THE PEOPLE v. JESUS RUELAS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Jesus Ruelas appeals from a judgment of eight years and eight months in state prison for manufacturing methamphetamine and possessing methamphetamine for sale.   On appeal, Ruelas contends his convictions should be reversed because (1) the trial court erred in denying his motion to suppress evidence, (2) the court erred in denying his motion for a new trial on the basis of alleged prosecutorial misconduct, and (3) the court erred in not awarding him additional presentence custody credits under Penal Code section 4019.¹  Finding no prejudicial error, we affirm.

STATEMENT OF THE CASE

Appellant was charged in a three-count information with manufacturing methamphetamine, possessing methamphetamine for sale, and possession of methamphetamine.  (See Health & Saf.Code, §§ 11377, subd. (a), 11378 & 11379.6, subd. (a).)  It was also alleged that appellant had served a prison term as described under section 667.5, subdivision (b).

Appellant pled not guilty and initially denied the prison term allegation.   Prior to trial, appellant moved to suppress evidence, but the trial court denied the motion.   A jury found appellant guilty as charged on the three counts, and appellant then admitted the prior prison term.

Appellant filed a motion for a new trial based on alleged prosecutorial misconduct.   Specifically, appellant contended that the prosecutor improperly vouched for the credibility of one of the witnesses.   The trial court denied the motion, and sentenced appellant to eight years and eight months in state prison.   Appellant was awarded 776 days of custody credits.   He timely filed an appeal from the judgment of conviction.

STATEMENT OF THE FACTS

On November 7, 2007, Los Angeles County Deputy Sheriff Erni Masson and his partner, Angela Gonzalez, saw Jessica Higginson driving a car while not wearing a seat belt.   The deputies activated their patrol car's lights, and Higginson turned into a trailer park.   The deputies followed Higginson as she drove to the front of space 35, and parked the car directly behind another vehicle.

When Deputy Masson asked Higginson for her driver's license, she said it was in her purse which was inside the other vehicle.   Higginson said the car she was driving belonged to her boyfriend, “Jesse.”

Appellant then came out of the trailer in space 35, approached the deputies, and asked them what they were doing.   The officers explained that they were conducting a traffic stop.   Appellant told the officers that he owned the car, and that Higginson was his girlfriend.

Appellant appeared “a little ag[ ]itated,” so Deputy Masson looked at appellant's waistband to “make sure he [didn't] have anything bulging [like] maybe a weapon under his shirt.”   Deputy Masson noticed “a piece of plastic protruding from the right coin pocket of [appellant's] jeans.”   Based upon his training and experience as a deputy sheriff for over 18 years, during which he was personally involved in over 500 cases of narcotics possession, Deputy Masson knew that “the coin pocket is a common place for narcotics users to hide their narcotics in plastic baggies.”   He asked appellant “what he had in his pocket.”   Appellant seemed nervous and replied, “ ‘I don't know.’ ”   When he heard appellant's answer, Deputy Masson “knew it was narcotics.”   Deputy Masson then removed a plastic baggie from appellant's coin pocket.   It contained approximately 1.03 grams of methamphetamine.

After placing appellant under arrest for possession of methamphetamine, Deputy Masson asked appellant if he lived in space 35's trailer.   Appellant said, “No.” Appellant also stated that he did not know who lived there.   Deputy Masson then asked if anyone was currently in the trailer.   Appellant replied, “Yes. There's this guy in there.”   Appellant denied knowing the man's name, but claimed the man did not live in the trailer.   Deputy Masson asked Higginson if she lived in space 35's trailer, and she stated, “No.”

At this point, another man emerged from behind the trailer.   He admitted coming from inside the trailer, but denied living there and claimed not to know who did.   When Deputy Masson asked whether anyone else was in the trailer, the man said he did not know.   Deputy Masson thought there might be “a burglary in process, maybe a home invasion.”

The deputies placed appellant, Higginson, and the other man in the patrol car, and entered the trailer to do a “protective sweep to see if anyone needed medical attention or if in fact there was a burglary with other suspects inside.”   When Deputy Masson entered the trailer, he immediately noticed a strong chemical smell.   He saw what appeared to be large amounts of methamphetamine on a table, several chemical bottles, and a warm hotplate in the bathroom.

A narcotics task force subsequently searched the trailer.   The task force found items consistent with an active methamphetamine laboratory.   There were sufficient materials in the trailer to create two pounds of methamphetamine.

When appellant was arrested, the deputies located a set of keys on his person, one of which opened the front door of the trailer.   A neighbor in the trailer park testified that he saw appellant 12 to 20 times at space 35's trailer in 2007.   He described Higginson as being at the trailer “all the time.”

Appellant testified at trial.   He admitted he intended to use the methamphetamine found in the baggie, but denied manufacturing methamphetamine.   According to appellant, he purchased the trailer in the summer of 2007 and eventually leased it to three men.   In the middle of October of 2007, the tenants failed to pay the rent and abandoned the property.   Appellant then went to the trailer to put in carpet and wood floors.   The trailer was vacant at that time.

On November 7, the date of his arrest, appellant had gone to the trailer with his assistant, “Jerry,” to clean the trailer so it could be rented again.   He had not been in the trailer for at least 20 days, and because he did not possess a key, Jerry climbed through the window to open the front door.   According to appellant, there was no electricity in the trailer that day.

Upon entering the trailer, appellant was “astonished” by what he saw.   He and Jerry began getting rid of the methamphetamine laboratory equipment when the deputies arrived at the trailer.   Appellant told Deputy Masson he did not reside in the trailer because he considered his actual residence to be his home in Lancaster.   He claimed to have told the officers that he was at the location in order to clean the trailer.

DISCUSSION

Appellant contends (1) that the trial court erred in denying his motion to suppress evidence seized from his person and recovered during a search of his trailer, (2) that the court should have granted his motion for a new trial because the prosecutor committed misconduct by vouching for the credibility of Deputy Masson, and (3) that he was entitled to additional presentence custody credit under the 2010 amendments to section 4019.   We address each contention in turn.

A. Motion to Suppress

Appellant first contends that the trial court erred in denying his motion to suppress the methamphetamine recovered from his right coin pocket and the evidence recovered from his trailer.   In reviewing a trial court's ruling on a motion to suppress, an appellate court applies two different standards of review.   The reviewing court defers to the trial court's findings of fact, both express and implied, if supported by substantial evidence.   The reviewing court then independently applies the pertinent legal principles to those facts to determine whether the motion should have been granted.  (People v. Carter (2005) 36 Cal.4th 1114, 1140.)

In this case, the parties agree that absent certain exceptions, an officer may not seize an item from an individual's clothing or search his or her residence without probable cause.  (See, e.g., People v. Ray (1999) 21 Cal.4th 464, 467–468, fn. omitted [“[O]fficers are required under the Fourth Amendment [of the federal constitution] to obtain a warrant before searching a house or seizing personal effects;  or it must be established they acted pursuant to a recognized exception to that requirement.”].) “ ‘[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts․'  [Citation.]   It is incapable of precise definition.   [Citation.]  ‘ “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” 'and that belief must be ‘particularized․’  [Citation.]”  (People v. Celis (2004) 33 Cal.4th 667, 673.)

Here, we conclude that Deputy Masson had probable cause to seize the plastic baggie from appellant's right coin pocket.   First, Deputy Masson saw a portion of the baggie protruding from appellant's coin pocket.   This factually distinguishes the instant case from Sibron v. New York (1968) 392 U.S. 40, where the officer reached into the defendant's pocket without first observing anything protruding from it.  (See id. at p. 45.)   Second, it was reasonable for Deputy Masson to rely upon his experience in over 500 narcotics cases to suspect that the plastic baggie in appellant's coin pocket contained illegal drugs.   His suspicions were further confirmed by appellant's failure to recall what he had in his pocket as well as by appellant's nervous demeanor when asked about the contents of his pocket.   Thus, unlike the facts of Minnesota v. Dickerson (1993) 508 U.S. 366, Deputy Masson's seizure was supported by more than the plain view of the protruding plastic baggie.  (See id. at pp. 377–379 [plain view doctrine did not support warrantless search of a lump in defendant's pocket where incriminating object was not immediately identifiable as contraband].)   On this record, there were reasonable and particularized grounds to conclude that appellant was guilty of possessing narcotics in the plastic baggie.  (See, e.g., People v. Harris (1965) 62 Cal.2d 681, 683 [probable cause existed to search defendant where arresting officer saw “exposed portion of the plastic bag in her pocket;  he knew from his experience as a narcotics investigator in the Los Angeles Police Department that narcotics are commonly packaged in plastic bags;  and he knew that [defendant's husband] had just been arrested”].)   Thus, Deputy Masson had probable cause to seize the baggie from appellant's coin pocket.   Accordingly, the trial court did not err in denying the motion to suppress the evidence found in the baggie.

Additionally, there was no error in denying the motion to suppress the evidence found in the trailer because appellant abandoned any challenge to the legality of the search of the trailer by denying that he lived in the trailer or knew who did.  (See People v. Dees (1999) 221 Cal.App.3d 588, 594–595 [“[A] total disclaimer of any interest in the area or item searched at the time of the search [citation], or the absence of any evidence of ownership, possession or control of such area or item [citation], will preclude a successful challenge to the legality of that search.”].) Even were we to credit appellant's testimony that he told the officers he was at the location to clean the trailer, those alleged statements do not indicate that appellant was the property owner, and as such, had a legitimate expectation of privacy in the trailer.

In any event, the deputies were entitled to conduct a warrantless search of the trailer under the community caretaking exception.   In People v. Ray, supra, 21 Cal.4th 464, the California Supreme Court held that “the community caretaking exception ․ may justify a warrantless entry, including the protection of property, ․ ‘where the police reasonably believe that the premises have recently been or are being burglarized.’ ”  (Id. at p. 473.)   Deputy Masson had reasonable grounds to suspect that a burglary was occurring or had recently occurred because appellant and the other male both came out of the trailer but denied living there or knowing who lived there.   Accordingly, there was no error in denying the motion to suppress.

B. Prosecutorial Misconduct

Appellant next contends that he is entitled to a new trial because the prosecutor committed misconduct by improperly vouching for the credibility of Deputy Masson.  (See People v. Turner (2004) 34 Cal.4th 406, 433 [prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record].)  “When a claim of misconduct is based on the prosecutor's comments before the jury, ‘ “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ”  [Citation.]”  (People v. Friend (2009) 47 Cal.4th 1, 29.)

Here, the alleged incident of prosecutorial misconduct occurred during the prosecution's case-in-chief.   Deputy Masson was called as a prosecution witness, and his trial testimony was interrupted by an afternoon recess.   After the trial resumed, Deputy Masson testified that the light was on in the trailer's bathroom.   On cross-examination, defense counsel asked whether Deputy Masson “really” recalled that fact “today.”   Deputy Masson answered, “Yes.” Defense counsel then asked, “Did you talk to the district attorney before you testified today?”   Deputy Masson answered, “Yes. I spoke with him.”   Defense counsel asked Deputy Masson whether he spoke with the district attorney during the afternoon recess.   He answered, “Yes.”

On redirect examination, the prosecutor referred to his conversation with Deputy Masson during the break concerning whether the bathroom light was on.   The prosecutor asked, “Are you telling the truth about that?”   Deputy Masson answered, “Yes. That's the only light that was on, that I remember being on.”   The prosecutor then asked, “Would you get up there and lie for me?”   Deputy Masson answered, “No.” Defense counsel objected and requested an admonition, but the court overruled the objection and denied the request.

On this record, we are not persuaded that there was improper vouching.   First, the prosecutor did not provide his

Moreover, even were we to find otherwise, we conclude that any misconduct was harmless because there is no reasonable probability that appellant was prejudiced by the questioning.  (See People v. Turner, supra, 34 Cal.4th at p. 421 [claim of improper vouching of expert witness fails where there is no reasonable probability that the improper vouching would affect the verdict].)   Here, appellant admitted there was methamphetamine manufacturing equipment in the trailer.   He argued, however, that he had no knowledge the equipment was in the trailer.   Deputy Masson's challenged testimony—that there was a light in the bathroom—undermined appellant's story to the extent that it contradicted his claim that there was no electricity in the trailer that day.   Appellant's credibility, however, had already been damaged by the fact that a key to the trailer was found on his person.   Moreover, appellant's convictions for manufacturing methamphetamine were based upon the circumstantial evidence that he owned the trailer, had rented the space several months previously, was seen on numerous occasions in and around the trailer during those months, possessed methamphetamine for personal use, and had the key to the trailer.   On this record, we conclude there is no reasonable probability that absent the allegedly improper vouching, appellant would have secured a more favorable result.   Accordingly, the trial court did not err in denying the motion for a new trial.

C. Sentencing Under Section 4019

DISPOSITION

The convictions are affirmed.   The sentence is also affirmed without prejudice to any relief that appellant may obtain should the California Supreme Court conclude that the 2010 amendments to section 4019 apply retroactively.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All further statutory citations are to the Penal Code, unless otherwise stated..  FN1. All further statutory citations are to the Penal Code, unless otherwise stated.

EPSTEIN, P. J. WILLHITE, J.