THE PEOPLE v. JASON JONES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jason D. Jones appeals his conviction on charges involving the sale and possession for sale of cocaine base.   He claims there is insufficient evidence to support his conviction, relying in part on the fact that the instructions and verdict forms referred to cocaine instead of cocaine base.   He claims the court erred in permitting police officers to testify that in their opinion, he possessed cocaine for sale and was involved in the sale of cocaine, and in failing to give a unanimity instruction.   Appellant also claims the prosecution committed Griffin ¹ error in commenting on his failure to call witnesses, and asks this court to conduct an independent review of the sealed transcript of the Pitchess ² hearing to determine if additional police personnel information should have been disclosed.   We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On April 1, 2008, Detective Joseph Carrillo of the Los Angeles County Sheriff's Department obtained a search warrant based on information about rock cocaine sales from rooms 38 and 14 of the Crenshaw Holly Motel in Inglewood.   The following afternoon, he led a team of undercover officers from the Gang and Narcotics Enforcement Team (GANET) in conducting surveillance of these two rooms at the motel before executing the warrant.   Detectives Bernadette Gambino and Richard Maier, dressed in plainclothes, drove into the motel parking lot in an unmarked vehicle.   They saw codefendant Eric Stephens seated on a bucket just under the stairs of the motel.   Stephens walked over to the car and asked Maier what he needed.   Maier believed he was being asked if he needed “any type of narcotics.”   He told Stephens he was waiting for someone, and would deal with him later.

The detectives moved their vehicle into a parking space where they stayed for about 30 minutes, primarily watching room 38, which was upstairs, and room 14, which was directly underneath room 38.   They saw appellant go “back and forth, and in and out” of room 38 several times.   Detective Maier saw a female come out of a room five doors away from room 38.   The woman handed something to appellant, he gave her something back, and she returned to her room.   Maier could not see what was being exchanged, but he believed he had witnessed a narcotics transaction.   Detective Maier also saw a male ride into the parking lot on a bicycle, meet with appellant on the second floor balcony, and engage in a hand-to-hand transaction.   The man returned to his bicycle and rode off.   Appellant came downstairs and drove away.

Detectives Maier and Gambino left the parking lot and met with other members of the GANET team.   They decided to attempt a purchase of rock cocaine at the motel, followed by execution of the search warrant.   Maier obtained two pre-recorded $20 bills and returned to the motel with Gambino.   Stephens was sitting on the bucket in the parking lot.   Maier motioned for him to come over, and “asked him if he could hook me up.”   What Maier was asking was for Stephens to get him some rock cocaine.   Maier handed Stephens the pre-recorded $20 bills.   Stephens said he would be right back, and went upstairs into room 38 of the motel.

While Stephens was upstairs, a man in a camouflage jacket arrived on a bicycle and knocked on the door of room 15.   Codefendant Julie Normil opened the door.   The two had a conversation, the man gave Normil some money, and she went up the stairs toward room 38.   Stephens came down the stairs and handed Maier four pieces of rock cocaine, which Detective Maier considered a usable quantity.   Stephens went back to his seat on the bucket, and Gambino moved the car across the parking lot against the wall, where they had an unobstructed view of the motel.   Maier alerted the team to the completed sale, and the search warrant was executed.

The search team included eight or nine deputies wearing full tactical gear.   The officers, including Detective Carrillo, first went to room 38.   Julie Normil was outside that room.   Carrillo ordered her to get down on the ground, and she complied.   He saw the curtains of room 38 open, then close.   Carillo knocked on the door and announced they were serving a warrant.   The door was locked and there was no answer.   Based on the curtain movement, Carrillo believed it was necessary to break the door open.   When the officers did so, they found a dresser was in front of the door, blocking their entry.

Upon entering the room, Detective Carrillo found appellant and codefendant Turner sitting on the bed, watching television.   He ordered them to the ground, and asked whose room it was.   Turner said it was his.³  Carrillo found a baggie of marijuana on the nightstand.   Inside the kitchenette area of the room, he found “small little particles of what appeared to be rock cocaine on the countertop.”

Detective Edward Zimmerman also participated in the search.   He noticed that the curtain on the window in the kitchenette area was pulled to the side, and a glass louver panel was missing from the window.   Looking through the window, he saw a baggie of rock cocaine on the ground below.   Zimmerman and Carrillo went downstairs and recovered the baggie, which was “very clean, shiny and bright, and on top of dirt.   It was clean as a whistle.”   Carrillo estimated the street value of the rock cocaine in the baggie was between $400 and $500.   In his opinion, the contents of that baggie and the four rocks of cocaine Stephens sold to Detective Maier matched in consistency and quality.

Carrillo searched Turner and recovered the two pre-recorded $20 bills that Maier gave to Stephens to purchase rock cocaine.   Turner also had another $20 bill, two $5 bills, and a razor blade in his pocket.   Appellant had $50, and Normil had $60.   No paraphernalia was found in the room, and neither Turner nor appellant appeared to be under the influence of cocaine.

The deputies also searched room 14.   One person was in the room, but he was not arrested.

DISCUSSION

I

Appellant claims the evidence was insufficient to support his conviction for sale of cocaine and for possession of cocaine for sale.   When considering a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains reasonable and solid evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Avila (2009) 46 Cal.4th 680, 701.)   We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  (Ibid.) “This standard applies whether direct or circumstantial evidence is involved.”  (People v. Catlin (2001) 26 Cal.4th 81, 139.)

Much of the evidence in this case is circumstantial.   During Detective Maier's initial observation of the Crenshaw Holly Motel, he saw appellant go in and out of room 38 several times.   He saw appellant exit room 38 and engage in a “hand-to-hand exchange” in front of the doorway on the balcony with a woman who came out of a room a few doors east of room 38.   He could not see what was being handed back and forth, but it was his expert opinion that a narcotics transaction had taken place.   According to Detective Maier, “it's common for people to walk up, do a quick hand to hand, where they're touching each other's hands, at which time I might not be able to see what's being passed from hand to hand, but that's the common way narcotics are passed in the street.”

Approximately three to five minutes later, Detective Maier saw a man ride into the parking lot on a bicycle.   He went up to the second floor balcony, where appellant had been walking in and out of room 38.   The detective saw the man hand something to appellant, and he saw appellant hand something to the man, but he could not tell what the men handed to each other.   The man on the bicycle then walked down the steps and rode away.   Detective Maier believed this hand-to-hand exchange was a drug transaction.

When Detective Maier and the other members of the team returned to the motel a short time later, Detective Maier asked codefendant Stephens to “hook [him] up” and handed Stephens two pre-recorded $20 bills.   Stephens entered room 38-the same room appellant had been walking in and out of-and returned a few minutes later with four pieces of rock cocaine, which he handed to the detective.

After this transaction, the search warrant for room 38 was executed.   The officers saw a curtain open and close as they approached the room.   There was no answer when the officers knocked on the door.   They forced the door open and found that a dresser weighing 50 or 60 pounds had been moved in front of the door to block entry into the room.   Appellant and codefendant Turner were sitting on the bed watching television.   The pre-recorded bills from Stephens' sale of cocaine base were found on Turner and crumbs of cocaine base were found on the kitchen counter.   A louver was missing from the kitchen window, and outside, below that window, was a clean baggie containing a large enough quantity of cocaine base to indicate it was possessed for sale, not personal use.

This evidence, viewed in the light most favorable to the judgment, establishes that room 38 was used for the sale of cocaine base, and that appellant was among the individuals involved in such transactions.   The jury could reasonably infer from the movement of the curtain that appellant or Turner saw the officers approach the room and jointly moved the heavy dresser in front of the door to prevent the officers from entering.   It also was inferable that appellant or Turner threw the baggie containing sufficient cocaine base for sale from the window of room 38 in anticipation of the officers' search.   Appellant's presence in the room with Turner, who possessed the pre-recorded bills from Stephens' sale of four rocks of cocaine just a short time before the search, supports the inference that appellant was a participant in the possession of cocaine base for sale and the sale of cocaine base from room 38.   The fact that there was strong direct evidence that codefendant Turner possessed cocaine base for sale and sold cocaine base did not preclude the jury from finding, based on the evidence, that appellant also committed these crimes.   The evidence was sufficient to support the judgment.

II

Appellant also claims the evidence was insufficient to support his conviction because the jury instructions and jury verdicts referred to cocaine rather than cocaine base, as charged in the information.

The amended information charged appellant with selling, transporting or offering to sell cocaine base, in violation of section 11352, subdivision (a) (count 3), and with possession for sale of cocaine base, in violation of section 11351.5 (count 6).   Greater punishment is prescribed for possession for sale of cocaine base (§ 11351.5 [state imprisonment for three, four, or five years] ) than for possession of cocaine for sale (§ 11351 [state imprisonment for two, three, or four years] ).

The information unambiguously charged appellant with offenses involving cocaine base.   Unlike People v. Adams (1990) 220 Cal.App.3d 680, 687-688, where the criminalist identified the substance as cocaine but did not mention cocaine base, criminalist Victor Wong testified that the substances recovered in this case and submitted to him for testing contained cocaine base.   There was substantial evidence to support the guilty verdicts on the charged offenses.

This case is more like People v. Martin (2008) 169 Cal.App.4th 822 (Martin ), in which the information and the evidence named the controlled substance at issue as cocaine base.   The jury was correctly instructed on the elements of the crime of possession of a controlled substance, but the written instructions and the verdict forms both listed that substance as cocaine, not cocaine base.   Noting that defense counsel contributed to the confusion by referring to the substance as cocaine, and also had the opportunity to alert the trial court to the confusion over the name but failed to do so, the court held appellant had forfeited the issue.  (Id. at pp. 826-827.)

In this case, too, the jury was correctly instructed on the elements of the charged offenses, but the instructions, the verdict forms, some of the testimony, and much of the argument by the prosecutor and defense counsel identified the controlled substances at issue as cocaine, not cocaine base.   Defense counsel contributed to the confusion, and did not alert the trial court to the problem.   Under these circumstances, we agree with the Martin court that the issue has been forfeited.

Even if the issue was not forfeited, we find no prejudice from the conflicting references.   There was no ambiguity in the criminalist's identification of the substance as cocaine base.   There was no cocaine other than cocaine base recovered in this case, so no likelihood of confusion between two types of controlled substances.   Instead, the jury was likely to consider references by the witnesses and by counsel to cocaine, and the designation in the jury instructions and verdict forms to cocaine, as a short form for the only substance at issue in the case-cocaine base.   On this record, we conclude appellant was not deprived of his constitutional right to due process and a fair trial by the inaccurate references to cocaine rather than cocaine base.   But to avoid even the possibility of confusion, we join the admonition in Martin that courts and counsel “be particularly careful that all references to a controlled substance name the correct controlled substance.”  (169 Cal.App.4th at p. 827.)

III

Appellant claims the court erred in admitting the expert opinions of the detectives that he was involved in the sale of cocaine at the motel, and that he and Turner possessed cocaine for the purpose of sale.

The first instance complained of occurred during the prosecutor's direct examination of Detective Maier.   He first asked the detective whether, based on his background, training and experience, and his contact with codefendant Stephens, he had an opinion whether Stephens was involved in the sale of cocaine on April 2, 2008.   The detective stated it was his opinion that Stephens was selling cocaine, and he explained the basis of this belief.   The prosecutor then asked:  “Now based on your 20 years experience, do you have an opinion as to and your observations of defendant Jones, the one that's made the two hand transactions?   Do you have an opinion as to whether he was involved in selling cocaine on April 2nd, 2008?”   Defense counsel objected because the question called for an ultimate conclusion, and the court overruled the objection.   Detective Maier then answered:  “Based on my observations I've seen, the hand-to-hand transactions conducted, I believe he was also involved in the sales of cocaine at the motel.”

Out of the presence of the jury, defense counsel objected to a similar question posed to Detective Zimmerman, explaining:  “[I]f the question is allowed to remain and the answer is allowed to remain, then basically we don't have a jury trial anymore, we just have this witness saying that my client is a drug dealer.   Certainly he can opine that drugs are possessed for the purpose of sale, but he can't opine that a particular defendant was possessing those drugs.   That is for the jury to decide.   Similarly an expert witness cannot opine as to an ultimate issue that the jury has to decide, was a defendant selling drugs or not.   Now is his activity consistent with somebody who is selling drugs?   That's a different question, but was he a drug seller, I think that's for the jury to decide.”   The court overruled the objection, and Detective Zimmerman was asked:  “Do you have an opinion as to whether a female who goes up to ․ defendant Jones, they make contact with their hands, and that happens twice, and that person is inside room No. 38, would you have an opinion as to whether defendant Jones had cocaine for the purpose of sales?”   Detective Zimmerman replied, “Yes, sir.”

Detective Carrillo was asked whether, based on his background, training and experience, he had an opinion as to whether codefendant Turner and appellant possessed cocaine for the purpose of sales or for personal use.   It was his opinion that they possessed it for sale.   He explained:  “Based on the fact that they weren't under the influence of rock cocaine, that they were the lone occupants in that room where a surveillance of persons, a person selling rock cocaine was seen on the landing;  the fact that there was currency recovered from Mr. Turner's pocket that matched the serial number that I had previously recorded, and the fact both of them were unemployed.”   It was also his opinion that appellants Turner and Stephens “all worked in concert selling rock cocaine from room 38.”

“A witness may not express an opinion on a defendant's guilt.  (People v. Torres (1995) 33 Cal.App.4th 37, 47;  People v. Brown (1981) 116 Cal.App.3d 820, 827-829.)   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.  (Torres, supra, at p. 47;  Brown, supra, at pp. 827-828;  see Evid.Code, § 805.)  ‘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.’  (Torres, supra, at p. 47.)”   (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)

The opinions elicited from the detectives in this case were not of guilt or innocence.   Instead, each detective was asked to evaluate the conduct he observed and give his opinion, based on his background in narcotics investigations, on whether it could be characterized as narcotics sales.   There was nothing improper in this testimony.

IV

Appellant claims his convictions must be reversed because the court failed to give a unanimity instruction.   In a criminal case, a jury verdict must be unanimous, and the jury must agree unanimously that the defendant is guilty of a specific crime.  (People v. Russo (2001) 25 Cal.4th 1124, 1132.)  “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.”  (Ibid.)

Appellant argues that he could have been convicted of possession for sale (count 6) based either on the substance found on the kitchen counter, or on the substance in the baggie found outside below the kitchen window.   Given the state of the evidence, he claims a unanimity instruction was required.

Contrary to appellant's assertion, there was neither evidence nor argument that the charges of possession for sale were based on the substance found on the kitchen counter.   Detective Zimmerman testified that he found “some small, some very small minute pieces of what appeared to be rock cocaine on a kitchen counter.”   This looked to him like an amount consistent with use by one person.   He agreed that the amount was “too small to be further cut up to be effectively sold[.]”

Victor Wong, the criminalist who tested the substances recovered in this case, identified the substance retrieved from the kitchen counter and introduced at trial as People's exhibit 21 as “0.07 gram[s] of solid substance containing cocaine (in the base form).”   He testified that he had no training or experience as to what minimum weight would constitute a usable amount of rock cocaine.   No evidence was presented about the street value of the substance found on the kitchen counter.

In comparison, the baggie found on the ground below the window of room 38 contained a total of 5.16 grams of solid substance containing cocaine base.   Detective Carrillo estimated the street value of rock cocaine in that baggie to be between $400 and $500.   It was Detective Maier's opinion, based on the quantity of rock cocaine contained in that baggie, that it was possessed for sale, not for personal use.

In closing, the prosecutor argued that the possession element of the charges could be based on “the cocaine that was found on the kitchen counter and the cocaine that was thrown out the window of room 38 when the police were serving the search warrant.” ⁵  He also argued that the cocaine found on the counter in plain view showed that appellant and codefendant Turner knew of its presence.   But the prosecutor did not argue that the charge of possession for sale could be premised solely on the substance found on the kitchen counter.

Turner's counsel asked the jurors to use their common sense when looking at the photographs of the cocaine recovered by the officers.  “They don't even appear to be the same type of cocaine, from the same mix.   There's been expert testimony about that.   And that white cocaine, the smaller bits of it that's supposedly found on a kitchen counter in No. 38.   There's expert testimony that says that really wasn't an amount that could have been sold.   And also you can look at it.   They're just basically crumbs.”

“A unanimity instruction is not required if the evidence shows one criminal act or multiple acts in a continuous course of conduct.”  (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.)   Here, evidence of cocaine base “crumbs” on the kitchen counter and the large quantity of cocaine base in rock form contained in the baggie found outside the window supported the prosecution theory that cocaine base was cut into smaller rocks (for sale) on the kitchen counter, then stored in the baggie which was thrown out the window as the detectives arrived for the search.   This continuous course of conduct was essentially one criminal act, not separate acts of possession for sale about which the jurors could disagree.   No unanimity instruction was required on this count.

Nor was there any harm from the failure to give the instruction.   The evidence was that the very small quantity of cocaine base on the counter was a usable amount;  no evidence was presented that it was a quantity sufficient for sale.   There was no reasonable likelihood that the verdict was premised only on the cocaine base found on the kitchen counter.

Appellant also claims a unanimity instruction was required on the charge of sale of cocaine base (count 3) because there was evidence of three possible acts on which the jury could have relied-his two hand-to-hand transactions and Stephens' sale to Detective Maier.   There was testimony and argument that appellant was seen engaging in hand-to-hand transactions which Detective Maier believed were drug transactions, but the substance involved in those transactions was not recovered or tested.   Appellant's conviction for sale of cocaine base could not have been based on these transactions where there was no evidence that the substance exchanged was cocaine base.   The jury was properly instructed that in order to find appellant guilty of sale of cocaine, it had to find that the controlled substance was cocaine.   The only sale as to which there was such evidence was Stephens' sale to Detective Maier.   The prosecutor argued that since Stephens was guilty of that sale, “defendant[s] Turner and Jones are equally guilty as aiders and abettors, if you believe they aided [,] facilitated, promoted, encouraged or instigated defendant Stephens in selling cocaine in any way.”   Given the state of the evidence, the only act upon which the jury could have relied to convict appellant of the sale of cocaine base was aiding and abetting Stephens' sale to Detective Maier.   The unanimity instruction was not required.

V

Appellant contends the prosecutor improperly commented on his failure to call witnesses in violation of Griffin v. California, supra, 380 U.S. 609, 615.   In Griffin, the United States Supreme Court held that the Fifth Amendment prohibits the prosecutor from commenting, directly or indirectly, about a defendant's failure to testify.   This prohibition does not extend to comments on the state of the evidence, or on the defendant's failure to introduce material evidence or call logical witnesses.  (People v. Turner (2004) 34 Cal.4th 406, 420.)   With this in mind, we consider the context of the claimed error.

In closing argument, appellant's counsel argued that after Detective Maier observed what he believed were drug transactions, the officers failed to “take the next step” to ascertain whether Jones actually had sold cocaine to the woman at the motel and the man on the bicycle Counsel argued that while the officers might not have wanted to “blow their cover” at the time they observed the transactions, “[i]s it reasonable to believe that they wouldn't have taken any further action to validate what their belief was?   No, that's not reasonable.   But that's only part of it, because here we were at an isolated location where the police are doing an undercover investigation․  We've got a gentlemen, either a male Caucasian, or a male Hispanic male Latino, having another quick interaction, according to Det. Maier with Mr. Jones, and he rides away, up the street.   Now what possible basis would they have had not to stop that person?   Once that person is out of the area of the motel they could have followed him and stopped him and searched him.   And they could have found nothing, or the police were hoping to find something like what they found here, cocaine, or maybe what they found during the alleged drug buy from Mr. [Stephens] later on.   But, no, we don't have evidence of anything, because they didn't find that guy.   That guy was gone.   And that is evidence of whether Mr. Jones was selling or not.   Wouldn't it be great to have that guy come in?  ‘I got stopped, I got searched, and nothing was on me.’   Or, ‘I got stopped, I got searched, and here's the rock that was on me.’   But, no, we don't have any of those things.   So you can't tell if anything was handed off in any of these two occasions between Mr. Jones and either the female Black, or the male white Hispanic.   You can't tell whether Mr. Jones gave anything, you can't tell whether the person gave anything.   The police officer says he believes it's a drug transaction, because it looks like a drug transaction.   You can't tell any of those things.   You don't see Mr. Jones put anything in his pocket after the person leaves.”

The prosecutor responded to this argument in rebuttal:  “If the defense thought any witness could help them in this case, all they had to do was serve a [subpoena] on somebody, whoever they thought could help this case.   They're experienced lawyers, they know how to do their job.”   Appellant objected;  the court overruled the objection, but instructed the prosecutor to “move to a different subject.”

The prosecutor then argued:  “Defendant Jones, apparently, according to Mr. Haig, made two transactions.   These people are known to defendant Jones.   If he really didn't do a drug transaction, why weren't they in court?   Why didn't they come into court?   Because defendant Jones knows them.   Are they just shaking hands?”   Appellant's objection to this argument was sustained, and the court admonished the jury:  “The defendants are not required to make any presentation whatsoever in this trial.”   Appellant moved for a mistrial based on this argument, which the court denied.   We find no abuse of discretion in this ruling.

The prosecutor was not commenting on appellant's failure to testify, but on appellant's failure to call logical witnesses.   This was not improper.  (See People v. Turner, supra, 34 Cal.4th at p. 419.)   Nor did the prosecutor's comments impermissibly shift the burden of proof to appellant.  (See People v. Bradford (1997) 15 Cal.4th 1229, 1340 [distinction clearly exists between permissible comment that a defendant has not produced any evidence, and improper statement that a defendant has a duty or burden to produce evidence or to prove his or her innocence].)   Immediately following the prosecutor's remarks, the court emphasized to the jury that appellant was not required to present any evidence at trial.   More importantly, the prosecutor's comments were “brief and mild” and there was no suggestion that the jury should draw an inference of guilt from appellant's failure to present this evidence.   Thus, even if the comments were improper, any error was harmless.  (People v. Turner, supra, 34 Cal.4th at pp. 419-420.)   The mistrial motion was properly denied.

VI

Appellant asks that we conduct an independent review of the reporter's transcript of the trial court's in camera examination of the police personnel records to determine whether any documents were incorrectly withheld.  (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232.)   We have done so, and find no basis for the release of information beyond that ordered released by the court with respect to any of the involved officers.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Griffin v. California (1965) 380 U.S. 609..  FN1. Griffin v. California (1965) 380 U.S. 609.

FN2. Pitchess v. Superior Court (1974) 11 Cal.3d 531..  FN2. Pitchess v. Superior Court (1974) 11 Cal.3d 531.

FN3. According to the motel registration card, Turner had rented room 38 on April 1, 2008, paying $50 in cash, and then paid an additional $50 in cash for April 2..  FN3. According to the motel registration card, Turner had rented room 38 on April 1, 2008, paying $50 in cash, and then paid an additional $50 in cash for April 2.

FN4. All statutory references are to the Health and Safety Code unless otherwise indicated..  FN4. All statutory references are to the Health and Safety Code unless otherwise indicated.

FN5. The jury was instructed on the lesser included offense of simple possession of cocaine..  FN5. The jury was instructed on the lesser included offense of simple possession of cocaine.

WILLHITE, J. MANELLA, J.