P. v. Lovelady

 

 

 

 

 

 

 

 

 

 

 

 

Filed 9/13/12  P. v. Lovelady CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
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THE PEOPLE,             Plaintiff and Respondent, v. GAILA JANETTE LOVELADY,             Defendant and Appellant.	A129765         (Del Norte County       Super. Ct. No. CRF10-9119)
THE PEOPLE,             Plaintiff and Respondent, v. ALLEN LEE PRESLAR,             Defendant and Appellant.	A129834         (Del Norte County       Super. Ct. No. CRF10-9119)

 

            When
deputy sheriffs conducted a probation search of a bedroom in the residence
occupied by defendants Gaila Janette Lovelady and Allen Lee Preslar, they found
plastic baggies suggestive of the drug trade. 
In Preslar’s wallet was the combination to a safe located in the hallway
outside the bedroom, in which was found a significant quantity of
methamphetamine, digital scales, and ammunition.  Based primarily on this evidence, Lovelady pleaded
guilty to simple possession of methamphetamine and was convicted after trial of
possession for sale and other crimes,
as was Preslar.  Finding no merit in
defendants’ challenges to their convictions, we affirm.

I.  BACKGROUND

            Defendants
were charged in an amended information, filed April 22, 2010, with possession
for sale of a controlled substance (Health & Saf. Code, § 11378),
possession of a controlled substance (Health & Saf. Code, § 11377,
subd. (a)), and possession of drug paraphernalia (Health & Saf. Code,
§ 11364).  In addition, Preslar
alone was charged with possession of ammunition by a convicted felon (Pen.
Code, former § 12316, subd. (b)(1)). 
The amended information alleged Preslar had served three prior prison
terms (Pen. Code, § 667.5, subd. (b)) and suffered two prior drug felony
convictions (Health & Saf. Code, § 11370.2).

            The
charges against both defendants were based on the results of a probation search
of Preslar’s residence.  On the morning
of March 17, 2010, deputy sheriffs went to a two-bedroom house in Crescent
City.  The residence was found to be
outfitted with a two-camera surveillance system, wirelessly connected to a
television in the living room.  Present
in the home were Preslar, Lovelady, her ex-husband, Jesse Lovelady (Jesse), and
two other persons.  One of them, Jennifer
Gokey, said she was a visitor, while the other, Samuel Wright, said he was
“staying there.” 

            Lovelady
was found sitting on a bed, partially clothed, in a bedroom that had been
identified during a prior search as occupied by Preslar.  Both men’s and women’s clothes were found in
the room.  Scattered about the bedroom
were baggies containing residue of what the police surmised to be
methamphetamine.  Although some of the
baggies contained jewelry stones, and were claimed by Lovelady as part of her
jewelry-making activities, they also appeared to be “rinse baggies,” baggies
used to hold a controlled substance and “rinsed” after use to recover any
residual material.

            Jesse
claimed to occupy the other bedroom.  In
that bedroom, deputies found a safe, which Jesse opened voluntarily, containing
firearms and ammunition.  Jesse told
police the arms were his. 

            A
second safe was in the hallway, near the bedroom doors.  Both defendants denied any knowledge of the
safe, explaining it had been there when they moved in.  While looking through a wallet found on the
nightstand in Preslar’s bedroom, which contained Preslar’s Social Security card
and photo identification, the officers found a slip of paper bearing the serial
number and combination of the safe.  When
they opened the safe using the combination found in Preslar’s wallet, the
deputies found three bundles of currency, each containing exactly $500, a
handgun ammunition magazine, three digital scales, small plastic baggies, four
unused hypodermic needles, pouches containing methamphetamine pipes and spoons,
and 1.1 ounces of methamphetamine.  At
trial, the deputies explained how the various items discovered in the safe and
around the residence suggested the methamphetamine was intended both for sale
and personal use.

            A
toxicology screen of Lovelady conducted several months after her arrest was
positive for methamphetamine.  Over 25
years earlier, she had been diagnosed as suffering from multiple
sclerosis.  A defense expert testified
about the disease, noting stimulants were often prescribed to treat its
symptoms, as they had been for Lovelady. 
Sufferers could also use a stimulant such as methamphetamine to
self-medicate.  Lovelady also had been
treated “for a prolonged period of time” with a prescription medicine that is
self-administered by hypodermic syringe. 
The most recent prescription was dated five years prior to her arrest.

            Lovelady
pleaded guilty to the simple possession count a few days before the scheduled
trial and proceeded to trial on the remaining charges.  Defendants were convicted of all charges, and
the prior prison term enhancements for Preslar were found true.  Lovelady was placed on probation, and Preslar
was sentenced to a total prison term of six years eight months.

>II. 
DISCUSSION

A.  Lovelady’s Contentions

            >1.  >Simple Possession as a Lesser Included
Offense

            Notwithstanding
her guilty plea to the charge of simple possession, Lovelady now contends the
conviction “cannot stand” because simple possession is a lesser included
offense of possession for sale.  We agree
with the Attorney General that Lovelady forfeited any challenge to her
conviction for simple possession on these grounds when she entered the guilty
plea.

            “A
defendant . . . cannot be convicted of both an offense and a lesser
offense necessarily included within that offense, based upon his or her
commission of the identical act.”  (>People v. Sanchez (2001) 24 Cal.4th 983,
987, disapproved on another ground in People
v. Reed (2006) 38 Cal.4th 1224, 1228–1229.) 
Defendant’s argument that, as a matter of law, her simple possession
conviction was a lesser included offense of her conviction for possession for
sale necessarily rests on the assumption that both convictions arose from the
same criminal conduct, in a manner analogous to a defendant suffering two
homicide convictions of different degrees based on the same killing.  (Sanchez,
at p. 989 [manslaughter is a lesser included offense of murder].)  Unlike a killing, however, defendant’s
possession of methamphetamine was potentially divisible.  (Cf. Neal
v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another
ground in People v. Correa (2012) 54
Cal.4th 331, 334 [whether, for purposes of Pen. Code, § 654, a course of href="http://www.mcmillanlaw.com/">criminal conduct is divisible and
therefore gives rise to more than one act depends upon the intent of the
actor].)  If all of the methamphetamine
in defendant’s possession were intended for sale, simple possession would have
been a lesser included offense of possession for sale.  If, however, defendant intended to use some
of the methamphetamine for sale and some for another purpose, such as personal
use, both convictions would be supported by different criminal conduct.  (E.g., People
v. Tenney (1958) 162 Cal.App.2d 458, 463 [convictions for simple possession
and possession for sale both supported when defendant sold undercover officer a
portion of his heroin supply and left with the remainder].)  As a result, whether simple possession was a
lesser included offense of possession for sale in these circumstances was an
issue of fact, not law.

              Here, there was substantial evidence from
which the jury could have concluded—had it not been precluded from considering
the issue by defendant’s plea—that defendant possessed some of the
methamphetamine for the purpose of sale and some for her personal use.  As the deputies explained, the safe and
bedroom contained evidence suggesting the occupants of the residence were
conducting drug sales, including the precisely calculated rolls of cash, the
sizable amount of methamphetamine, and the large number of baggies.  In addition, there was evidence Lovelady was
a user of methamphetamine, and the hypodermic needles, pipes, and spoons were
tools of use.  On this basis, the
convictions for simple possession and possession for sale could have been found
to arise from different acts of possession, and the former would not have been
an included offense of the latter.

            By
pleading guilty to the simple possession count, defendant prevented the jury
from determining whether she possessed methamphetamine solely for sale or for
another purpose as well.  She cannot
raise the issue for the first time on appeal. 
(See, e.g., People v. Pinon
(1979) 96 Cal.App.3d 904, 909–910 [“There is, however, a more
fundamental reason why these issues may not be raised on appeal:  since they go to the question of guilt or
innocence, they have been ‘removed from consideration’ by the guilty
plea”].)  Her lesser included offense
argument was forfeited by her plea.href="#_ftn1"
name="_ftnref1" title="">[1]

            Defendant
contends she could not have knowingly waived this argument because the second
conviction had not yet occurred when she pleaded guilty.  A defendant, however, does not preserve the
right to appeal all errors occurring after entry of a guilty plea, but only
those that are “unforeseen or unknown” at the time of the plea.  (People
v. Mumm (2002) 98 Cal.App.4th 812, 815; see People v. Panizzon (1996) 13 Cal.4th 68, 78 [“that the events
supposedly giving rise to defendant’s disproportionality claim occurred afterwards likewise is of no consequence”].)  Defendant’s second conviction was entirely
foreseeable at the time she entered her plea, since the prosecution intended to
proceed to trial on the charge of possession for sale within days
afterward.  If she intended to press her
claim that one was a lesser included offense of the other, she was required to
forego the plea and argue her case to the jury.

            2.  Lesser
Included Offense Instruction

            Lovelady
also contends the jury should have been instructed that if a reasonable doubt
existed as to whether she possessed the methamphetamine for sale, she could be
convicted only of the lesser included offense of simple possession.  (People
v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry).)  We review instructional issues de novo.  (People
v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on another ground in >People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1.)

            When
a defendant is charged with two crimes, one of which is a lesser included
offense of the other, this type of instruction, called a “Dewberry instruction,” is appropriate.  (Dewberry,
supra, 51 Cal.2d at p. 555.) 
Even if no lesser included offense is charged, the trial court
ordinarily must instruct on the elements of any lesser included offense
supported by the evidence and provide the jury the option of convicting on the
lesser offense.  (People v. Breverman (1998) 19 Cal.4th 142, 162 [sua sponte duty to instruct
on all supported lesser included offenses]; People
v. Crone (1997) 54 Cal.App.4th 71, 76 [instructional duty].) 

            The
unusual situation presented here precluded use of the ordinary procedure.  If the jury found a reasonable doubt with
respect to Lovelady’s intent to sell but not her possession of methamphetamine,
it would necessarily have concluded she possessed the drug exclusively for
personal use.  The jury could not be
given the option of convicting her of simple possession with respect to that
possession, however, because she had already been convicted, through her plea,
of possessing the methamphetamine for a reason other than sale.  (People
v. Statum (2002) 28 Cal.4th 682, 688, fn. 2 [guilty plea is the legal
equivalent of a verdict]; People v.
Bryant (1992) 10 Cal.App.4th 1584, 1596–1597 [double jeopardy bars
subsequent trial for same offense following guilty plea].)  Accordingly, the trial court was precluded
from giving the sua sponte lesser included offense instruction ordinarily
required in these circumstances. 
Instead, if the jury found reasonable doubt with respect to an element
of Lovelady’s possession of the methamphetamine for sale, it was required
simply to acquit her of the charge, without convicting her a second time of the
lesser offense.

            This
is the result effectively directed by the trial court’s instructions, which
required the jury to find each element of the charges against Lovelady beyond a
reasonable doubt.  Because the jury’s
only alternative was to acquit if reasonable doubt existed, the jury was
properly instructed.href="#_ftn2"
name="_ftnref2" title="">[2]

            >3.  >Failure to Instruct on Authorized Possession
of Hypodermic Needles

            Lovelady
contends the trial court erred in denying her request to instruct the jury that
legally authorized possession of hypodermic needles was a defense to the charge
of possession of drug paraphernalia.  Again, we review claims of instructional
error de novo.  (People v. Berryman, supra, 6 Cal.4th at p. 1089.)

            Authorized
possession of a hypodermic needle—for example, possession pursuant to a
doctor’s prescription—is an affirmative defense to a charge of possession of
drug paraphernalia.  (Health & Saf.
Code, § 11364; People v. Fuentes
(1990) 224 Cal.App.3d 1041, 1045.)  A
defendant is entitled to an instruction on an affirmative defense if the record
contains substantial evidence supporting the defense.  (People
v. Mentch (2008) 45 Cal.4th 274, 288.) 
Because authorization relates to the defendant’s guilt or innocence, it
need not be proven by a preponderance of the evidence; rather, the evidence of
authorization need only be sufficient to raise a reasonable doubt regarding the
defendant’s guilt.  (People v. Mower (2002) 28 Cal.4th 457, 480–481.)  Accordingly, “substantial evidence supporting
the defense” in this context means evidence that, if believed, could raise a
reasonable doubt as to Lovelady’s guilt. 
(See People v. Salas (2006) 37
Cal.4th 967, 982.)

            The
only evidence Lovelady cites to support her claim of authorized possession is
the record of a prescription, written five years earlier, for hypodermic
needles to self-administer a multiple sclerosis medicine.  There was no evidence the four hypodermic
needles found in the search were actually obtained pursuant to that, or any
other, prescription.  To find reasonable
doubt of Lovelady’s guilt on the basis of the evidence in the record, the jury
would have been required to infer that Lovelady obtained the hypodermic needles
found in the safe in 2005, found it unnecessary to use them for her treatment
at the time, and retained them for five years, eventually locking them in
Preslar’s safe.  Particularly given the
evidence that Lovelady was an active methamphetamine user, these inferences are
so tenuous as to constitute speculation. 
The evidence therefore could not support a reasonable doubt.  (People
v. Ramirez (2006) 39 Cal.4th 398, 467.)  The trial court was correct to refuse the
requested instruction.href="#_ftn3"
name="_ftnref3" title="">[3]

            >4.  >Presentence Custody Credit>

            Lovelady
contends she should have been afforded eight, rather than six, days of
presentence custody credit.  The Attorney
General concedes the issue.  Accordingly,
we direct appropriate modification of the judgment.

B.  Preslar’s Contention

            Preslar
contends the trial court violated his due process right to present a defense by
precluding him from challenging the quality of the police investigation.  We review the trial court’s evidentiary
rulings for abuse of discretion.  (>People v. Hoyos (2007) 41 Cal.4th
872, 898.)

            This
issue first arose during Lovelady’s cross-examination of one of the
investigating deputies.  Counsel asked
the deputy whether he had asked Wright, one of the other persons found in the
home, if Wright owned the money found in the safe.  The court sustained an objection, reasoning
the question was irrelevant because any answer given by Wright to the deputy
would constitute inadmissible hearsay. 
When counsel argued he was “entitled to check out the thoroughness of
their investigation,” the court disagreed, saying, “It’s the results of the investigation,
not the investigation itself that is . . . admissible evidence.”

            Counsel
for Preslar later asked the same deputy how many of the items marked in
evidence belonged to Gokey, the person identified by police as a visitor.  The deputy responded none, to his
knowledge.  When counsel asked for the
basis of his belief, the prosecutor objected. 
In sustaining the objection, the court explained that questions about
ownership, in this context, were necessarily based on hearsay and called for a
legal conclusion.  The court noted that
counsel’s true purpose in asking the question was to suggest the investigation
had been “shoddy,” which the court declined to permit.  The court characterized repeated questions
about the nature of the investigation as a “ â€˜fishing expedition’ â€
and reiterated its refusal to permit questions designed merely to suggest a
deputy “could be a better investigator.”

            Somewhat
later in the trial, the prosecution raised the issue of a possible expert
witness for the defense, a former supervisor in the local sheriff’s office who was prepared to criticize the manner in which
the investigation was performed.  The
court told counsel it would not permit expert testimony criticizing the quality
of the investigation, but it would allow testimony disagreeing with the
deputies’ testimony explaining, for example, their conclusions the
methamphetamine was possessed for sale. 

            Based
on this record, defendant argues, “The trial court repeatedly ruled that
neither defendant would be allowed to present evidence regarding the manner in
which law enforcement conducted their investigation.  This included prohibiting examination of law
enforcement witnesses about the way the search of the house was conducted and regarding
questioning of others present about ownership of the many items seized and
taken into evidence.  The court also
precluded the defense from calling a former member of law enforcement to
testify on the subject of investigation techniques followed in this case
compared to good investigation practices.”

            Stated
this broadly, the record does not support Preslar’s argument.  Although the trial court disallowed
cross-examination and expert testimony challenging the quality per se of the
investigation, it by no means precluded “examination of law enforcement
witnesses about the way the search of the house was conducted.”  As to the digital scales found in the safe,
for example, Preslar’s counsel was permitted to establish that the deputies
took no fingerprints from the scales, never saw Preslar holding them, and never
asked Preslar if he owned them.  More
generally, the attorney was permitted to ask whether the deputies wore gloves
during the search, whether they investigated the residents’ income to determine
whether they had a legitimate source for the money found, whether they
determined if Preslar had ever touched the wooden box in which the
methamphetamine was found, whether fingerprints were taken from the baggies,
whether they determined if any of the residents had a legitimate need for the
hypodermic needles, whether the scales were operable, and whether they knew who
put various items in the safe. 
Lovelady’s counsel was permitted to ask similarly probing
questions.  In other words, the trial
court’s general ruling in no way prevented defense counsel from exploring the
nature of the deputies’ investigation.

            Further,
we find no abuse of discretion in the trial court’s conclusion that it was
irrelevant how the deputies’ investigation compared to an ideal of police
investigation.  It was proper for defense
counsel to explore the nature of the deputies’ procedures during the
investigation to determine exactly what was done, since the nature of the
procedures could call into question the reliability of the conclusions drawn
from them.  As noted above, such
questions were not precluded by the trial court’s rulings.  However, that additional measures could have
been taken does not change the nature of the procedures actually employed or
the conclusions properly to be drawn from them. 
Such testimony could easily have led to a time-consuming “trial within a
trial,” since the deputies presumably would have been permitted to explain why
they did or did not perform the additional procedures identified by the defense
expert, a dispute far afield from the pertinent matters at trial.

            Preslar
specifies only two questions actually posed by counsel that were precluded by
the court.  We find no error in the trial
court’s sustaining an objection to the question discussed above—why the deputy
concluded Gokey did not own any of the items found.  To the extent the answer was based on
discussions with Gokey or anyone else, the answer would have constituted
hearsay.  To the extent it was based on
circumstances, the answer was self-evident: the evidence on which the deputy
relied in concluding defendants possessed the items was also the evidence on
which the deputy based his conclusion Gokey did not.  The second specific question raised on appeal
is whether the police fingerprinted the ammunition clip found in the safe
attributed to Preslar.  This was a
foundational question for asking whose fingerprints were found, if any.  The trial court did not explain its ruling
that the question was irrelevant, and we agree with Preslar it could have led
to relevant, although by no means conclusive, information regarding Preslar’s
possession of the clip.

            To
obtain a reversal on the basis of evidentiary errors, a defendant must
demonstrate prejudice under the standard of People
v. Watson (1956) 46 Cal.2d 818, that a more favorable result is reasonably
probable had the trial court ruled differently. 
(Id. at p. 836.)  The trial court’s exclusion of evidence
regarding the professionalism of the deputies’ investigation,> even assuming it was error, would have
been harmless under this standard.  As
discussed above, the issue was not directly relevant to the issues at trial,
and defense counsel were permitted to explore in cross-examination the actual
nature of the deputies’ investigation. 
In addition, the evidence of Preslar’s possession of the items in the
safe was very strong.  They were locked
in a safe, and Preslar’s wallet contained a paper with the serial number and
combination of the safe.  Further, Preslar
lied to police about his access to the safe, from which the jury could infer
guilty knowledge of its contents.  No
evidence was presented to cast doubt on the inferences naturally drawn from
these facts.

            Defendant
contends his question regarding fingerprints on the ammunition magazine might
have led to a different result had it been answered, since the magazine
contained ammunition fitting a weapon found in Jesse’s safe.  For purposes of Penal Code former section
12316, subdivision (b)(1), however, “possession” does not mean ownership or physical
possession.  The offense is satisfied by
either actual or constructive possession, the latter defined as having
“ â€˜control or right to control over contraband,’ â€ even if it is in
the possession of another.  (>People v. Scott (2009) 45 Cal.4th 743,
757.)  Whether the deputies failed to test
for fingerprints or actually found Jesse’s fingerprints would not change the
fact that the ammunition was found in a safe to which Preslar had the
combination.  Even if the ammunition was
actually owned by Jesse, there was no evidence any person other than Preslar
controlled it, given his access to the safe. 
The trial court’s sustaining an objection to this line of inquiry was
harmless.

            Defendant contends
the exclusion of this evidence also violated his due process right to present a
complete defense.  (Holmes v. South
Carolina (2006) 547 U.S. 319, 324.)  However, “ â€˜as a general matter, the
ordinary rules of evidence do not impermissibly infringe on the accused’s right
to present a defense.’ â€  (People
v. Dement (2011) 53 Cal.4th 1, 53.) 
The exclusion of evidence regarding the quality of the deputies’
investigation did not prevent defendant from fully exploring the deputies’
actual conduct.  There was accordingly no
denial of the right of confrontation nor infringement of defendant’s right to
present a defense.

>III. 
DISPOSITION

            The
judgment against Lovelady is modified
to award eight days of presentence custody credit and as so
modified, the judgment is affirmed. 
The
judgment against Preslar is also affirmed.

 

 

                                                                                    _________________________

                                                                                    Margulies, J.

 

 

We concur:

 

 

_________________________

Marchiano, P.J.

 

 

_________________________

Dondero, J.