Opinion
No. A154956
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. AARON MUDRICH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-704167-1))
Defendant Aaron Mudrich seeks reversal of his conviction on two counts, possession of a "shuriken" and possession of a methamphetamine pipe, on the grounds that the court should have granted his motion for acquittal under Penal Code section 1118 for lack of evidence and that these convictions were not supported by sufficient evidence. Mudrich's very similar claims both rely on his contention that a police officer's trial testimony, in which the officer admitted his description of the shurikens at a preliminary hearing was inaccurate, demonstrated that the officer trial testimony lacked credibility altogether. We will not second-guess the trial court's determination that the officer's trial testimony was credible. Furthermore, this testimony was supported by other evidence. Therefore, we affirm.
BACKGROUND
In January 2018, the Sonoma County District Attorney charged Mudrich in an information with possession of a shuriken (Pen. Code, § 22410; count one), carrying a switchblade (§ 21510, subd. (b); count two) and possessing a methamphetamine pipe (Health & Saf. Code, § 11364, subd. (a); count three).
The information did not further describe the alleged shuriken. The Penal Code defines "a 'shuriken' " as "any instrument, without handles, consisting of a metal plate having three or more radiating points with one or more sharp edges and designed in the shape of a polygon, trefoil, cross, star, diamond, or other geometric shape, for use as a weapon for throwing." (Pen. Code, § 17200.)
All statutory citations are to the Penal Code unless otherwise stated.
As agreed to by the parties, a court trial was conducted in May 2018. A taxicab driver testified that on June 21, 2017, the driver, at the request of the Petaluma Police Department, picked up Mudrich and dropped him off at a Petaluma, California motel. The driver received a call from Mudrich within a half hour for another ride. The driver returned to the motel and helped Mudrich put his belongings into the taxicab, which consisted of "at least, two suitcases, . . . at least two of the large Tupperware-type containers, a backpack, and maybe a couple other sundry items, bags, et cetera." Mudrich indicated he wanted to go to a Santa Rosa motel, but the driver first took him to two stores, after which the driver proceeded to a nearby Santa Rosa gas station. As the driver approached the gas station, the Santa Rosa police called and said police would stop the taxicab at the gas station to speak with Mudrich. Police then stopped the cab and removed Mudrich's belongings from the cab and searched through them. Among other things, the driver saw taken from these belongings "several knives" and "like a methamphetamine pipe and some type of white crystal in a bag."
Officer Andrew Adams of the Santa Rosa Police Department testified that on the evening of June 21, 2017, he was dispatched to a Santa Rosa store to investigate a person travelling in a taxicab who reportedly had threatened to blow up a police car with a drone and a container of gasoline. Adams and his partner, Officer Noel Gaytan, stopped the cab at a gas station, found Mudrich in the cab and, after a record check revealed he was on probation, removed Mudrich's belongings from the cab's back seat and searched through them. Adams pat-searched Mudrich and found two knives in his possession. Also, Adams at trial identified two shurikens found during the stop. He described the shurikens as "made of metal with four sides, and . . . they're angled to come to a point, and all of the sides are also sharpened." During the stop, he noticed the two shurikens on the hood of the patrol vehicle surrounded by other personal items. He understood these shurikens came from Mudrich's belongings because Gaytan, with whom Adams was "in very close proximity" as they searched, was using the hood "as a table" to go through Mudrich's belongings. Adams also saw what he suspected, based on his training and experience as drug recognition expert, was methamphetamine among Mudrich's belongings, but he did not see anything else associated with that drug.
Officer Eduardo Espino of the Santa Rosa Police Department testified that on June 21, 2017, he was dispatched to a Santa Rosa gas station where police had stopped a taxicab. There, he observed officers searching Mudrich's property. Espino had extensive narcotics training and experience identifying pipes used to smoke methamphetamine, which pipes he saw "on a daily basis." At the stop, he saw "a meth pipe" among Mudrich's belongings.
On cross-examination, Espino was asked if he recalled seeing any shurikens among the items found at the stop. He said he saw two that were silver colored and had five points. He said he had given this same description of the shurikens at the preliminary hearing in the case.
On redirect, the prosecutor showed Espino two shurikens and asked him if they were the ones he saw on June 21, 2017. Espino said they were. He described these shurikens being shown to him as of a black, metallic color and having four points. He acknowledged their physical appearance was different than the description he had just given on cross-examination and that he had given at the preliminary hearing. Asked about this difference, he said, "I didn't review my camera. It's been so long." Upon further questioning, Espino testified that the shurikens he was shown at trial were the ones he saw at the police stop and said that previously he had "misremembered" what they looked like.
After Espino testified, the defense moved for dismissal of count one (for possession of shurikens) under Stanton v. Superior Court (1987) 193 Cal.App.3d 265 because Espino had admitted his preliminary hearing testimony was "flat-out wrong," and this testimony was the only support for the holding order issued for count one at the conclusion of the preliminary hearing. The prosecutor responded that the number of points and color of the shurikens were not material to the issuance of that holding order. The court recessed proceedings to allow both sides to brief the issue.
The next day, the court stated its view that Espino's inaccurate preliminary hearing testimony was not a ground to dismiss count one because regardless the testimony had provided probable cause to hold Mudrich on count one. The court explained, "[T]here are certain statutory elements, including a minimum of three points on a Shuriken, no handle, metal plate, sharp edges, can be used as a weapon, and whether the officer testified there were four or five points, whether it was silver or black, is, in fact, immaterial to the minimum statutory showing." After hearing further argument, the court further stated, "[I]f the officer said these are not the items that I booked into evidence, these may be throwing stars, but they're not the throwing stars that I took and seized, and the People say, yeah, but it's close enough, they're still throwing stars, let's go forward, . . . but that's not the evidence I've got in the record." The court characterized Espino's testimony as a "recollection being refreshed upon seeing the actual items which he testified to were the same items that were seized and about which he testified at the preliminary hearing but was incorrect in two respects with regards to their description." It denied defendant's motion to set aside count one.
Adams's partner on the day of the police stop, Officer Gaytan, also testified. He said that on June 21, 2017, he was dispatched to investigate a subject who reportedly "had threatened to do some things to the Petaluma Police Department." He described stopping the taxicab and removing Mudrich's personal property, which consisted of three or four bags of different types, from the cab's back seat. He found "Shurikens and/or Ninja Stars" in a backpack, which were "two black metal Ninja Stars which are kind of like shaped with a pointed edge." At trial, he identified an envelope containing these two shurikens that he had booked as evidence, held one of the items up and described it as having "four pointed edges." He testified that during the stop he ran his finger along the crescent of one of the shurikens to see how sharp it was and would not say it was dullish, although he did not apply sufficient pressure to expose himself to a cut. Also, he said, in his search of Mudrich's belongings at the stop he seized a blue glass pipe and what he believed was methamphetamine (testimony the court allowed, but not for the truth of it being methamphetamine). Gaytan added that Officers Adams and Espino were at the stop as well.
Gaytan also testified as to knives that he found in his search of Mudrich's belongings. Because defendant does not challenge his conviction on count two, we do not discuss the evidence supporting that count further.
After Gaytan testified, the People rested. Mudrich moved for a directed verdict of acquittal under section 1118. His counsel argued that the court should acquit Mudrich on count three (possession of a methamphetamine pipe) because Officer Espino's testimony was wholly unreliable and lacking in credibility as to anything he saw or seized, since almost everything Espino testified to at the preliminary hearing was wrong in some way. Further, the evidence presented at trial regarding count one (possession of a shuriken) did not correspond to the charges established at the preliminary hearing, requiring acquittal under cases such as People v. Graff (2009) 170 Cal.App.4th 345 (Graff). The court denied the motion.
Mudrich then moved for a mistrial on the ground that the evidence introduced at trial regarding count one differed from the evidence presented at the preliminary hearing. His counsel asserted the same arguments he had made in his two previous motions. The court denied this motion as well.
The trial court found Mudrich guilty on all counts. It sentenced him to two years in state prison for felony possession of a shuriken and imposed concurrent six-month sentences for the misdemeanors charged in counts two and three. Mudrich filed a timely notice of appeal.
DISCUSSION
Mudrich argues the trial court erred by denying his section 1118 motion for a judgment of acquittal on counts one (felony possession of a shuriken) and three (misdemeanor possession of a methamphetamine pipe) and, further, that his convictions for these counts must be reversed for lack of sufficient evidence. For both arguments, Mudrich contends that Officer Espino's testimony was so unreliable and lacking in credibility that the court should not have relied on any of it. Mudrich's claims are without merit.
Section 1118 provides, "In a case tried by the court without a jury . . . the court on motion of the defendant . . . shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses." We review a trial court's denial of a section 1118 motion for substantial evidence. That is, we " 'review the whole record in the light most favorable to the judgment . . . to determine whether it discloses . . . 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." (People v. Ringo (2005) 134 Cal.App.4th 870, 880.)
A. Substantial Evidence Supports Mudrich's Count One Conviction.
In the information filed against Mudrich, the People alleged, "On or about June 21, 2017, in the County of Sonoma, State of California, the crime of Possession Of Shuriken in violation of PC22410, a Felony, was committed in that [Mudrich] did . . . possess an instrument and weapon of the kind commonly known as shuriken." The shuriken is not further described. As we have discussed, a "shuriken" is defined in the Penal Code as "any instrument, without handles, consisting of a metal plate having three or more radiating points with one or more sharp edges and designed in the shape of a polygon, trefoil, cross, star, diamond, or other geometric shape, for use as a weapon for throwing." (§ 17200.)
Gaytan's, Adams's and Espino's trial testimony provided substantial evidence that police found two items that supported the allegation in the information and met the statutory definition of a shuriken among the belongings of Mudrich that were removed from the taxicab. Gaytan testified that he found two black metallic "shurikens," or "Ninja Stars," with four sharp points in a backpack belonging to Mudrich and identified them at trial. Adams testified that he and Gaytan removed Mudrich's belongings from the taxicab and he proceeded to search Mudrich, after which he saw on the hood of his patrol vehicle two shurikens that he understood Gaytan had found among Mudrich's belongings. Adams described these shurikens at trial as "made of metal with four sides, and . . . they're angled to come to a point, and all of the sides are also sharpened." Gaytan's and Adams's testimony together are substantial evidence that Mudrich possessed a shuriken.
While Espino's testimony corroborated that of Gaytan and Adams, his was not critical to the evidence that Mudrich possessed a shuriken. Espino was not the officer who conducted the stop, initiated the search, found the shurikens or alone inspected them.
Mudrich does not contest the strength of this evidence. Instead, he argues that "the [c]ourt improperly denied the Penal Code section 1118 motion because the evidence introduced at the trial in regards to count 1 was of a different description than the evidence introduced at the preliminary hearing to support the holding order." He further contends that "[t]he shuriken upon which the holding order for count 1 issued upon at the preliminary hearing was a different object then [sic] the shuriken introduced as evidence at the trial."
Mudrich's argument is unpersuasive because our review of a section 1118 motion focuses on the evidence presented at trial, not at the preliminary hearing. As the People point out, Mudrich attempts to graft onto his section 1118 claim the argument that he was denied due process when he was held over on count one based on testimony later proven to be inaccurate, i.e., Espino's preliminary hearing testimony, which Espino admitted at trial was inaccurate insofar as he said that the shurikens he saw at the stop were silver-colored and had five points. This argument does not challenge the strength of the evidence presented at trial. And while the trial court was entitled to consider the credibility of Espino's trial testimony in evaluating the strength of the evidence, it concluded Espino's trial testimony was credible, characterizing Espino's trial testimony as a "recollection being refreshed upon seeing the actual items . . . that were seized." We will not second-guess the court's determination that Espino's testimony was credible. (People v. Brown (2014) 59 Cal.4th 86, 105-106 [" 'In reviewing a challenge to the sufficiency of the evidence . . . [w]e do not reweigh the evidence or reevaluate a witness's credibility' "].)
Mudrich fails to cite any legal authority that shows the relevance of his due process argument to his section 1118 claim. He cites two cases, but both are inappposite. First, he cites Graff, supra, 170 Cal.App.4th 345, which states that "appellate courts are compelled to reverse convictions where substantial evidence was presented at trial that did not correspond to the charges established at the preliminary hearing." (Id. at p. 362.) In Graff, the defendant was initially charged with seven lewd and lascivious acts. (Graff, at p. 349.) Following a preliminary hearing, the court dismissed two counts about "masturbation incidents" and "expressly matched each remaining count with a specific incident from [the victim]'s testimony." (Id. at p. 351.) The prosecution filed an information that did not contain counts for these masturbation incidents, and the prosecution stated it would not prosecute these incidents. (Id. at pp. 351-352.) However, it argued for the admission of evidence of the masturbation offenses to show motive or intent regarding the remaining charges, which the court allowed. In rebuttal the prosecutor referred to the masturbation and other incidents and concluded, " 'And all of it is lewd.' " (Id. at pp. 352-353, 358.) The appellate court held that the defendant's due process rights to notice of the charges against him were prejudicially violated by the prosecution's use of the masturbation incidents and reversed. (Id. at pp. 360, 367-369.)
Graff is inapposite because it involved a defendant's due process right to be advised of the charges against him so as to avoid being taken by surprise at trial. Mudrich, on the other hand, challenges the trial court's denial of his motion for an acquittal for lack of evidence. These are different issues. Furthermore, Graff involved a prosecution's use at trial of offenses, i.e., the masturbation incidents, for which the defendant was not charged. Here, Mudrich was charged by complaint and information with, and tried for, the same offense, his possession of a shuriken, with the only evidence presented being the shuriken was discovered at a police stop at a Santa Rosa gas station on June 21, 2017. Officer Espino's testimony at the preliminary hearing, even if later determined to be inaccurate, supported this shuriken count and provided notice to Mudrich of what he would be charged with at trial.
Mudrich also cites People v. Burnett (1999) 71 Cal.App.4th 151 (Burnett), an opinion issued by this court and discussed at length in Graff (Graff, supra, 170 Cal.App.4th at pp. 362-365), for the proposition that "the information cannot charge an offense not shown by the evidence taken at the preliminary hearing." In Burnett, an information charged the defendant with one count of unlawfully possessing a firearm and specifically alleged he had possessed a " '.38 caliber revolver.' " (Burnett, at pp. 155-156.) Evidence presented at the preliminary hearing indicated the defendant had possessed this .38 caliber revolver during a particular altercation. (Id. at p. 164.) At trial, the court allowed the prosecution to strike the words " '.38 caliber' " from the information. (Id. at p. 156.) The prosecution then presented evidence of the altercation referred to at the preliminary hearing, and also presented the testimony of a friend of defendant that he took from the defendant a .357-caliber revolver a few days before the altercation and returned it to the defendant on the day of the altercation. (Id. at p. 157.) In closing argument, the prosecutor argued the jurors could convict the defendant of possessing a firearm based on either the evidence of the altercation or the friend's testimony (id. at p. 169), and the jury found him guilty of the charge. (Id. at p. 156.)
This court concluded the defendant was tried for an offense not shown at the preliminary hearing—possession of the .357-caliber revolver as described by his friend. (Burnett, supra, 71 Cal.App.4th at p. 164.) The court stated, "There can be no question that the evidence in this case showed two completely different incidents, involving two separate weapons, that could have supported two charges" of unlawful possession of a firearm. (Id. at pp. 169-170.) But the offense described by the defendant's friend "was never the subject of a preliminary hearing at which it could be determined whether there was probable cause to believe that offense had occurred." (Id. at pp. 170-171.) This violated the law requiring a preliminary hearing be held before an accused can be called upon to defend himself on charges prosecuted by information. (Ibid.)
Burnett is unpersuasive here for the same reasons as Graff. First, the error involved was a violation of a defendant's due process right to "notice of the offense being prosecuted" (Burnett, supra, 71 Cal.App.4th at p. 174), an issue that was not implicated by the standards that apply to the evaluation of Mudrich's section 1118 motion, which concern the strength of the evidence presented at trial. Furthermore, unlike the defendant in Burnett, the prosecution here never contended that Mudrich was involved in different incidents involving different weapons. Rather, Mudrich was charged with and tried for the same shuriken-possession offense stemming from the same incident, with the only difference being a change in an officer's testimony about the physical appearance of the shuriken. This difference was immaterial to the notice Mudrich had of the possession of a shuriken charge against him.
Indeed, the Burnett court distinguished a case relied on by the People, People v. Vance (1956) 138 Cal.App.2d 871, based on a very similar immateriality. The Burnett court acknowledged that in Vance, the appellate court found that an amendment to a charging document changing the description of a car from a " '1950 Ford 4-door sedan' " to a " '1948 Dodge 2-door sedan' " was " 'immaterial.' " (Burnett, supra, 71 Cal.App.4th at p. 171.) The court then distinguished Vance by pointing out that it involved "only a single incident . . . shown by the evidence" and that the Vance defendant "therefore knew the surrounding circumstances of the offense with which he was charged." (Ibid.) The same is true here. Despite Espino's change in his testimony (the information did not have to be amended since no shuriken was specifically described) between the preliminary hearing and the trial, Mudrich knew the surrounding circumstances of the offense with which he was charged.
In short, Mudrich's claim that the court should have granted his section 1118 motion for lack of evidence lacks merit.
B. Substantial Evidence Supports Mudrich's Count Three Conviction.
Mudrich next argues that the wholly unreliable nature of Officer Espino's trial testimony also required the trial court to grant Mudrich's section 1118 motion for acquittal regarding count three, which charged him with misdemeanor possession of a methamphetamine pipe in violation of Health and Safety Code section 11364, subdivision (a). Again, we disagree.
Health and Safety Code section 11364, subdivision (a) states, "It is unlawful to possess . . . any device, contrivance, instrument, or paraphernalia used for unlawfully . . . smoking . . . a controlled substance . . . specified in paragraph (2) of subdivision (d) of [Health and Safety Code] Section 11055 . . . ." Methamphetamine is one of the controlled substances specified in Health and Safety Code section 11055, subdivision (d)(2).
Officer Espino testified that he had the training and experience to identify methamphetamine pipes and that he saw "a meth pipe" among Mudrich's belongings at the police stop. The court's conviction of Mudrich on count three and its other comments and rulings at trial that we have already discussed indicate it found Espino's testimony to be credible. Again, we will not second-guess the trial court's credibility determination. (People v. Brown, supra, 59 Cal.4th at p. 106.) Also, other evidence corroborated Espino's testimony. Although neither the taxicab driver nor Officer Gaytan were necessarily drug experts, each testified that they saw some kind of pipe among Mudrich's belongings.
In short, Mudrich's claim that the trial court erred in denying his section 1118 motion for lack of evidence is without merit. For this same reason, we reject Mudrich's more general claim that his count one and count three convictions are not supported by substantial evidence. This includes our rejection of his contention that "[n]o evidence was introduced at trial to prove that [Mudrich] possessed silver, five pointed starts [sic] as alleged in the Information." The information did not allege a physical description of the shuriken and, again, substantial evidence supports Mudrich's conviction of the charge.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.