prosecution argued that there was probable cause supporting issuance of the warrant, in that "[t]wo confidential reliable informants independently provided information which corroborated each other and was further corroborated by police investigation that the defendant sold drugs . . . ." The prosecution also argued that the warrantless use of the GPS tracking device did not violate the Fourth Amendment, since the use of the tracking device had preceded the United States Supreme Court's opinion in Jones and "installing a warrantless GPS was legal conduct when it occurred."
The trial court denied the motion to suppress, finding "there was sufficient evidence for the magistrate to have issued the search warrant in this case." The trial court went on to state that, "But for some reason even if there wasn't [sufficient evidence], I do find that the good faith exception would also apply to this case."
2. Applicable Law
" ' "When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial court's factual findings, upholding them if they are supported by substantial evidence, but we then independently review the court's determination that the search did not violate the Fourth Amendment." ' [Citation.] This means that we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure [citation] but we 'decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.' [Citation.]" (People v. Hochstraser (2009) 178 Cal.App.4th 883, 894.)
Davis v. United States (2011) 564 U.S. 229 (Davis) holds that "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule," even if that precedent is later overruled. (Id. at p. 232.) The sole purpose of the exclusionary rule is to deter the State from future Fourth Amendment violations, not to redress the injury caused by an unconstitutional search. (Id. at pp. 236-237.) Thus, when an officer acts with a " 'reasonable good-faith belief' " that his or her conduct is lawful, the rationale for the exclusionary rule " ' "loses much of its force." ' " (Id. at p. 238.)
3. Analysis
Prior to Jones, the law in California was that the installation of an electronic tracking device to the undercarriage of a vehicle did not violate the Fourth Amendment's warrant requirement. (People v. Zichwic (2001) 94 Cal.App.4th 944, 953 (Zichwic); see also People v. Mackey (2015) 233 Cal.App.4th 32, 95 (Mackey); United States v. McIver (9th Cir. 1999) 186 F.3d 1119, 1126-1127.) In June of 2011, a few months before Detective Salzillo attached the GPS tracking device to defendant's Avalanche, the United States Supreme Court granted certiorari in United States v. Maynard (D.C. Cir. 2010) 615 F.3d 544 (Maynard), to determine whether use of a GPS tracking device on a subject's vehicle constitutes a Fourth Amendment search requiring a warrant. Jones, which held that a warrant is required for the use of a GPS tracking device (Jones, supra, 565 U.S. at p. 404), was decided in 2012, while defendant's case was pending in the trial court.
Maynard and Jones were coconspirators whose appeals were consolidated in Maynard, supra, 615 F.3d 544. Only Jones challenged the use of a GPS device in that case (see id. at p. 549), and the United States Supreme Court subsequently granted Jones's petition for writ of certiorari. (See Jones, supra, 565 U.S. at p. 404.)
The Mackey court affirmed the denial of a defendant's motion to suppress where a GPS tracking device was placed in 2007. (Mackey, supra, 233 Cal.App.4th at p. 96.) The court explained that at the time of the device's placement by law enforcement, "[t]he holding in Zichwic was . . . binding California precedent upon which the police could reasonably rely." (Mackey, supra, at p. 96.) Defendant nevertheless argues that Detective Salzillo could not reasonably have relied on existing California law when he placed the GPS tracking device on defendant's car in 2011, because at that time, the United States Supreme Court had granted certiorari in Maynard.
Defendant contrasts this case with People v. Rossetti (2014) 230 Cal.App.4th 1070 (Rossetti). The defendant in Rossetti was arrested and subjected to a warrantless nonconsensual blood draw, which revealed he had been driving under the influence of alcohol. (Id. at p. 1073.) At that time, California precedent did not require a warrant for a blood draw in driving under the influence cases because it was presumed that the natural dissipation of alcohol in the blood stream created an exigent circumstance. (Id. at pp. 1074-1075.) However, over a year after the defendant's arrest, the United States Supreme Court decided Missouri v. McNeely (2013) 569 U.S. 141, which held that no per se exception to the warrant requirement existed for nonconsensual blood draws, and that each challenge to a nonconsensual warrantless blood draw required its own reasonableness analysis. (See Rossetti, supra, at p. 1075.) The Rossetti court found that the police conduct in that case fell "within the parameters of the 'good faith' exception to the exclusionary rule," since the officer had "acted in accordance with existing legal precedent and with a reasonable, good faith belief that his actions were consistent with the law because 'the applicable law at the time of the arrest [was] that a warrant wasn't necessary for a blood draw.' " (Id. at pp. 1076-1077.)
Defendant points out that at the time of the warrantless blood draw in Rossetti, certiorari had not yet been granted in the case that led to the change in law, and thus that there was no question as to the validity of existing California precedent when the officer conducted the blood draw. He further points out that in this case, Detective Salzillo attached the GPS device after certiorari was granted in Maynard. Therefore, defendant argues, Detective Salzillo's reliance on existing California law was unreasonable and the good-faith exception to the exclusionary rule should not apply.
Defendant's argument is unpersuasive. He has cited no authority for the proposition that a grant of certiorari in a case from another jurisdiction, which has the potential to change the law in California, is determinative of whether the good faith exception applies. Under Davis, the relevant fact is that when Detective Salzillo attached the GPS device, binding appellate precedent permitted warrantless use of a GPS tracking device. (See Davis, supra, 564 U.S. at p. 232; Zichwic, supra, 94 Cal.App.4th at pp. 953- 956.) Even though that law was subject to change, it was not unreasonable for Detective Salzillo to act in accordance with law that was still valid.
In sum, when Detective Salzillo attached the GPS device to defendant's car, he acted with an "objectively 'reasonable good-faith belief' that [his] conduct was lawful." (Davis, supra, 564 U.S. at p. 238.) Excluding the evidence obtained from the warrant supported by the GPS device data would do nothing to deter future unlawful police conduct, and to hold otherwise would put an unreasonable burden on police officers in the execution of their duties. Therefore, the trial court did not err by denying defendant's motion to suppress.
B. Sufficiency of the Evidence of Cocaine Possession
Defendant contends that there was insufficient evidence to support his conviction of cocaine possession (Health & Saf. Code, § 11350, subd. (a); count 4) because the powdery white substance in the Mentos container found at 300 Brittany Road was "never conclusively tested for cocaine."
1. Proceedings Below
As noted above, Commander Dias testified that he tested all the suspected narcotics found at 300 Brittany Road using a NARK kit, which "presumptively" reports the presence of a particular controlled substance. All of the items that looked like cocaine or cocaine base tested positive for the presence of cocaine, and two of the orange pills tested positive for either MDMA or methamphetamine. Commander Dias had done over a thousand tests with NARK kits and had never found the results to be incorrect. Some of the substances—but not the white powdery substance—were later tested by a criminalist at a lab. The NARK kit's test results were confirmed as to each substance tested at the lab.
After the prosecution rested its case, defense counsel made a Penal Code section 1118 motion, requesting a directed verdict of not guilty based on the insufficiency of the evidence. The prosecutor noted that the "only potential issue" was with count 4, but he noted that the substance had tested positive for cocaine, that Commander Dias believed the substance to be powder cocaine, and that Commander Dias said he had "tested these things" hundreds or thousands of times. The prosecutor asserted, "A NARK test is sufficient evidence in a cocaine—in a powder case, it is."
The trial court denied the Penal Code section 1118 motion, finding "sufficient evidence as to the elements of each charge."
During argument to the jury, the prosecutor asked the jury to find defendant guilty of "the possession of the powder cocaine at the house if you believe beyond a reasonable doubt that that, in fact, was powder cocaine. And that is a bit of an issue, because the [Department of Justice] didn't test it. Commander Dias did, and he opined that he thought it was going to be processed into base and which would then be sold. Legally I think that is sufficient for possession for sales."
2. Applicable Law
The standard of review for an appellate challenge to the sufficiency of the evidence to support a conviction is well-established. "The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138 (Ceja).)
3. Analysis
Defendant concedes that he is unable to find a California case supporting his position. Instead, he points us to various cases from other states, asserting that each "found field tests . . . insufficient as conclusive evidence confirming drug presence."
The out-of-state cases defendant cites do not support his claim that the evidence in this case was insufficient. Here, the evidence consisted of not only a field test presumptively confirming the presence of cocaine but an experienced officer's opinion testimony that the white powdery substance was cocaine and evidence about the accuracy of the type of field test he had conducted. In People v. Hagberg (Ill. 2000) 733 N.E.2d 1271, the court refused to categorically hold "that a field test is insufficient to identify the substance as a narcotic" and recognized that a field test "can be sufficient in some cases," such as where it is supported by an officer's testimony about the substance in question. (Id. at p. 1273.) The other out-of-state cases similarly do not hold that a field test must always be confirmed by a lab test. (See State v. Colquitt (Wash.Ct.App. 2006) 137 P.3d 892, 898 [insufficient evidence that substance was rock cocaine where evidence consisted of a field test and an "officer's bald statement" in a police report]; People v. Brightman (Dist.Ct. 1991) 565 N.Y.S.2d 989, 991-992 [insufficient evidence to support charge of cocaine possession where there was no indication of officer's training and experience in "narcotics investigations, detection or identification" and "Drug Field Test report" had been shown to lack reliability]; Curtis v. State (Tex.Crim.App. 1977) 548 S.W.2d 57, 59 [insufficient evidence to show defendant delivered heroin where the particular field test only showed "that the substance was an opiate derivative" and even an experienced officer could not "look at a white or brown powdered substance and testify that it is heroin" rather than another substance].)
Scientific testing is not "an absolute prerequisite" to prove the narcotic identity of a substance. (U.S. v. Schrock (6th Cir.1988) 855 F.2d 327, 334.) California cases have recognized that "the nature of a [narcotic] substance, like any other fact in a criminal case, may be proved by circumstantial evidence. [Citations.] It may be proved, for example, by evidence that the substance was a part of a larger quantity which was chemically analyzed [citations], by the expert opinion of the arresting officer [citations], and by the conduct of defendant indicating consciousness of guilt." (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369 (Sonleitner); see also People v. Marinos (1968) 260 Cal.App.2d 735, 738-739.)
In Sonleitner, police conducted a raid at a residence where the defendant was located following an undercover sale of cocaine that had come from that residence. After someone in the residence yelled, "The sheriffs are coming," an officer saw the defendant carry a bottle labeled "Inositol" to the bathroom and pour its contents—"a white crystalline powder resembling cocaine"—into the toilet. (Sonleitner, supra, 183 Cal.App.3d at p. 368.) The officer had 10 years of experience as a narcotics officer and had seen cocaine thousands of times. (Ibid.) He knew that "[c]ocaine is white and crystalline" whereas Inositol, a cutting agent, "is off-white or dull white and is not crystalline," and he believed the substance was cocaine. (Ibid.) Because the defendant had "successfully flushed [the substance] down the toilet," the prosecution was "unable to subject it to chemical analysis." (Id. at p. 369.)
On appeal after his conviction of possessing cocaine, the Sonleitner defendant argued that the evidence was insufficient to show that the substance inside the Inositol bottle was cocaine. (Sonleitner, supra, 183 Cal.App.3d at pp. 366, 369.) The Court of Appeal disagreed, finding that the prosecution had "set forth several types of circumstantial evidence to prove the character of the powder," which was sufficient to support the jury's verdict. (Id. at p. 370.) The circumstantial evidence included the prior delivery of cocaine from the same residence, the defendant's conduct in flushing the substance down the toilet in response to being apprised that the police were coming, and the experienced narcotics officer's opinion that the substance was cocaine. (Id. at pp. 369-370.)
In this case, as in Sonleitner, an experienced narcotics officer viewed the substance in question and opined that it was cocaine. His opinion was supported by the results of the NARK test, and evidence at trial showed the reliability of that test. The officer testified he had used NARK test kits over a thousand times without ever finding them to be incorrect, and the criminalist confirmed the results of the NARK test with respect to the other substances she had tested. In addition, the powder cocaine in the Mentos box was found with several baggies containing cocaine base packaged for sale, and the officer testified that powder cocaine is often used to manufacture cocaine base. Defendant had previously been found with cocaine base that appeared to be possessed for sale. When " 'all these facts are considered, they 'justify the inference of guilt' [citation] drawn by the jury"—i.e., that the substance was powdered cocaine. (See Sonleitner, supra, 183 Cal.App.3d at pp. 370.) Thus, the record "disclose[s] substantial evidence" such that a "reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Ceja, supra, 4 Cal.4th at p. 1138.)
C. Jury Misconduct
Defendant contends that the trial court erred by failing to hold an evidentiary hearing to ascertain whether one of the jurors committed misconduct by failing to disclose that she knew defendant.
1. Proceedings Below
After jury deliberations began, one of the jurors was excused and a female alternate juror took his place. Deliberations began anew the next day.
After the verdicts but before sentencing, defense counsel moved for a new trial on a number of grounds, including jury misconduct by the female alternate juror. Defendant also moved to unseal juror information. (See Code Civ. Proc., §§ 206, 237.) The trial court granted the motion to unseal juror information as to the female jurors.
Defendant next moved for an evidentiary hearing regarding the jury misconduct. That motion was supported by a declaration from defendant's minister, Kenneth Murray, who had attended the trial. On the day that deliberations began, the alternate juror had approached Murray while he was standing on the front steps of the courthouse. The alternate juror had said, "Good luck" to him and told Murray that defendant knew her "boys" and that "she knows him."
Defendant's trial counsel filed a declaration explaining that a defense investigator had then contacted the alternate juror. The alternate juror acknowledged having spoken with Murray but denied having told him that she or her sons knew defendant. The alternate juror maintained that she had simply said "good luck," and she refused to sign an affidavit that included the statements that she or her sons knew defendant. Further defense investigation had revealed that the alternate juror did indeed live near the San Pablo Avenue address associated with defendant.
The trial court denied defendant's motion for a new trial and his motion for an evidentiary hearing. The trial court found that it was required to "order a hearing if there are material disputed issues of fact" but that there was not "sufficient information in which to order a hearing."
In denying the motion for new trial, the trial court noted that it could only set aside the verdict if it found a "substantial likelihood of prejudice." The court found this standard was not met, reasoning that "if biased at all," the alternate juror would be "biased toward the defendant in that it appears her sons have a decent relationship with the defendant . . . and there's no acrimony, there's no belief or indication that she has any ill will towards the defendant." The trial court also noted, "There's no indication any of this was shared with the other jurors, that she knew [defendant] or recognized him," and that if defendant and the alternate juror really did know each other, defendant himself would have been able to provide that information.
2. Applicable Law
"An accused has a constitutional right to a trial by an impartial jury. [Citations.]" (In re Hamilton (1999) 20 Cal.4th 273, 293-294; see U.S. Const., amends. VI and XIV; Cal. Const., art. I, § 16.) "A juror's receipt or discussion of evidence not submitted at trial constitutes misconduct." (People v. Dykes (2009) 46 Cal.4th 731, 809 (Dykes).)
"When a trial court is aware of possible juror misconduct, the court 'must "make whatever inquiry is reasonably necessary" ' to resolve the matter. [Citation.] It must do so, however, only when the defense comes forward with evidence that demonstrates a 'strong possibility' of prejudicial misconduct. [Citation.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1255 (Hayes).)
"[O]rdinarily a trial court does not abuse its discretion in declining to conduct an evidentiary hearing on the issue of juror misconduct when the evidence proffered in support constitutes hearsay. [Citation.]" (Dykes, supra, at p. 810; see also People v. Avila (2006) 38 Cal.4th 491, 605.)
The decision whether to conduct an evidentiary hearing to resolve factual disputes raised by a claim of juror misconduct is within the trial court's discretion (Dykes, supra, 46 Cal.4th at p. 809), and thus a trial court's denial of a defendant's post-verdict request for an evidentiary hearing is reviewed for an abuse of that discretion (id. at p. 810).
3. Analysis
Defendant challenges the trial court's denial of his request for an evidentiary hearing, contending that Murray's declaration provided evidence establishing a strong possibility of juror misconduct. However, the Attorney General argues and defendant concedes that the declarations submitted in support of his motion were all hearsay and contained hearsay. Defendant therefore makes this argument on appeal to preserve it for federal review.
The California Supreme Court has found no abuse of discretion in a trial court's failure to hold an evidentiary hearing as to juror misconduct when only hearsay evidence has been offered. In Hayes, supra, 21 Cal.4th 1211, a juror allegedly told defense counsel and an investigator that she had read news articles about the case during the trial. (Id. at p. 1253.) However, the juror refused to sign an affidavit (id. at p. 1254) and thus the only evidence of her misconduct was inadmissible hearsay (id. at p. 1257). Therefore, the trial court did not abuse its discretion by failing to hold an evidentiary hearing. (Id. at p. 1256.) Likewise, in Dykes, supra, 46 Cal.4th 731, the only evidence of jury misconduct came from unsworn reports by the defense investigator, which contained statements of several jurors. (Id. at p. 806.) The court noted that the defendant had failed to offer a "persuasive basis" for deviating from the general rule against hearsay as a basis for an evidentiary hearing and found that the defendant's motion had not alleged "such serious misconduct that the court abused its discretion by declining to order an evidentiary hearing." (Id. at pp. 811-812.)
Here, the declarations submitted by defendant constituted and contained hearsay that did not fall within any statutory exception. (See Evid. Code, § 1200, subds. (a) [" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated"] & (b) ["[e]xcept as provided by law, hearsay evidence is inadmissible"].) The declarations were therefore inadmissible to disturb the verdict. (See Evid. Code, § 1150, subd. (a) ["Upon inquiry as to validity of verdict, any otherwise admissible evidence may be received . . . ."].) No juror affidavit or other admissible evidence of jury misconduct was presented to the trial court. Moreover, as in Dykes, defendant's motion did not allege such serious misconduct as to provide a compelling reason to deviate from the rule against using hearsay as a basis for an evidentiary hearing regarding juror misconduct. The only possible juror misconduct was one juror's failure to inform the trial court of some familiarity with defendant. As the trial court found in denying defendant's motion for new trial, the juror's alleged statements to Murray suggested that if the juror or her sons did know defendant, their relationship was not "acrimon[ious]," such that if any juror bias existed it was likely in defendant's favor.
In sum, we conclude the trial court did not abuse its discretion in denying defendant's request for an evidentiary hearing on jury misconduct.
D. Mandatory Supervision Condition
Defendant contends one condition of his mandatory supervision—that he "not use or possess alcohol, intoxicants, narcotics or other controlled substances without the prescription of a physician"—is unconstitutionally vague because it omits the qualifier "knowingly" and because it fails to define the term "intoxicants." Defendant asks this court to strike or modify the condition.
Defendant did not challenge the condition of his mandatory supervision below, but because his contention involves a pure question of law, he did not thereby forfeit this constitutional challenge on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.); People v. Leon (2010) 181 Cal.App.4th 943, 949.)
1. Proceedings Below
When the trial court sentenced defendant, its oral pronouncement of the challenged mandatory supervision condition provided: "Do not use or possess alcohol, intoxicants, narcotics or other controlled substances without the prescription of a physician."
The minute order taken from the sentencing hearing states the challenged probation condition as: "Do not knowingly use or possess alcohol, intoxicants, or other controlled substances with the prescription of a physician." (Italics added.) However, "[w]hen there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls." (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) --------
2. Applicable Law
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,' if it is to withstand a [constitutional] challenge on the ground of vagueness. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. [Citations.]' [Citation.]" (Ibid.) When deciding whether a particular legal restriction provides adequate notice, "we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' [Citation.]" (Ibid.)
3. Analysis
The California Supreme Court recently held that the qualifier "knowingly" need not be "expressly articulated" in a probation condition in order to provide a defendant with "fair warning" of what the condition requires. (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) In Hall, one of the challenged probation conditions stated that the defendant " 'shall not use or possess or have in [his] custody or control any illegal drugs, narcotics, [or] narcotics paraphernalia without a prescription.' " (Id. at p. 498.) The other challenged probation condition precluded the defendant from possessing certain weapons. (Ibid.) The defendant argued that the word "knowingly" should be included in the conditions, to ensure he would not be found in violation of the conditions if his possession of the prohibited items was unwitting. (Id. at p. 500.) In rejecting this claim, the Hall court explained, "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature. [Citation.] The requisite scienter for these probation conditions is thus easily ascertainable by reference to ' "other definable sources" ' that make sufficiently clear the conditions' scope. [Citation.]" (Id. at p. 501.)
In light of Hall, the probation condition that defendant "not use or possess alcohol, intoxicants, narcotics or other controlled substances without the prescription of a physician" is not unconstitutionally vague due to its failure to expressly include the qualifier "knowingly" nor because it uses the term "intoxicants." In People v. Rodriguez (2013) 222 Cal.App.4th 578, this court acknowledged that "the generic [term] 'intoxicants' . . . is susceptible of different interpretations, which may include common items such as adhesives, bath salts, mouthwash, and over-the-counter medicines" and held that "the addition of an express knowledge requirement will eliminate any potential for vagueness or overbreadth in applying the condition." (Id. at p. 594, fn. omitted.) However, in Hall, the Supreme Court disapproved of Rodriguez insofar as it "found that possessory probation conditions must include an express knowledge requirement where the prohibited item was not criminalized by statute but was merely related to criminality." (Hall, supra, 2 Cal.5th at p. 504, fn. 2.) Hall clarifies that a defendant cannot be found in violation of a probation condition prohibiting the possession of particular items—including an item that is not "criminal in itself"—without knowledge of the item's presence "and its restricted nature," even if the condition does not expressly include the qualifier "knowingly." (Id. at p. 499.) Under Hall, if defendant possessed something that he did not know to be an intoxicant, he could not be found in violation of his probation, despite the absence of an express knowledge requirement in the condition. Thus, the challenged condition of mandatory supervision in this case need not be stricken or modified.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.