Opinion
D067883
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. MARIA LAMAS, Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD258630) APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of her motion to suppress evidence of 7.8 kilograms, or 16.8 pounds, of methamphetamine, a jury convicted defendant Maria Lamas of transporting for sale a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 1); possessing for sale a controlled substance (id., § 11378; count 2); and using a false compartment to store, conceal, smuggle and transport a controlled substance (id., § 11366.8, subd. (a); count 3). As to count 1, the jury found true the allegation that the controlled substance was not for personal use (Pen. Code, § 1210, subd. (a)), and, as to counts 1 and 2, the jury found true the allegation that the controlled substance exceeded four kilograms by weight (Health & Saf. Code, § 11366.8, subd. (a).)
Unless otherwise noted, all further statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in denying her motion to suppress because the officer who stopped her vehicle allegedly lacked reasonable suspicion of criminal activity when he made the stop. Defendant also contends that the court prejudicially erred in connection with the admission of expert testimony by the prosecution and that defense counsel was ineffective for failing to object to such testimonial evidence. Finally, defendant contends that the court erred in admitting evidence of her prior border crossings from Mexico into the United States in the months leading up to the offense. Affirmed.
I
MOTION TO SUPPRESS
A. Facts
At the November 2014 suppression hearing, Riverside County Deputy Sheriff Ned Hyduke testified he, along with his trained police canine, were traveling in a marked patrol car northbound on Interstate 5 just south of San Clemente as part of a multi-agency "task force" to interdict drugs. About 10:10 a.m. on September 16, 2014, Deputy Hyduke saw a black 2004 GMC Envoy, which up to then had been traveling in a "relatively straight direction" in its lane, suddenly swerve to the far side of the lane as he approached from behind.
In response, Deputy Hyduke followed the Envoy and ran a records check of the vehicle's license plate, 7GZX604, on his patrol car's mobile data computer (MDC). The search came back, "no record on file." Because it was "not usual" for a records check to show no license on file and because there was no other way for him to then verify vehicle registration, Deputy Hyduke activated his patrol car's overhead lights and initiated a stop of the Envoy. The traffic stop was captured on Deputy Hyduke's body camera and the video was played for the jury.
Initially, the driver of the Envoy, later identified as defendant, slowed "way down within the lanes" "below the normal flow of traffic," which suggested to Deputy Hyduke the driver "hesitated" about whether to stop. In any event, when the Envoy finally stopped, it was in a commercial vehicle pass-through lane Deputy Hyduke described as an active traffic lane. As a result, Deputy Hyduke pulled behind the vehicle, exited his patrol car and asked the driver to pull over to the shoulder of the road. As he approached the driver, the window was down and he saw the driver "take a deep breath."
Once stopped, Deputy Hyduke saw an infant car seat in the back seat of the vehicle with a "blanket over the top of it." When Deputy Hyduke asked if there was a child in the car seat, the driver did not reply yes or no, but instead merely pointed at the car seat saying "it's my cousin." During this brief exchange, Deputy Hyduke began to speak Spanish to the driver, as he discerned there was some "hesitancy" concerning how she was "explaining things to [him]."
In response to his request, the driver handed Deputy Hyduke her Mexican driver's license and the vehicle registration. For his safety, Deputy Hyduke asked the driver to step out of the vehicle and accompany him to the patrol car, where he could use his MDC to run this information. As before, when Deputy Hyduke ran a records check of the Envoy a "few" additional times, including running the vehicle's VIN number, the records check came back "no record on file." As he ran the records check he asked the driver if there was a child in the vehicle, as he was concerned the child was left alone. At this point, the driver said "no, there was not."
Because he could not get any information about the Envoy on his MDC, Deputy Hyduke compared the VIN numbers on the Envoy with the numbers on the vehicle registration and confirmed they matched. As such, Deputy Hyduke then concluded the Envoy's license plate showed no record in his MDC database because that database and the database from the Department of Motor Vehicle (DMV) had not "caught up" with each other.
Deputy Hyduke could not recall how much time had elapsed up to this point in the stop, but testified typically his traffic stops took "anywhere from four to eight, nine minutes." Deputy Hyduke found that the driver had no outstanding warrants. He returned the paperwork and driver's license to the driver, and she began walking back to her vehicle.
As the driver was approaching her vehicle, Deputy Hyduke asked the driver if there was "anything illegal" in the Envoy. The driver in response said "no" and "asked [Deputy Hyduke] if [he] wanted to check it." Deputy Hyduke then began to ask the driver about whether there was "different contraband" in the vehicle, including methamphetamine or heroin. In each instance the driver said "no." However, when Deputy Hyduke asked if there was cocaine inside the vehicle, this time the driver did not say "no," but rather "looked back at the vehicle, shrugged her shoulders and shook her head no."
After asking these specific questions, Deputy Hyduke asked the driver for "permission to search the car." As shown by the video, the driver in response said "yes." Deputy Hyduke next asked if he could use his canine in the search. Again the driver said "yes" or "clearly yes."
Deputy Hyduke initially took his canine around the exterior of the vehicle. He next opened the back hatch of the Envoy and his canine "immediately jumped into the back, and . . . began showing interest to the floor area of that compartment." When Deputy Hyduke pulled the canine out of the vehicle, the canine immediately jumped back inside and showed the same behavior, which, based on their combined training, Deputy Hyduke recognized as an alert to the possible presence of narcotics.
Deputy Hyduke, now joined by his sergeant, searched the interior of the vehicle. About 10 minutes into the search, Orange County Sheriff's Deputy Gino Rodriguez arrived on scene. While looking underneath the Envoy, Deputy Rodriguez noticed "tooling on the screws and the bolts that hold the plastic shroud that covers the bumper on the rear of the vehicle." Deputy Hyduke described "tooling" as scrapes on the screws and bolts, which suggested they had been previously removed.
As suggested by Deputy Rodriguez, Deputy Hyduke removed the screws, pulled the plastic shroud off the bumper and saw "black adhesive" on the metal bumper and a "metal plate on top of the bumper that didn't appear [to be from the] factory." After prying open the metal plate, Deputy Hyduke found two "large vacuum-sealed bundles submerged in oil" inside the bumper." Subsequent testing confirmed the bundles contained methamphetamine. Deputy Hyduke estimated the search of the vehicle took "at least 15 minutes."
After hearing the argument of counsel and considering the papers and the testimony of Deputy Hyduke, the court denied defendant's motion to suppress. In so doing and as relevant to this appeal, the court noted that defendant was not "indiscriminately pulled over," but rather was stopped because Deputy Hyduke's MDC was unable to pull up any records from the DMV using "CLETS" (i.e. California Law Enforcement Telecommunication System) to verify registration of the Envoy. The court found Deputy Hyduke credible and noted he provided consistent and believable testimony concerning the sequence of events beginning with the stop and concluding with the discovery of the methamphetamine hidden in the bumper of the vehicle.
B. Guiding Principles
"In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated. 'We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.' " (People v. Hernandez (2008) 45 Cal.4th 295, 298-299 (Hernandez).)
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1.) "An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation." (Delaware v. Prouse (1979) 440 U.S. 648, 662 (Delaware).) "The touchstone of the Fourth Amendment is reasonableness. (United States v. Knights (2001) 534 U.S. 112, 118.) Whether an officer's conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances." (In re Raymond C. (2008) 45 Cal.4th 303, 307 (Raymond C.).)
" 'A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' [Citation.] Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed." (Raymond C., supra, 45 Cal.4th at p. 307.) "The motivations of the officer are irrelevant to the reasonableness of a traffic stop under the Fourth Amendment. (Whren v. United States (1996) 517 U.S. 806, 813.) 'All that is required is that, on an objective basis, the stop "not be unreasonable under the circumstances." ' (United States v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 1130.)" (People v. Suff (2014) 58 Cal.4th 1013, 1054 [concluding the stop of a defendant's car was not objectively unreasonable when the defendant driver violated the vehicle code by failing to signal before turning and further concluding the officer was authorized to detain the defendant and demand his driver's license and vehicle registration].)
When there is articulable and reasonable suspicion that "a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law," the vehicle may be stopped and the driver detained in order to check his or her driver's license and the vehicle's registration. (See Delaware, supra, 440 U.S. at p. 663, italics added; see also Veh. Code, former § 4000, subd. (a)(1) [providing in part: "A person shall not drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle . . . unless it is registered and the appropriate fees have been paid under this code . . . ."].)
Vehicle Code section 4000 was amended effective September 17, 2014, one day after defendant was arrested in this case. (See Stats. 2014, ch. 390 (A.B. 2503), § 10, eff. Sept. 17, 2014.) The amendment to this statute has no material bearing on the outcome of this case.
As noted, defendant moved to suppress the 7.8 kilograms of methamphetamine found as a result of the traffic stop on the grounds that the stop, as opposed to the detention or search of her vehicle (which were caught on video), was unlawful.
The issue of vehicle stops based on a vehicle's registration, or lack thereof, was discussed at length in People v. Greenwood (2010) 189 Cal.App.4th 742 (Greenwood), which informs our decision in the instant case. There, officers on patrol ran a computer check on a vehicle driven by the defendant that indicated the vehicle's registration had expired two years earlier. Although the vehicle displayed a temporary operating permit with the number " '5' (indicating it was for the month of May)" on the rear window, one of the officers believed, albeit incorrectly, that the issuance of this type of DMV sticker allowed a vehicle owner to drive the vehicle only for the purpose of completing a smog certificate. (Id. at p. 745.) Because it was about 11:00 p.m. when the officers ran the computer check, they stopped the vehicle, "during which a cigarette dipped in phencyclidine was discovered and defendant was arrested." (Ibid.)
The Greenwood court concluded the trial court correctly ruled the officers had a right to stop the vehicle, despite the existence of the temporary permit sticker, because the information from the DMV indicated the vehicle's registration had lapsed in 2007. In reaching this conclusion, the court reviewed various authorities concerning the propriety of traffic stops under similar situations, including Hernandez, on which defendant herein also relies:
"In Hernandez, an officer saw the defendant driving a vehicle with no license plates but with a valid temporary permit in the rear window. In the officer's experience, temporary permits were often forged or switched for use from a different vehicle, so he made a traffic stop. The Supreme Court rejected the argument that the officer's subjective distrust of temporary permits justified the vehicle stop, noting that '[c]ourts from other jurisdictions also seem uniformly to have concluded that permitting officers to stop any car with temporary permits would be to countenance the exercise of the unbridled discretion condemned in Delaware[, supra,] 440 U.S. [at p.] 663. [Citations.]' (Hernandez, supra, [45 Cal.4th] at p. 301; see People v. Nabong (2004) 115 Cal.App.4th Supp. 1, 3-5 [stop of vehicle with expired license tags but displaying a valid permit, without any additional facts other than officer's distrust of the permit, violated the 4th Amend.].) The court distinguished [People v.] Saunders [(2006) 38 Cal.4th 1129 (Saunders)] on the basis the missing front license plate in Saunders justified the vehicle stop, and there was no similar violation in this case. (Hernandez, supra, at p. 300.)
"The Supreme Court next addressed the issue in . . . Raymond C.[, supra,] 45 Cal.4th 303, a companion case to Hernandez. An officer saw a car without license plates; it had no temporary operating permit in the rear window. After making a vehicle stop, the officer discovered a temporary permit on the front window. (In re Raymond C., supra, at p. 305.) The stop was held to be lawful, because there was no permit in the officer's view from the rear and the officer was not constitutionally required to drive in front of the defendant to look for a permit on the front window before making the stop. (Id. at pp. 307-308.)
"Finally, in People v. Dotson (2009) 179 Cal.App.4th 1045, 1050-1051 (Dotson), an officer who saw no front or rear license plate on a vehicle and did not look for a temporary permit made a vehicle stop. The Attorney General attempted to concede the stop violated the Fourth Amendment in the absence of evidence the officer attempted to determine if the vehicle had a temporary permit. The Dotson court rejected the concession as inconsistent with Fourth Amendment jurisprudence. (Dotson, at p. 1051.) In the view of the Dotson court, the stop was reasonable—the defendant's vehicle had no license plates, the officer saw no permit, and there was no evidence at the hearing on the motion to suppress that the temporary permit existed. Hernandez . . . was distinguished because in Hernandez, the officer did see a temporary permit. (Dotson, supra, at p. 1052.) Review was denied in Dotson." (Greenwood, supra, 189 Cal.App.4th at pp. 747-748.)
As a result of these and other authorities, the Greenwood court "distill[ed] the following rules . . . . In the absence of other incriminating or ambiguous evidence, a vehicle displaying a valid temporary permit and no license plates may not be stopped for the purpose of investigating the permit's validity. (Hernandez, supra, 45 Cal.[4th] at pp. 299-300; People v. Nabong, supra, 115 Cal.App.4th at pp. Supp. 3-5.) If the officer does not see the temporary permit and the vehicle has no license plates, it is reasonable for the officer to make a traffic stop. (Dotson, supra, 179 Cal.App.4th at pp. 1051-1052.) A vehicle with expired license tabs, but displaying a temporary permit, may not be stopped if the officer has additional information that there is an ongoing process to cure the lapse in registration. ([People v.] Brendlin [(2006)] 38 Cal.4th [1107,] 1114 [noting that although the officer observed the registration tags on the defendant's car had expired, the officer "also observed a current temporary operating permit in the car's rear window and had received radio conformation that an application for renewal of the vehicle's registration was indeed in progress," and, as such, the attorney general conceded the officer had no "articulable suspicion the [car's] registration was invalid"].) A vehicle displaying a valid temporary permit may be stopped where there is some objective indicia that something may be amiss with the registration or permit, such as a missing front license plate. (Saunders, supra, 38 Cal.4th at p. 1137.) Finally, a vehicle displaying no license plates and no temporary permit visible from the rear may be stopped for investigation. (In re Raymond C., supra, 45 Cal.4th at pp. 307-308.)" (Greenwood, supra, 189 Cal.App.4th at p. 748.)
The Greenwood court concluded that the "determinative fact [was] that [the officers] objectively believed, based upon the DMV records, the registration on defendant's vehicle had lapsed two years earlier. This objective fact removes the stop from being dependent on [the officer's] seemingly incorrect subjective belief that defendant's temporary permit only allowed him to drive the vehicle to obtain a smog check in order to gain current registration. [Citation.]
"The only case in this series of decisions involving a computer search of registration records was Brendlin, but there, the check of records confirmed the vehicle owner was in the process of completing the registration process, demonstrating the temporary permit was valid and there was no basis for a vehicle stop for further investigation. (Brendlin, supra, 38 Cal.4th at pp. 1111, 1114.) Here, there is no evidence that the computer check indicated defendant's temporary permit was part of the registration process. Presented with ambiguous evidence of a possible inconsistency between a registration that expired two years earlier and the temporary permit on display, a stop to investigate the status of the registration was consistent with the holding in Saunders.
"To be clear, we do not decide this case based on [the officer's] subjective belief the temporary permit only allowed the vehicle on the road for the limited purpose of obtaining a smog check—a belief that apparently has no basis in law. The reasonableness of a search under the Fourth Amendment is determined objectively, and an officer's subjective motivation is irrelevant to the constitutional issue. (Brigham City v. Stuart (2006) 547 U.S. 398, 404, citing Scott v. United States (1978) 436 U.S. 128, 138; Bond v. United States (2000) 529 U.S. 334, 338, fn. 2.) [The officer's] subjective belief is little different from that of the officer in Hernandez that temporary permits are often forged or switched between vehicles—a hunch that provided an insufficient ground for a vehicle stop. But unlike the stop in Hernandez, the stop in this case was objectively reasonable based on the information received from the DMV.
"It bears emphasis that it was not established until the middle of the hearing on the motion to suppress evidence—some six months after the vehicle stop in this case—that defendant's temporary permit was valid. The validity of the permit did not render the stop unreasonable. An innocent explanation for a possible registration violation 'does not preclude an officer from effecting a stop to investigate the ambiguity.' (Saunders, supra, 38 Cal.4th at pp. 1136-1137, citing Illinois v. Wardlow (2000) 528 U.S. 119, 125-126 and People v. Leyba (1981) 29 Cal.3d 591, 599.) The question is not whether defendant's vehicle was in compliance with the law, but whether [the officers] had an articulable suspicion it was not. (Saunders, supra, at p. 1136.) The DMV record showing expired registration provided the required articulable suspicion there was something amiss with the registration and justified the vehicle stop for Fourth Amendment purposes." (Greenwood, supra, 189 Cal.App.4th at pp. 748-750, fn. omitted.)
C. Analysis
Applying these principles here, we independently conclude the trial court properly denied defendant's motion to suppress. The objective facts show that when Deputy Hyduke ran a records check of the Envoy's license plate through CLETS using his MDC, it came back with "no record found"; that in Deputy Hyduke's experience, it was "not usual" for no record of registration to be found; that there was no evidence proffered by defendant suggesting otherwise; that as a result, there was more than sufficient "objective indicia that something may be amiss with the registration" (see Greenwood, supra, 189 Cal.App.4th at p. 748); and that because Deputy Hyduke was then unable to verify through his computer whether or not the vehicle was registered, the only way for him to confirm registration and, thus, compliance with the law (see Veh. Code, former § 4000, subd. (a)(1)), was to stop the Envoy and personally check the registration. We independently conclude these facts provided articulable suspicion warranting the stop. (See Delaware, supra, 440 U.S. at p. 663; see also Saunders, supra, 38 Cal.4th at p. 1137; Greenwood, at pp. 748-749.)
That Deputy Hyduke ultimately determined the vehicle was properly registered is not determinative. (See Illinois v. Rodriguez (1990) 497 U.S. 177, 184 [noting " 'reasonableness,' with respect to this necessary element, does not demand that the government be factually correct in its assessment"].) Nor is it determinative that there ultimately appears to have been an "innocent explanation" why the Envoy's registration information failed to come up on Deputy Hyduke's MDC when he ran the records check (i.e., the DMV database had not yet "caught up" with the CLETS database used by law enforcement). (See Saunders, supra, 38 Cal.4th at pp. 1136-1137) [noting the "possibility of an innocent explanation" for a possible registration violation—a missing front license plate—"does not preclude an officer from effecting a stop to investigate the ambiguity"].)
Rather, the question, which we have answered in the affirmative, is whether the objective facts showed Deputy Hyduke had "articulable suspicion" that the vehicle may not have been validly registered—in violation of the Vehicle Code—before he made the stop. (See Greenwood, supra, 189 Cal.App.4th at pp 749-750.) As such, we independently conclude the stop of the vehicle by Deputy Hyduke was lawful. (See Saunders, supra, 38 Cal.4th at pp. 1134-1135.)
II
EVIDENTIARY ISSUES
Defendant contends the court committed prejudicial error when it allowed three prosecution expert witnesses to testify on various subject matters that allegedly were improper. Because the defense failed to object to nearly all such evidence, defendant further contends to the extent these evidentiary issues were forfeited, she was denied effective assistance of counsel. Before reaching those issues, we first consider, in context, the evidence (allegedly) objected to that defendant contends also should have been excluded.
A. Evidence Admitted (Allegedly) Over Objection
1. Brief Additional Background
At trial, Deputy Rodriguez testified that for the last seven years, he has been assigned to work on the highway interdiction team, where his duties included intercepting drug and money shipments, weapons and ammunition; that he has trained newly-assigned officers how to locate hidden compartments in vehicles used to smuggle drugs, which he noted can sometimes be "very difficult" to find; that he has searched "thousands of cars"; that he has been recognized by various agencies as one of the top interdiction officers in the country; and that he has conducted at least 200 separate investigations that have led to the interception of almost three tons of the "harder stuff," which he described as cocaine, methamphetamine and heroin, as opposed to marijuana.
Deputy Rodriguez was on duty when Deputy Hyduke stopped defendant. Because he is an expert in drug interdiction and was also working the Interstate 5 corridor as part of the multi-agency task force that morning, as noted Deputy Rodriguez assisted Deputy Hyduke in the search of defendant's vehicle. In fact, it was Deputy Rodriguez's tip about the "tooling" on the screws and bolts holding the plastic shroud covering the vehicle's bumper that led to the discovery of the drugs in this case.
As relevant here, at trial the prosecution asked Deputy Rodriguez whether, based on his training and experience, the methamphetamine was "possessed for personal use versus a commercial purpose for sale?" Without objection, Deputy Rodriguez responded, "Yes, just due to the amount itself." He then testified, again without objection, as follows:
"This case, in my opinion, is a drug trafficking case just due to the amount. It could actually be a couple kilos, way less than what she had. But in this particular case, yes, in my opinion, this was a drug trafficking case. I've seen it multiple times."
Also without objection, Deputy Rodriguez testified that the drugs found in defendant's vehicle were a "good amount" and added, "[i]t's not personal use, I guarantee that." When asked to explain his opinion, Deputy Rodriguez testified:
"That's not a small amount. And it's hundreds of thousands of dollars that's eventually going to get turned into probably over a million dollars, if not more, once it gets distributed and recut, and recut again, and recut again and sent out into the street by drug dealers."
Later in his testimony, the following colloquy took place:
"Q [By the prosecutor] Now, after having an opportunity to review all the evidence in this case, were you able to, with that evidence as your backdrop and based on your training, education and experience doing this every[]day, were you able to form an opinion about whether or not 7.5 pounds [sic] in this case was possessed for purposes of sale?
"A [By Deputy Rodriguez] Seven -- yeah, seven kilos? Yes, definitely possessed for sales.
"Q Okay. And would that also apply to the time she was driving it up the 5 North, was it also possessed to be sold at that
"A Transported to be sold, yes."
Toward the end of his testimony, Officer Rodriguez was asked about the traffic stop video shown to the jury. After watching the video, Officer Rodriguez noted that defendant on the video said she was on "vacation," but there was no luggage in the Envoy; that she had a car seat in the vehicle that was covered by a blanket, but no baby; that, when asked by Deputy Hyduke a third time whether she had contraband in the vehicle, defendant's equivocal response suggested she was moving drugs; that she did know the address where her uncle lived in Chula Vista, although she claimed he owned the vehicle and she frequently crossed the border; and that she identified her uncle as Juan, when in fact the first name listed on the vehicle registration was Jose.
Based on the traffic stop video and other evidence, including phone calls made and received by defendant before and when she was stopped, the prosecutor asked Officer Rodriguez whether he was able to "assess [defendant's] knowledge of what she was up to that day?" In response, Deputy Rodriguez without objection testified:
"Well, based on just the phone calls, the early morning travel, picking up the vehicle at a certain location, not knowing where her uncle -- her uncle's name, where he lived, traveling along pretty -- a fairly long distance to Los Angeles to buy clothing, unless there's some kind of special clothing or something, I'm not sure, but why are you going to drive that far and purchase something in Los Angeles when you can purchase, most likely, that same thing in Chula Vista or wherever? Why would someone do that? It doesn't make any sense. [¶] So the totality of the circumstances with everything put together, in my opinion, this is a drug trafficking case. It's not a mule case."
The prosecutor next asked:
"Q And she knowingly possessed for the purposes of sales[?]
"A Correct.
"Q Is that your opinion?
"A Yes.
"[Defense Attorney]: Objection. Also legal conclusion.
"The Court. Overruled. [¶] Answer may stand."
Defendant contends Deputy Rodriguez exceeded the scope of permissible testimony by opining on defendant's subjective knowledge of the presence of the methamphetamine in connection with its transportation (count 1) and possession (count 2) for the purposes of sales.
The jury was instructed that "selling" for purposes of counts 1 and 2 meant exchanging a controlled substance for "money, services, or anything of value."
2. Governing principles
Expert testimony is admissible if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) In addition, "[d]espite the circumstance that it is the jury's duty to determine whether the prosecution has carried its burden of proof beyond a reasonable doubt, opinion testimony may encompass 'ultimate issues' within a case. Evidence Code section 805 provides that '[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.' " (People v. Prince (2007) 40 Cal.4th 1179, 1227 (Prince).)
While an expert may offer testimony on an ultimate issue in a case (Evid. Code, § 805), a "witness may not express an opinion on a defendant's guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
It is well-established that "an expert may testify concerning criminal modus operandi and may offer the opinion that evidence seized by the authorities is of a sort typically used in committing the type of crime charged." (Prince, supra, 40 Cal.4th at p. 1223.) "In cases involving possession of [illegal drugs, such as] marijuana or heroin, 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." (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862; accord, People v. Harris (2000) 83 Cal.App.4th 371, 374-375 (Harris).) "Thereafter, it is for the jury to credit such opinion or reject it." (Harris, at p. 375.)
3. Analysis
Here, we note the central issue in this case is whether defendant was a "paid" or "blind" mule. Indeed, defendant herself made this very point both pretrial and during trial.
For example, in a motion in limine she argued that the court should admit the testimony of her expert, Dr. Victor Clark-Alfaro, because he had "substantial experience testifying in court cases relating to 'blind mules.' A 'blind mule' is a person who has unwittingly transported narcotics for a drug distribution organization. In the instant case, [defendant]'s defense centers upon the fact that she did not know that the vehicle she was driving contained narcotics; in essence, that she is a 'blind mule.' It is anticipated that the prosecution will argue that [defendant] must have been aware of the presence of the narcotics in the vehicle she was driving. . . . Dr. Clark-Alfaro has special knowledge, training, education and experience which qualifies him to testify as to the practices of drug cartels and the extent to which drug cartels seek out individuals to unknowingly transport narcotics. The common practices of Mexican drug cartels are clearly not something an average juror could be expected to understand without the assistance of an expert. It is necessary and proper for the defense to call Dr. Clark-Alfaro as an expert witness in this case."
Assuming, without deciding, that defendant's one objection—to what was the last of a series of related questions in which Deputy Rodriguez opined that defendant was not a "blind mule"—preserved the issue on appeal, we discern no abuse of discretion when the court overruled the objection and admitted such testimony.
Deputy Rodriguez's testimony assisted the trier of fact just as expert testimony is intended to do. Because lay persons are not familiar with the "common practices" of drug cartels, as defendant herself noted, Deputy Rodriguez's testimony aided the jurors in deciding the central issue in this case, namely whether defendant was a "blind mule," as she aggressively argued, or was a "paid mule," as the prosecution contended.
We thus conclude that the expert testimony of Deputy Rodriguez explaining the structure and mechanics of drug cartels, including how drugs are transported, and his testimony that defendant accordingly was a "paid" mule—which opinion was based on the quantity of drugs found, its packaging, the fact the drugs were found in a hidden compartment, the circumstances under which the defendant picked up the vehicle, and her conduct/behavior during the stop, among many other evidentiary facts—were properly admitted. (See Harris, supra, 83 Cal.App.4th at p. 375 [noting it was proper for a police officer to opine that the defendant possessed marijuana and methamphetamine for sale when the defendant was found with about six grams of methamphetamine and about 28 grams of marijuana while a patient at a state hospital, when the defendant also had about 800 postage stamps in his living quarters and when the evidence showed that the defendant had no philatelic interest (i.e., collected stamps for a hobby), but rather, that patients in the hospital often bought contraband using postage stamps]; see also People v. Romo (2016) 248 Cal.App.4th 682, 697 (Romo) [citing Evid. Code, § 805 in concluding it was not improper for an expert witness to testify the defendant was not a "blind mule," when law enforcement found about three pounds of heroin and more than 18 pounds of methamphetamine in a false compartment in the defendant's car after he crossed from Mexico into the United States and when the defendant's own expert testified the defendant allegedly was a "blind mule" and, thus, was unwittingly transporting the drugs].)
Defendant nonetheless contends Deputy Rodriguez's testimony she was a "paid mule" was improper. Relying primarily on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), disapproved in part as stated in People v. Vang (2011) 52 Cal.4th 1038, 1047-1049, defendant contends Deputy Rodriguez's testimony exceeded the scope of permissible testimony by addressing defendant's subjective intent in possessing the drugs. We disagree.
Defendant's reliance on Killebrew—to the extent it is still "good law"—is misplaced. The expert in Killebrew testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Killebrew, supra, 103 Cal.App.4th at p. 652.) Killebrew correctly concluded such testimony did nothing more than inform the jury how the expert believed the case should be decided. (See id. at p. 658.)
In contrast to the expert in Killebrew, Deputy Rodriguez was present during and, thus, also testified as a percipient witness in connection with, the search and seizure of the methamphetamine found in defendant's vehicle. In further contrast to the expert in Killebrew, Deputy Rodriguez's expert testimony had a substantial underlying evidentiary basis.
Indeed, the record shows Deputy Rodriguez's testimony that defendant was a "paid," and not a "blind," mule, was based not on " ' "suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work" ' " (see People v. Raley (1992) 2 Cal.4th 870, 891), but rather on substantial circumstantial evidence, summarized ante, which tended to show defendant knowingly transported and/or possessed the methamphetamine for purposes of sales. As such, we reject defendant's contention the court erred when it overruled the defense's one objection to Deputy Rodriguez's testimony on this subject matter.
B. Evidence Admitted Without Objection
As noted, defendant also contends the court erred in admitting the expert testimony of Deputy Hyduke and of Kenneth Krause, a special agent with the Department of Homeland Security, and additional testimony of Deputy Rodriguez. Recognizing this testimony was not objected to, defendant also contends it would have been futile for the defense to object in light of the court's ruling in connection with the one objection it did make, discussed ante. As such, defendant contends her objection to all such testimony is preserved on appeal.
1. Forfeiture
It is widely recognized that the "failure to object to the admission of expert testimony . . . at trial forfeits an appellate claim that such evidence was improperly admitted. (Evid. Code, § 353, subd. (a); People v. Eubanks (2011) 53 Cal.4th 110, 142 [failure to object to hearsay in expert's testimony forfeits claim on appeal].)" (People v. Stevens (2015) 62 Cal.4th 325, 333; see People v. Fuiava (2012) 53 Cal.4th 622, 655 [noting a defendant "ordinarily cannot obtain appellate relief based upon grounds that the trial court might have addressed had the defendant availed himself or herself of the opportunity to bring them to that court's attention"].)
2. Analysis
Here, we conclude defendant forfeited her challenge to the expert testimony of Deputy Hyduke and Agent Krause (discussed post), and to the additional expert testimony of Deputy Rodriguez (also discussed post), based on her failure to object to any such testimony at trial.
We disagree with defendant's contention that, based on the one objection made by the defense to Deputy Rodriguez's expert testimony, any further objections by the defense to any related or other expert testimony would have been futile. (See People v. Wilson (2008) 44 Cal.4th 758, 793 [noting a "litigant need not object . . . if doing so would be futile"].)
Indeed, as the People correctly point out, this one objection came not only at the very end of Deputy Rodriguez's testimony, after he had repeatedly testified (as demonstrated ante) that defendant was a "paid mule," but also after Deputy Hyduke and Agent Krause had completed their testimony on various subject matters now challenged by defendant on appeal. We thus reject defendant's contention any additional objection(s) to the challenged evidence would have been futile.
C. Ineffective Assistance of Counsel
Perhaps anticipating this conclusion, defendant also contends her defense was ineffective for failing to object to the three experts' testimony.
1. Guiding Principles
It is well recognized that to prevail on an ineffective assistance of counsel claim, a defendant must prove two elements: (1) trial counsel's deficient performance; and (2) prejudice as a result of that performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) Deficient performance is established if the record demonstrates counsel's representation " ' " ' "fell below an objective standard of reasonableness . . . under prevailing professional norms." ' " ' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1051 (Nguyen).)
Further, even where it appears counsel's performance was deficient, the judgment must "be upheld unless the defendant demonstrates prejudice, i.e., that, ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' " (People v. Anderson (2001) 25 Cal.4th 543, 569.)
We briefly review the experts' testimony challenged for the first time by defendant, then turn to the merits seriatim.
2. Expert Testimony/Analysis
(a) Deputy Hyduke
At trial—in contrast to at the suppression hearing—Deputy Hyduke testified that when he stopped defendant, he asked her who owned the vehicle, and, in response, she said her uncle, Juan Rosario; that the vehicle registration from the Envoy listed Jose Minero Rosario as its owner; and that Deputy Hyduke then confirmed with defendant that her uncle's first name was Jose.
As it turns out, the vehicle defendant was driving was registered to two people, Rosario Minero, who was never located, and Steven Hernandez. Hernandez testified that he never owned the Envoy, that he did not know defendant and that he was the victim of identity theft. District Attorney Investigator Julian Villagomez, a 24-year police veteran, testified that drug-trafficking organizations often register vehicles using false names/identifications in an attempt to "shield themselves from law enforcement."
While checking both the personal information of defendant and the vehicle registration, on questioning defendant told Deputy Hyduke that she was coming from Tijuana; that she was a hair stylist; that she worked from home; that she was on "vacation"; and that she was headed to Los Angeles to "buy clothing." Defendant also stated her uncle lived in Chula Vista, but volunteered she did not know his address. Defendant told Deputy Hyduke that she had crossed the border on foot that morning, then met her uncle in Chula Vista where she picked up the vehicle.
As relevant to the evidentiary issues raised by defendant, the record shows at trial Deputy Hyduke was asked a series of questions after the prosecutor showed the jury the body camera video of the traffic stop. Deputy Hyduke testified there were exchanges in the video that suggested defendant was not a member of the "innocent motoring public."
Specifically, Deputy Hyduke testified that he found it suspicious when defendant "paused" after he asked for the name of her uncle, which suggested defendant was trying to "collect her thoughts and give [him] the -- the right name"; when he realized postarrest, after further reviewing the video, including while on the witness stand, that there was a discrepancy between the first name defendant gave for her uncle and the name on the vehicle registration; when the empty car seat was covered by a blanket, suggesting a child was underneath; and when defendant said she was on vacation, but also said she was going shopping in Los Angeles, which he found were "two different things."
On redirect, the prosecutor further elicited testimony from Deputy Hyduke concerning his "impressions [of defendant] from the body camera video," including, by way of example, that defendant was being "chatty" and that she was trying to "convince" him she was in fact going shopping.
According to defendant, Deputy Hyduke's testimony about her behavior/conduct in the video was inadmissible because it allegedly "did not embrace a matter beyond the common experience of the jurors because the jury could easily draw its own inferences and conclusions about [her] demeanor while detained by [Deputy] Hyduke." To support this contention, defendant relies primarily on People v. Hernandez (1977) 70 Cal.App.3d 271.
There, a narcotics investigator testified that he used a powerful telescope to conduct surveillance of a methadone center on August 27; that he observed the defendant park his truck near the center; that the defendant next stood outside the truck and was approached by four individuals, two of whom the investigator recognized from previous narcotics investigations; that during a conversation between the defendant and the four individuals, the defendant had his hands near his waist area; that after the four individuals walked away, a few other individuals approached the defendant; and that the defendant then shook his head from side to side, causing the other individuals to walk away. (People v. Hernandez, supra, 70 Cal.App.3d at p. 274.)
On questioning, the investigator in People v. Hernandez opined that the defendant had engaged in a narcotics transaction on August 27 involving the four individuals and that the defendant had communicated to the other individuals who subsequently approached him that he was out of narcotics by shaking of his head from side to side. The investigator, however, testified he did not detain anyone that day because he " 'hadn't actually seen a transaction occur, although [he] felt one had occurred.' " (People v. Hernandez, supra, 70 Cal.App.3d at p. 275.)
On September 3, the investigator in People v. Hernandez set up another surveillance of the methadone center. Again, the defendant was observed pulling up in his truck. The defendant next was seen getting out of his truck, going to the passenger door, opening it, and reaching into the floorboard of the passenger seat. Four individuals from the center next approached the defendant, and one of them was seen removing money from his pants pocket. At that point, the investigator informed two other officers located nearby. As the officers moved in, the defendant was seen making a throwing motion. Officers later found a cigarette packet with 12 orange balloons inside. Analysis showed the balloons contained heroin. (People v. Hernandez, supra, 70 Cal.App.3d at pp. 275-276.)
The issue in People v. Hernandez was whether the People could prove that the defendant was involved in a narcotics transaction on August 27, as opposed to when he was arrested on September 3, by using the expert testimony of the inspector. The court said it could not. In reaching this conclusion, the court noted the conduct observed by the inspector on August 27 was "highly equivocal" (People v. Hernandez, supra, 70 Cal.App.3d at p. 281), inasmuch as the inspector testified he had not seen a narcotics transaction on this date, but rather he merely "felt" one had occurred (id. at p. 275). As such, the court noted that to "permit [the inspector] to state his opinion was to invite jury speculation that it was not based merely on his observations, but also on otherwise inadmissible information concerning [the] defendant and his alleged customers which he had received in the course of his duties." (Id. at p. 281.)
People v. Hernandez is distinguishable from the instant case. In that case, the expert rendered an opinion that was, for all practical purposes, tantamount to opining the defendant sold heroin on August 27, despite the fact that the defendant was never charged in connection with that alleged sale and, more importantly, that there was no evidentiary basis to support such an opinion.
In contrast to People v. Hernandez, in the testimony challenged by defendant in the instant case, Deputy Hyduke did not opine on the ultimate issue of whether defendant was guilty of transporting and/or selling narcotics. Instead, using the video evidence as an evidentiary basis, he opined that defendant's statements/conduct during the traffic stop provided suspicion she was involved in drug trafficking. (See Prince, supra, 40 Cal.4th at p. 1223; Romo, supra, 248 Cal.App.4th at p. 697; Harris, supra, 83 Cal.App.4th at p. 375.)
We therefore conclude Deputy Hyduke's testimony in connection with the video evidence was not improper, as it related to a subject matter that was sufficiently beyond the common experience of, and was of assistance to, the trier of fact: whether defendant was a "paid" or "blind" mule for purposes of counts 1 and 2. (See Evid. Code, § 801, subd. (a).) As such, we further conclude defense counsel's performance was not deficient in failing to object to the admission of this evidence. (See Nguyen, supra, 61 Cal.4th at p. 1051.)
Defendant also contends defense counsel was deficient in failing to object to Deputy Hyduke's testimony that he became suspicious as a result of her response, or lack thereof, to his question whether there was cocaine in her vehicle. As noted ante, when Deputy Hyduke asked defendant about the cocaine, rather than saying "no" defendant instead looked back at the vehicle, shrugged her shoulders and shook her head.
The record shows when the prosecution asked whether defendant's behavior in response to this question was a "signal," Deputy Hyduke responded, "yes" and stated, "[b]ecause when people -- typically -- what I do with them when I'm doing these kind of things when I'm on traffic stops, on all the thousands of traffic stops, I compare what everyday drivers not engaged in criminal activity, what they do, and I -- that's my gauge for other people that might be involved in criminal activity. [¶] If I was to ask somebody that's not engaged in criminal activity and I ask them something like that, they're going to be 'no' and they're going to be, you know, a little offended that I even ask them something like that. [¶] But then she's -- when she didn't say no, no, no. But then I asked her [about] cocaine, and she said -- then she doesn't say no, she just gives me those gestures, that's out of the norm for even what she was portraying to me so I'm going to think, 'Okay. Maybe there's cocaine in this vehicle.' "
According to defendant, this testimony was improper because Deputy Hyduke opined on the "veracity" of defendant's response. To support her contention, defendant primarily relies on People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill).
In Sergill, two police officers opined as to the veracity of an eight-year-old victim. Both officers separately testified that, based solely on their training and experience, the victim was telling the truth when she claimed to be a victim of sexual misconduct by the defendant, her uncle. (Sergill, supra, 138 Cal.App.3d at p. 38.) The trial court overruled the defense's objection on the basis of lack of foundation, noting "this officer has had . . . seven years of experience, and has written . . . a thousand or more reports, . . . and I think [in] the course of that he would be normally expected to judge whether a person, in his opinion, is telling the truth or not." (Ibid.)
The Sergill court reversed. In so doing, it concluded there was "no authority to support the proposition that the veracity of those who report crimes to the police is a matter sufficiently beyond common experience to require the testimony of an expert." (Sergill, supra, 138 Cal.App.3d at p. 39.) It further concluded that "even if this were a proper subject for expert testimony, nothing in the record establishes the qualifications of these officers as experts. The mere fact that they had taken numerous reports during their careers does not qualify them as experts in judging truthfulness." (Ibid.)
Sergill is inapposite here. Unlike the two officers in that case, the record here shows Deputy Hyduke did not testify defendant was or—as the case may be—was not truthful when he asked her during the stop if there was cocaine in the vehicle. Instead, Deputy Hyduke testified defendant's gestures to this particular question raised his suspicion that defendant was in fact involved in drug trafficking, a conclusion reached by Deputy Hyduke not merely as a result of his training and experience, as was the case of the two officers in Sergill, but rather as a result of the totality of the circumstances, as summarized ante, including her response on the video.
Equally, if not more important, unlike the situation in Sergill, the jury here saw the video on which the expert's testimony was based. As such, and unlike the jury in Sergill, the jury here could make its own determination whether defendant's nonverbal response to the question whether there was cocaine in the vehicle suggested she might be trafficking drugs.
Finally, Sergill is distinguishable from the instant case because in Sergill, the trial court in front of the jury vouched for one of the officer's testimony that the victim was credible. (Sergill, supra, 138 Cal.App.3d at p. 38.) Here, in contrast, the court specifically instructed the jury that, while it could consider the experts' opinions, it was "not required to accept them as true or correct." The court also instructed the jury that the "meaning and importance of any opinion [were] for [it] to decide" and that it "may disregard any opinion that [it] [found] unbelievable, unreasonable, or unsupported by the evidence."
We conclude Deputy Hyduke's testimony concerning defendant's reaction on the video to his question whether she was trafficking cocaine did not usurp the jury's role in determining defendant's credibility, or lack thereof, as such testimony went to the central issue of whether she was a "blind" or "paid" mule. Therefore, we again conclude defense counsel's performance was not deficient in failing to object to such testimony. (See Nguyen, supra, 61 Cal.4th at p. 1051.)
(b) Deputy Rodriguez
As relevant here, Deputy Rodriguez opined that the 7.8 kilograms of methamphetamine seized had a street value of over a $1 million; that given the amount seized, the drugs were not for personal use but were instead being transported for sale by drug traffickers (as noted ante); and that defendant was not a "blind mule" (as also noted ante). Deputy Rodriguez also testified to his impressions of defendant's behavior/conduct on the video, as did Deputy Hyduke.
As before, defendant contends this evidence was improper expert testimony. We disagree.
First, for the reasons already given ante in connection with Deputy Hyduke's testimony, we reject defendant's contention that Deputy Rodriguez's testimony concerning her conduct/behavior on the video was impermissible expert testimony.
Second, again for the reasons discussed, we also reject defendant's contention Deputy Rodriguez's testimony she knew of the presence of the drug and, thus, was a "paid mule" was improper because it expressed the view she was "guilty" of counts 1 and 2. Instead, such evidence went to the central issue in this case and was, as we have noted, properly admitted. (See Romo, supra, 248 Cal.App.4th at p. 697; but see People v. Torres (1995) 33 Cal.App.4th 37, 43-44 [noting it was error, albeit harmless, for a police officer to "express opinions about the law," including that a gang member's efforts to collect "rent" on behalf of the gang from members who sold drugs in its territory was more a crime of "robbery" than "extortion," and to express an opinion about "what crimes were committed, and [the] defendant's guilt of those crimes"].) We thus conclude defense counsel's performance was not deficient in failing to object to this testimony. (See Nguyen, supra, 61 Cal.4th at p. 1051.)
(c) Agent Krause
Similar to the testimony of Deputies Hyduke and Rodriguez, Agent Krause testified that defendant was not a "blind mule." He based this opinion on the quantity of drugs found in defendant's vehicle, noting that a typical "blind mule" involved a "very low quantit[y] of drugs," usually marijuana, as opposed to the "high value narcotics" uncovered in the instant case; that a "blind mule" usually involved a person with a "regular pattern"; and that the sequence of events of how the vehicle came into the United States did not support such a theory (i.e., a person other than defendant drove it across the border the day before defendant crossed, defendant then picked up the vehicle in the United States and was driving it to Los Angeles when she was stopped).
As before, we reject defendant's contention that the testimony she was not a "blind mule" was improper (see Romo, supra, 248 Cal.App.4th at p. 697) and that she was deprived effective assistance of counsel in connection with the admission of such testimony. (See Nguyen, supra, 61 Cal.4th at p. 1051.)
In light of our decision, we deem it unnecessary to decide whether defendant was prejudiced by any alleged deficiency of defense counsel. (See Strickland, supra, 466 U.S. at p. 687.)
D. Admission of Defendant's Prior Border Crossings
1. Additional Background
The record shows pretrial the parties disputed whether evidence of defendant's border crossings between May 2014 and September 16, 2014 (the day she was stopped) was admissible. Specifically, the People moved in limine to admit records from the Treasury Enforcement Communications System (TECS) showing both defendant's crossing of the border from Mexico into the United States during this time period and the Envoy's crossing of the border that defendant was driving when she was stopped.
With respect to defendant, the prosecution argued such evidence was relevant, once a foundation was laid by Agent Krause, to show that defendant was in fact a routine crosser of the border, which the prosecution further argued was circumstantial evidence that defendant's story on the day she was stopped—that she was on "vacation" and was headed to Los Angeles to "buy clothes"—did not add up, thus, showing consciousness of guilt under CALCRIM No. 362. With respect to the Envoy, the prosecution argued the evidence showing it was brought into the United States from Mexico the day before defendant was stopped was relevant because drug cartels used a process called "compartmentalization" in assigning various drug trafficking duties to individuals, many of whom are unaware of the others involved in the smuggling operation.
The record shows defense counsel then objected only with respect to the evidence of when the Envoy came across, noting it was at a different point of time than defendant and, thus, was irrelevant. The court preliminary ruled to admit the TECS evidence subject to foundational requirements being met.
During the same proceeding, the trial court considered defendant's related motion to exclude evidence that defendant crossed from Mexico into the United States "several times per week in the months leading up to the offense," arguing only that such evidence was irrelevant. During oral argument on defendant's motion, however, the defense argued for the first time that such evidence was also improper character evidence and should be excluded on this separate ground.
In response, the prosecution again argued that the fact defendant was frequently in the United States, as revealed by the TECS evidence, suggested she was not on vacation as she told Deputy Hyduke during the stop, as her "being in the United States [was] really not a special occasion for her, it's rather routine." Based on this evidence and evidence from defendant's phone showing her movement both before and after she crossed into the United States, the calls she received and made in connection with her movement, and her unsuccessful attempt to log into a wireless network at a Walmart located in the United States near the border about 8:13 a.m. that same day, the prosecution argued the TECS evidence was in fact relevant.
The trial court ruled the issue of whether to admit such evidence was essentially an Evidence Code section "352 call," noting that while the relevance of such evidence was not "overwhelming," there was some relevance to it and its admission was not substantially outweighed by the probability it would consume an undue amount of time. (See Evid. Code, § 352, subd. (a).)
At trial, the TECS evidence showed that in 2014, defendant crossed the border from Mexico into the United States as a passenger in a vehicle on seven days in June, nine days in July, 11 days in August and five days in September, up to September 11.
2. Guiding Principles
Under Evidence Code sections 350 and 351, respectively, "[n]o evidence is admissible except relevant evidence[,]" and "all relevant evidence is admissible." Under Evidence Code section 210, "relevant evidence" means "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Under Evidence Code section 352, the trial court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Courts "afford trial courts wide discretion in assessing whether in a given case a particular piece of evidence is relevant and whether it is more prejudicial than probative." (People v. Duff (2014) 58 Cal.4th 527, 558 (Duff); People v. Covarrubias (2015) 236 Cal.App.4th 942, 947 [noting under the " 'abuse of discretion standard, "a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice" ' "].)
Here, we conclude the court's ruling to admit the TECS evidence was not arbitrary or capricious, in light of the expert testimony that drug traffickers, to move drugs, often seek out individuals who frequently cross the border from Mexico into the United States, and in light of defendant's statements to Deputy Hyduke during the stop that tended to suggest defendant was not a frequent border crosser. Although defendant on appeal does not argue otherwise, we further conclude the court properly exercised its broad discretion when it ruled the admission of such evidence would not necessitate undue consumption of time (see Evid. Code, § 352, subd. (a)), as demonstrated by the record of Agent Krause's foundational testimony concerning the TECS evidence. (See Duff, supra, 58 Cal.4th at p. 558.)
Assuming, without deciding, that defendant preserved the issue of whether the prior crossing evidence should have been excluded as improper character evidence pursuant to Evidence Code section 1101, subdivision (a), we conclude the admission of such evidence was not error under this statute.
As noted ante, defendant's motion in limine on this issue was limited to relevancy grounds. --------
Evidence Code section 1101, subdivision (a) provides that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 1101, subdivision (b), however, permits admission of evidence that a person committed "a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
Defendant summarily contends that the prosecution sought to admit the prior crossing evidence to show defendant allegedly "routinely crossed the border on drug[-]related business." (Emphasis and capitalization omitted.) The record belies this contention. Indeed, as the People point out, and as demonstrated by the testimony of Deputy Rodriguez, there was no evidence before the jury that defendant had ever been involved in drug trafficking before her arrest in this case.
Regarding defendant's relevancy objection, for the reasons already given ante, we conclude the trial court did not abuse its discretion in admitting the prior crossing evidence. We also conclude the admission of such evidence was not unduly prejudicial, in light of the fact it was not used by the prosecution to show defendant was engaged in drug trafficking on any other occasion before her arrest in this case.
In any event, even assuming the trial court abused its discretion in admitting the prior crossing evidence, that error was harmless. Generally, the admission of evidence in violation of state law, here Evidence Code sections 210 and 352, is reversible only upon a showing that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Here, as noted ante, the key issue in this case was whether defendant was a "paid" or "blind" mule; that is, whether she had knowledge of the methamphetamine to support her convictions on counts 1 and 2. In light of the record showing the prosecution did not seek to use the prior crossing evidence to establish defendant had engaged in other drug trafficking transactions before her arrest in this case, we conclude the prior crossing evidence was only marginally relevant, on its own, to the main issue in this case. As such, its admission, even if in error, was harmless. (See Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. NARES, J.