P. v. Schmid























Filed 5/8/13 P. v. Schmid CA3











NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Lassen)

----






>

THE PEOPLE, Plaintiff and Respondent, v. ERIKA LOUISE SCHMID, Defendant and Appellant.

C070147 (Super. Ct. No. CR027919)

Members of
the Lassen County Narcotics Task Force executed a href="http://www.fearnotlaw.com/">search warrant on the home in which
defendant Erika Louise Schmid lived with her boyfriend and found
methamphetamine, drug paraphernalia, and over $1,500 in cash. Following a jury trial, defendant was
convicted of possession of methamphetamine for sale and misdemeanor obstruction
of a peace officer. Defendant admitted
three prior prison terms and two strikes.
The trial court struck one of the strikes and one of the prior prison
terms, and sentenced defendant to six years in href="http://www.mcmillanlaw.com/">state prison.

On appeal,
defendant contends there is insufficient evidence to support her conviction for
possession of methamphetamine for sale, the prosecutor committed misconduct
during closing argument, and there is
insufficient evidence to support the obstructing a peace officer
conviction. We affirm.

FACTS

>The Prosecution’s Case

On September 10, 2010, at about 5:50 a.m., members of the Lassen County
Narcotics Task Force and Lassen County Sheriff’s Department SWAT team executed
a search warrant on a home in Doyle.
Approximately 14 officers served the warrant, driving up in an armored
SWAT vehicle and several patrol cars.
Officers went to the door, knocked, and said: “Sheriff’s Department, we have a search
warrant. We demand entry.”

Codefendant
Steve Ferris opened the door. Officers
entered, detaining Ferris and searching the home for other occupants. As they searched, officers encountered a pit
bull that they pepper sprayed, a woman and her child, and a woman and a man in
one of the bedrooms.

The
officers then conducted a second, more thorough sweep of the house to look for
people who might be hiding. They found
defendant, seven months pregnant with Ferris’s child, hiding under a blanket
and holding a flip-style cell phone that was flipped open. The phone both received and sent a call at
almost the exact time the warrant was served.

After the
second sweep concluded, officers searched the house. The master bedroom contained .17 grams of
methamphetamine, a razor blade, and a $20 bill on a mirror in the top drawer of
the nightstand next to the right side of the bed. The drawer also had a digital gram scale and
small Ziploc baggies with hearts on them.
Inside a second drawer was a small pouch containing 8 baggies which each
held between .95 and 1.8 grams of methamphetamine.

Underneath
the mattress on the right side of the bed, officers found a spoon, a syringe,
and a Ziploc baggie with hearts on it which contained a crystalline
substance. A black cell phone was on the
bed’s left side headboard. A backpack
with defendant’s driver’s license was on the floor by the left side of the
bed. The backpack contained a small
zippered purse which held six or seven pills.
The left side nightstand contained an item often used by women for tying
up long hair, as well as pills in a heart-shaped baggie and a bottle of
pills.

A type of
propane torch used to heat methamphetamine pipes was between the nightstand and
headboard. A methamphetamine pipe was on
the right side of the bed. The bedroom
also contained a magazine to an Ithaca
.22-caliber rifle, a white sock filled with .22-caliber shells, and indicia in
Ferris’s name. A .22-caliber Ithaca
rifle was in a shed by the main residence.


A video
camera in the front of the home broadcast to a monitor in the master
bedroom. The armored SWAT vehicle used
by the officers could have been seen on the monitor.

A search of
Ferris uncovered two syringes and $1,549 in cash in his pockets.

The cell
phone found on defendant was a “throw phone,” one that did not have any
subscriber information. The phone had
numerous incoming and outgoing messages referring to drug sales, use, and
possession. These messages included: “How much for half a zip”;href="#_ftn1" name="_ftnref1" title="">[1]
“Shannon says you got this and I’m late with the weed. Well that is why I told you I called and got
no answer and no one called back. You
know what room they are in”; “I guess I am riding with Eldon, but because
things didn’t happen as planned earlier, I won’t be able to come nowhere near
the amount I had earlier”; “Almost to the Mark.^[href="#_ftn2" name="_ftnref2" title="">[2]^]
It’s me, Atlantis, and Tony, I
only need two. Come and I won’t fail you
and Steve now, I’m dedicated chasing paper.^[href="#_ftn3" name="_ftnref3" title="">[3]^] Please let this happen, you won’t be sorry”;
“I’ll put that Chevy down as collat” and “then give it to home for half if
wanted afterwards”; “500 waiting in town.
It’s me, it’s me Bri. I got your
pills. I need 14 and will turn and burn
with cash. I’m just past
Janesville. I really need this so I can
make up what I’m short already.”

The phone
also contained two text messages from September 8 and 9, 2010, stating: “Dad, please call or come by” and “You alive,
Dad?” After the search warrant was
served, the phone received the following messages: “Hey, mom I love you”; “Hey, Mom, what are
you doing for your B day”; “Hey, Mom, I love you with all my heart.” Defendant’s birthday is September 24, 1974,
and she has a daughter.

Defendant
and Ferris were arrested after the search.
Ferris told officers the drugs were Ferris’s and intended for sale, and
he last made a sale three days before the search. Defendant tested positive for
methamphetamine.

Testifying
as an expert, a Lassen County sheriff’s deputy said that the methamphetamine in
the pouch was possessed for sale. The
deputy based his opinion on packaging the methamphetamine in baggies, the
amount of methamphetamine in the baggies, the digital scale, the large amount
of cash on Ferris, and Ferris’s admitting he had previously sold
methamphetamine.

>The Defense

Testifying,
Ferris admitted that the residence searched was his home. Defendant occasionally stayed with him at the
home and kept some clothes there, but it was not her permanent home. He admitted telling officers that defendant
stayed with him on and off for the six months before the search, including the
day of the search.

Ferris was
addicted to methamphetamine, having used the drug for the last 35 years. He would use about a gram a day. The eight bags of methamphetamine were for
“[p]ersonal use pretty much, mostly,” and would last him about a week. He used the scale to prevent taking an
overdose of methamphetamine. The $1,549
in his pocket was the proceeds from selling a pickup truck the day before the
search.

Ferris was
under the influence of methamphetamine when he was interviewed by officers
following his arrest. He did not
remember saying he had sold methamphetamine and was not being truthful if he
made such an admission.

On
cross-examination, Ferris admitted numerous prior convictions, prison
commitments, and parole violations.

>Rebuttal

In an
interview with law enforcement, Ferris admitted selling drugs for several
years. He had been together with
defendant for a year and one-half, and they lived together off and on for six
to eight months, but he then said she had just started living with him a few
days before the search. The women’s
clothing found in his residence belonged to defendant. He was in bed with defendant when they heard
the SWAT vehicle. Ferris saw the
officers on the bedroom monitor. When
they heard the noise, defendant left without saying anything.

DISCUSSION

I

>Substantial Evidence Supports Defendant’s

>Conviction For Possession Of Methamphetamine
For Sale

Defendant
contends there is insufficient evidence to support her conviction for possession
of methamphetamine for sale. We
disagree.

“To
determine the sufficiency of the evidence to support a conviction, an appellate
court reviews the entire record in the light most favorable to the prosecution
to determine whether it contains evidence that is reasonable, credible, and of
solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.
[Citations.]” (>People v. Kipp (2001) 26 Cal.4th
1100, 1128.)

The
elements of possession of controlled substances for sale are dominion and
control of the substance in a quantity usable for sale, with knowledge of the
presence and restricted character of the substance. (People
v. Martin (2001) 25 Cal.4th 1180, 1184.) “Constructive possession exists where a defendant
maintains some control or right to control contraband that is in the actual
possession of another. [Citation.]” (People
v. Morante (1999) 20 Cal.4th 403, 417.) “Of course, proof of guilt may be established
by circumstantial evidence. [Citation.]” (People
v. Cordova (1979) 97 Cal.App.3d 665, 669-670.)

Defendant
argues there is insufficient evidence showing that she either possessed the
methamphetamine or intended to sell it.
There was some evidence that the methamphetamine was primarily in Ferris’s
possession. The methamphetamine was
found in the nightstand on the right side of the bed, while the women’s items
found on the left side nightstand suggested defendant slept on the left side. In addition, the large quantity of cash was
found on Ferris.

Other,
stronger evidence supports an inference of joint dominion and control. Defendant had been living with Ferris on and
off for several months and they shared the bedroom in which the methamphetamine
had been found. The jury could
reasonably infer that defendant knew the officers were coming to search the
residence and fled from them -- Ferris admitted they heard the SWAT vehicle,
they could see the vehicle with the bedroom monitor, and Ferris told officers
defendant left the bedroom as soon as she heard the vehicle drive up and hid in
a closet. Flight from law enforcement is
evidence of a guilty mind (Pen. Code, § 1127c; People v. Garrison (1989) 47 Cal.3d 746, 773) and therefore
supports an inference that defendant was complicit in the possession and sale
of the methamphetamine. The jury could
also find that the text messages on the phone in defendant’s possession were
associated with the sale of drugs, which supports an inference that defendant
was actively selling the drugs and therefore jointly possessed them with Ferris
and intended to sell them. Substantial
evidence supports defendant’s conviction as a principal for possession of
methamphetamine for sale.

The
evidence also supports defendant’s guilt under the aiding and abetting theory.href="#_ftn4" name="_ftnref4" title="">[4] A person aids and abets the commission of a
crime when she, acting with (1) knowledge of the perpetrator’s unlawful
purpose, and (2) intent or purpose of committing, encouraging, or facilitating
the commission of the offense, (3) by act or advice aids, promotes, encourages
or instigates the commission of the crime.
(People v. Croy (1985)
41 Cal.3d 1, 12; People v. Beeman
(1984) 35 Cal.3d 547, 561.) The
presence of the methamphetamine in the room she shared with defendant, the
methamphetamine found in her system, and her flight supports a finding that she
knew of the drugs and Ferris’s intent to sell them. The text messages on the phone in her
possession supports an inference that defendant intentionally aided Ferris’s
drug selling.href="#_ftn5" name="_ftnref5"
title="">[5] Defendant’s guilt as an aider and abettor is
thus supported by substantial evidence.

II

>Defendant’s Claim Of Prosecutorial
Misconduct Is Forfeited

Defendant
contends the prosecutor committed two instances of prejudicial misconduct in
the closing argument.

The first
allegation pertains to the following passage discussing the charges against
defendant: “Meth in the urine, let’s
talk about that for a second. Hey, Burns
[the prosecutor’s last name], why not charge her with child abuse? Well, I’ll tell you, Reyes versus Superior
Court, a case in the California Court of Appeal which says the child abuse
statute is just that, it’s a child abuse statute, not fetus abuse. I am deprived of the authority to make such a
charge. And then of course hiding and
what that might mean.”

The second
allegedly improper argument occurred when the prosecutor concluded the argument
as follows: “Why is this case
important? This case is important --
there is a distinction to be made between possessors and sellers, no
questions. Typically society looks upon
possessors as those who need attention and those we should dedicate[] resources
to help, but in my mind, I believe it’s society also makes a significant
distinction between those that [sic]
need the help and those that [sic]
are pushing it off on others or at least making it available to others. And that’s why this case is important is
because methamphetamine, the white devil, you see how it affects people, you
see how it changed lives. [¶] Mr. Ferris, Mr. Ferris is a classic example
of how methamphetamine has dramatically impacted his life over the course of a
35-year addiction, multiple commitments to prison, chicken and the egg, in my
opinion, I don’t know whether it is commitments to prison the felony
convictions or that conduct begets meth use or the meth use begets the criminal
behavior, who knows, that’s a whole other discussion, but that’s why this case
is important because the sale of methamphetamine is affecting people for life.”

Defendant
asserts the references to defendant’s using methamphetamine while she was
carrying a child and to methamphetamine as the “white devil” constituted
prejudicial misconduct.

There was
no objection to the alleged misconduct
at trial. “As a general rule a defendant
may not complain on appeal of prosecutorial misconduct unless in a timely
fashion--and on the same ground--the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the impropriety. [Citation.]”
(People v. Samayoa (1997)
15 Cal.4th 795, 841.) We are
obliged to grant relief from a forfeiture only where objections or admonitions
would have been futile or the misconduct’s nature was incurable, which a
defendant must establish affirmatively rather than through a “ritual
incantation.” (People v. Panah (2005) 35 Cal.4th 395, 462.)

Defendant
claims her contention is not forfeited because the alleged misconduct is so
prejudicial it could not be cured with an admonition. In support of her contention, defendant
argues that the alleged misconduct must be considered in light of a “record . .
. replete with instances of the prosecutor straddling the line of misconduct,”
such as portraying codefendant “Ferris as a long-time, drug-dealing loser, and
appellant as his drug-using baby mamma,” and the interrogating officers’
efforts “to get Ferris to admit that [defendant] sold drugs for him.”

Defendant
does not support her contentions regarding “the prosecutor straddling the line
of misconduct” with citations to the appellate record. As such, they are forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B),
(C) [requiring any reference to a matter in the trial court to be supported by
a citation to the appellate record]; Miller
v. Superior Court (2002) 101 Cal.App.4th 728, 743 [lack of adequate
citation to the record forfeits the claim of error].)

The
contentions are also without consequence.
The alleged misconduct referred to facts already admitted at trial (defendant’s
drug use during her pregnancy), or common knowledge (methamphetamine is a very
dangerous drug). Even if the oral
argument was in fact misconduct, defendant has not met her burden of showing
that it was so egregious as to be incurable by admonition. Accordingly, we conclude her contention is
forfeited.

III

>Substantial Evidence Supports The
Obstructing A Peace Officer Conviction

Defendant
contends there is insufficient evidence to sustain her conviction for
obstructing a peace officer. She is wrong.

The jury
convicted defendant of Penal Code section 148, subdivision (a), obstructing an
officer. The elements are as
follows: “ ‘(1) the defendant willfully
resisted, delayed, or obstructed a peace officer, (2) when the officer was
engaged in the performance of his or her duties, and (3) the defendant knew or
reasonably should have known that the other person was a peace officer engaged
in the performance of his or her duties.
[Citations].’ ” (>In re Muhammed C. (2002)
95 Cal.App.4th 1325, 1329.)

Defendant
claims “[n]o evidence was presented as to how long [she] was in the closet or
if she became aware that law enforcement officers were present.” From this, she concludes “the record does not
contain substantial evidence that [she] knew or reasonably should have known
that peace officers were present.”

Ferris told
police officers that defendant was in bed with him when he heard the officers
arrive, he saw the officers on the video monitor, and defendant left
immediately after the officers’ arrival.
In addition, there was evidence that the officers identified themselves
as officers when they knocked on the door, and that the SWAT vehicle could be seen on the monitor in defendant’s
and Ferris’ bedroom. From these facts, a
jury could reasonably conclude that defendant knew the police were executing a
raid on the residence, and she accordingly attempted to hide from them in the
closet.

DISPOSITION

The
judgment is affirmed.







ROBIE , Acting P. J.







We concur:







MAURO
, J.







DUARTE , J.