P. v. Olguin

Filed 3/5/08 P. v. Olguin CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Affirmed.

________

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

_________

Jaime Olguin appeals from his conviction of theft of access cards, forgery, transportation and possession of a controlled substance (methamphetamine), and burglary. Olguin contends the evidence was insufficient to establish that he possessed or transported the methamphetamine, blank checks, and access cards that police found in the car Olguin was driving. He also maintains the trial court erred by denying his motion pursuant to Penal Code section 1538.5, subdivision (a)(1)^[1] to suppress the evidence found in the car. He further contends that Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 220, which the trial court used to instruct the jury on reasonable doubt, is constitutionally deficient. We disagree with all three contentions and affirm.

BACKGROUND

On February 20, 2006, Jeffrey Shaffer was at home in his apartment in Van Nuys along with his roommate and the roommates girlfriend, who were in the roommates bedroom playing video games. Hearing a knock at the front door, Shaffer opened the door and saw Olguin, who was armed with a pistol, along with Keith Kirby and an unidentified third man who was armed with a knife. Olguin pointed the pistol at Shaffers head, pushed him backward into his apartment, and pressed the pistol to Shaffers forehead. The third man held the knife to Shaffers throat while emptying Shaffers pockets. He took Shaffers keys and wallet, which contained Shaffers drivers license and credit cards. Shaffer urged the intruders not to bother his roommate, and they did not. Kirby asked which bedroom was Shaffers. Shaffer indicated which one and then heard someone rifling through the drawers in his bedroom. Still holding the gun to Shaffers head, Olguin then told Shaffer to go down the hallway to his bedroom. The intruders asked whether there were any valuables. The knife-wielding third intruder demanded the keys to Shaffers gun safe, which Shaffer provided. The third intruder took the ammunition from the safe and put it in Shaffers backpack, which Kirby put on his shoulder while the third intruder removed the guns from the safe. Kirby looked through Shaffers tax and bank statements, saying he was looking for a social security number or credit card number. The intruders took Shaffers watch and checkbook along with his documents, his car key, his medical marijuana, his state-issued scale for weighing medical marijuana, and his medical marijuana license, along with a navy blue nylon bag that Shaffer used for carrying money at his job. As they left the apartment, Olguin pointed the gun at Shaffer and warned, If you call the police, Im going to come back and kill you.

Shaffer waited ten minutes, then called 911 to report the robbery and called his credit card companies to cancel the stolen cards. He described the intruder with the gun to police as being Hispanic, tall and slender, with tattoos on his forearms. Shaffer provided no detail on what the tattoos looked like.

Four days later, on February 24, 2006, Officers Sawada and Dunn were on patrol in an area known for gang and narcotics activity. They saw a grey Dodge Stratus tailgating the car in front of it, in violation of Vehicle Code section 21703. They stopped the car and found Olguin driving and Kirby in the front passenger seat. Olguin said he had no drivers license. A police dispatch indicated that both men had outstanding arrest warrants. The officers ordered Olguin and Kirby out of the car. Two additional officers, Officers Clymer and Leone, arrived at the scene. Officer Leone searched the Stratus and found a large baggie of methamphetamine in the center glove box, a scale in the drivers door pocket, a baggie of marijuana and a narcotics pipe with methamphetamine residue on the back seat, and, under the front passenger floorboard, a navy blue nylon bag containing credit cards, identification cards, a motel receipt listing Kirbys name, and Shaffers watch, blank checks and checkbook, car key, and medical marijuana license. The officers arrested Olguin and Kirby. Officer Dunn searched Kirby and found two small baggies of methamphetamine in his shoe.

About a week after the robbery at Shaffers apartment, Shaffer identified both Olguin and Kirby in photo lineups. When shown a lineup that included Kirby, Shaffer pointed to the picture and said, Thats Keith. Shaffer then told the detective that he had called the number of his stolen cell phone the morning after the robbery and heard a message saying, This is Keith. You can reach me at my new number 554-7723. Shaffer recognized Kirbys distinctive, raspy voice. Shaffer said he had met Kirby six to eight weeks before the robbery when Kirby came by Shaffers apartment to pick up a woman they both knew and spent about fifteen minutes inside the apartment. Shaffer also knew where Kirby lived and occasionally drove by his house. Asked why he had not told this to police on the evening of the robbery, Shaffer said he was in shock and mostly paid attention to the male Hispanic pointing the gun at his head. Kirbys identity did not register in his mind until he called his cell phone.

On July 17, 2006, the Los Angeles County District Attorney filed a 9-count information charging Olguin and Kirby with robbery ( 211), burglary ( 459), false imprisonment ( 236), grand theft firearm ( 487, subd. (d)(2)), dissuading a witness from reporting a crime ( 136.1, subd. (b)(1)), theft of access cards or account information ( 484e, subd. (d)), forgery ( 475, subd. (b)), transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)), and possession of a controlled substance for sale (Health & Saf. Code, 11378.) As to the first five counts, the information further alleged that Olguin was armed with a firearm under section 12022, subdivision (a)(1), and personally used a firearm within the meaning of sections 1203.6, subdivision (a)(1) and 12022.5, subdivision (a), making the offenses serious felonies pursuant to section 1192.7, subdivision (c)(8) and violent felonies under section 667.5, subdivision (c)(8). Regarding count 2 for burglary, the information alleged the offense was a serious felony under section 1192.7, subdivision (c), was not suitable for probation under section 462, subdivision (a), and was a violent felony under section 667.5, subdivision (c)(21), in that another person, other than an accomplice, was present in the residence during the commission of the . . . offense. The information also alleged that Olguin had suffered prior convictions, served a prison term as described in section 667.5, and reoffended within five years. Olguin pleaded not guilty to all counts.

Olguin and Kirbys joint trial began on January 30, 2007. The prosecutor presented testimony from Shaffer and Officers Sawada, Leone, and Clymer. Shaffer recounted the events on the night of the robbery, described from memory the tattoos on Olguins arms, including one particular tattoo of a woman, and identified that tattoo when the court asked Olguin to show his forearms. Shaffer also identified his watch, checkbook, medical marijuana license, car key, and navy blue nylon bag from police photographs of items that police found in the car. Shaffer described his scale as black and about four-by-three in size. Although the prosecutor did not offer a photograph of the scale in evidence, Officer Leone, who searched the car, later described the scale he found in the drivers door pocket as black and about three inches by four or five[.]

Officer Clymer described his experience with investigating methamphetamine trafficking and offered his opinion that the methamphetamine found in the car with Olguin and Kirby was possessed for sale. During his testimony, Clymer revealed that there was a supplement to the police report that neither the prosecution nor the defense had seen, which concerned police monitoring of a nearby location for gang and narcotics activity on the night Olguin and Kirby were stopped. Out of the jurys presence, the court conducted a hearing regarding any connection between the stop of Olguin and Kirby and the stakeout. Officer Clymer testified that Olguin and Kirby were seen leaving the stakeout location before the police executed a search warrant there. Olguins counsel asked, Mr. Olguins car was pulled over because of the surveillance, correct? Clymer answered, Part of it, yes. It was yes. Defense counsel then requested permission to file a motion to suppress the newly revealed evidence pursuant to section 1538.5, and the court granted the request. The court instructed counsel and Officer Clymer to avoid any further mention of the stakeout in front of the jury. After the conclusion of Clymers testimony, the defense presented testimony from the officer who interviewed Shaffer on the night of the robbery, Shaffers roommate, and Kirbys father. Shaffers roommate testified that Shaffer was using a white powdery drug smoked in a glass pipe around the time the robbery occurred.

The following Monday, February 5, 2007, the court held a hearing on the defendants section 1538.5 motion. Officer Sawada, who conducted the traffic stop of Olguin and Kirby, testified that he stopped the car for a traffic violationtailgating. On cross-examination, Sawada acknowledged that he and his partner were on gang duty, not traffic patrol, and had received a one-way radio transmission from the stakeout location giving a description of Olguin and Kirbys car, although Sawada and his partner received no instruction to stop or follow the car and did not communicate with the police at the stakeout. When Sawada saw the car, it was only twelve feet behind the car in front of it while traveling at a speed of 35 to 40 miles per hour, and the officers followed it for five or six hundred feet before stopping it. At the section 1538.5 hearing, defendant Kirby also testified that he had rented the car and had given no one permission to search it. After hearing argument from counsel, the court denied the motion, finding that this is a case on all fours with [Whren v. United States (1996) 517 U.S. 806.] The court explained, It seems to me it would have to be a coincidence for the officer to stop this vehicle which was also being surveilled leaving a location that was surveilled. [] So it seems to me reasonable that either monitoring radio traffic or instructions from the surveillance location said that this Dodge Stratus had left a location, and then the police officer stopped it for a traffic violation. The court continued, however, [E]ven if that was a pretextual stop, that is a legal stop under our rules of search and seizure[.]

Trial resumed. Neither counsel objected to any of the jury instructions, which included CALCRIM No. 220 on reasonable doubt and CALCRIM No. 222 on evidence, among others. The jury found Olguin not guilty on counts one, three, four, and five, found him guilty of counts six through eight (theft, forgery, and transportation of a controlled substance), found him guilty of the lesser included offense of possession of a controlled substance in violation of section 11377, subdivision (a), on count nine, and deadlocked on count two, burglary. The court declared a mistrial as to count two.

On the date of sentencing, Olguin pleaded guilty to the burglary charge, and the court dismissed the prior prison allegations. The court sentenced Olguin to the middle term of four years in state prison for count two and to concurrent sentences of two years each for counts six and seven and three years for count eight, and imposed but stayed the sentence for count nine pursuant to section 654. The court gave Olguin credit for 597 days in custody and imposed various mandatory fines and fees. Olguin timely appealed.

DISCUSSION

I. Sufficiency of the Evidence

Olguins only evidentiary contention is that the evidence was insufficient to establish that he possessed or transported the methamphetamine, access cards, and blank checks the police found in the car he was driving when he and Kirby were pulled over. We disagree.

The elements of possession of a controlled substance include (1) a specific controlled substance, in a sufficient quantity and in a usable form; (2) possession, which may be actual or constructive, exclusive or joint; and (3) knowledge of the fact of possession and of the illegal character of the substance. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) 82, p. 592; CALCRIM No. 2302.) Each of these elements may be proved by circumstantial evidence and any reasonable inferences drawn therefrom. (People v. Tripp (2007) 151 Cal.App.4th 951, 956.) The elements of transportation of a controlled substance are the same as those for possession if the term transportation replaces possession. (People v. Ormiston (2003) 105 Cal.App.4th 676, 682; CALCRIM No. 2300.) Possession is also an element of both theft of access cards or account information ( 484e) and forgery. ( 475.) 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.) Similarly, a defendant may be liable for constructive transportation of a controlled substance. [Citation.] (Ibid.) We review for substantial evidence, presuming in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence, and if the circumstances reasonably justify the trier of facts findings as to each element of the charged offense, we must affirm even if the circumstances and evidence would support a contrary finding. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn therefrom. (Ibid.)

Olguin was the driver of a car in which police found a large quantity of methamphetamine, a baggie of marijuana, a narcotics pipe with methamphetamine residue, a scale similar to the one taken from Shaffer, credit cards, identification cards, and Shaffers blank checks. The cards and checks were found together with Shaffers medical marijuana license and watch in Shaffers navy blue nylon bag. Shaffer identified Olguin as the intruder who held a gun to his head on the night of the robbery, and recognized Olguins tattoos in court. Shaffer also identified Kirby as another intruder that night. Thus the evidence showed that both Olguin and Kirby were present and acting in concert when marijuana, a scale, access cards, and blank checks were stolen from Shaffers apartment.^[2] Only four days after this joint criminal activity, the police found Olguin and Kirby together again, with Olguin driving a car carrying contraband associated with the robbery at Shaffers apartment. Based upon this circumstantial evidence, a jury could reasonably infer that Olguin and Kirbys joint course of criminal conduct on the night of the robbery continued on the night they were stopped by police, and that the joint venturers shared possession of the contraband in the car. Accordingly, we conclude that a reasonable trier of fact could find beyond a reasonable doubt that Olguin knew of and had constructive possession of the access cards, blank checks, methamphetamine and marijuana, and was aware of the illegal character of the marijuana and methamphetamine he and Kirby were transporting.^[3]

Olguin cites authority holding that [i]t is well established that the mere presence of the accused with others in a vehicle in which contraband is found or from which it is thrown is not sufficient evidence, standing alone, to justify conviction of possession. (In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330-331 [italics added].) That, however, is not the case here, where there is ample circumstantial evidence linking Olguin to the items found in the car. Thus the various authorities Olguin cites, including federal cases, which concern situations in which there was nothing beyond mere presence in a car or other premises to link defendants to contraband found in or thrown from the car or other premises, are all inapposite. (See ibid. at pp. 328-331; People v. Johnson (1984) 158 Cal.App.3d 850, 852-856; People v. Crandall (1969) 275 Cal.App.2d 609, 610-611; People v. Foster (1953) 115 Cal.App.2d 866, 868; United States v. Weaver (9th Cir. 1979) 594 F.2d 1272, 1273-1274; United States v. Soto (9th Cir. 1986) 779 F.2d 558, 560-561; United States v. Ramirez (9th Cir. 1989) 880 F.2d 236, 238; Delgado v. United States (9th Cir. 1964) 327 F.2d 641, 641-642; United States v. Kelso (9th Cir. 1991) 942 F.2d 680, 682.)

II. Motion to Suppress

Olguin contends the evidence seized from the car must be suppressed because the police lacked probable cause to conduct a traffic stop. We disagree.

The federal Constitutions Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. (People v. Celis (2004) 33 Cal.4th 667, 673, 676.) When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial courts factual findings, upholding them if they are supported by substantial evidence, but we then independently review the courts determination that the search did not violate the Fourth Amendment. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 465.) Noting that [a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred (Whren v. United States (1996) 517 U.S. 806, 810 (Whren)), the United States Supreme Court has held that the constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers conducting a stop. (Id. at p. 813; see also People v. Woods (1999) 21 Cal.4th 668, 679-680 [extending the holding in Whren].) In short, considering pretextual police-citizen encounters in the context of criminal law violations[,] pretext is clearly permissible[,] and [s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. (People v. Valenzuela (1999) 74 Cal.App.4th 1202, 1207, quoting Whren, supra, at p. 813.)

Olguin contends the officers stop of him and Kirby was pretextual, and that Officer Clymer confirmed that the traffic violation was a ruse. Whether or not the tailgating violation was a pretext for pulling Olguin and Kirby over when officers really had other motives, however, is immaterial under Whren if the officers actually observed the alleged tailgating violation that provided probable cause for a traffic stop. Officer Sawadas testimony at the hearing on the motion to suppress evidence provides substantial evidence that he observed the tailgating violation, and no evidence contradicted this testimony. Accordingly, we must defer to the trial courts factual finding that there was probable cause for a traffic stop. (See People v. Panah, supra, 35 Cal.4th at p. 465.)

Olguin invokes People v. Rodriguez (2006) 143 Cal.App.4th 1137 (Rodriguez), but the case does not aid him. In Rodriguez, another division of our appellate district reversed and remanded for a further evidentiary hearing to determine whether the alleged basis for the stop in that casea nonfunctioning taillightwas entirely fabricated. (Id. at pp. 1141, 1148-1149.) Here, the evidence does not indicate wholesale fabrication of probable cause. We agree with Olguin that if the tailgaiting testimony had been fabricated, Rodriguez would require us to reverse, but the record does not support the inference that the testimony was false. Olguin, however, argues that the trial courts statement that the traffic stop was too much of a coincidence for it not to have been motivated by ulterior motives beyond the traffic violation itself, is equivalent to the court finding that the testimony was fabricated. We disagree. The court did not find or even suggest that the officers did not observe actual tailgating or that they fabricated the basis for the traffic stop. Rather, the trial courts implied finding was that the testimony regarding the tailgating was truthful, although the court questioned their actual motives for the stop.

III. CALCRIM No. 220

Olguin contends that CALCRIM No. 220s instruction on reasonable doubt is constitutionally deficient because it requires the jury to base reasonable doubt only on evidence presented, not on lack of evidence. We review de novo whether instructions correctly state the law (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1) and whether an instruction improperly directs a finding adverse to a defendant by removing an issue from the jurys consideration. (People v. Leonard (2000) 78 Cal.App.4th 776, 794.)

Preliminarily, we note that Olguin did not object to or seek clarification of the reasonable doubt instruction in the trial court. A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial. [Citation.] (People v. Cleveland (2004) 32 Cal.4th 704, 750.) In any event, we conclude that the instruction was not deficient.

The language in CALCRIM No. 220 that Olguin challenges reads, In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.^[4] The instruction tells the jury to consider all the evidence in the trial and acquit if that evidence does not prove the defendants guilty beyond a reasonable doubt. There is no need to mention a lack of evidence in the instruction. The only reasonable understanding of the language, [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty, is that a lack of evidence could lead to reasonable doubt. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238; see also People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509.) The authorities Olguin cites do not compel any different conclusion. (See Cage v. Louisiana (1990) 498 U.S. 39, 40-41; People v. Simpson (1954) 43 Cal.2d 553, 565-566; People v. McCullough (1979) 100 Cal.App.3d 169, 182 [court erroneously explained to jury that reasonable doubt must arise from the evidence]; People v. Garcia (1975) 54 Cal.App.3d 61, 68; People v. Campos, supra, 156 Cal.App.4th at p. 1238 [distinguishing Simpson and McCullough].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P. J. JACKSON, J.^*

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^[1] All undesignated statutory references are to the Penal Code.

^[2] Although Olguin points out that the jury acquitted him of robbery, that does not, as he seems to suggest, indicate that the jury found that he was not present or not engaged in some sort of joint criminal course of conduct with Kirby and the third intruder on the night Shaffers property was stolen, so that the jury could not reasonably infer that he was aware of what was taken and shared possession of it at the time the stolen property was found. To the extent Olguins acquittal of robbery and the jurys hung verdict on burglary could be seen as inconsistent with a finding that Olguin knowingly possessed and transported contraband stolen from Shaffers apartment, The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding through mistake, compromise, or lenity[.] [Citation.] (People v. Santamaria (1994) 8 Cal.4th 903, 911.) [I]t is impossible to know exactly why a jury found a defendant not guilty on a certain charge. (United States v. Watts (1997) 519 U.S. 148, 155.)

^[3] Although Olguin argues that Kirby rented the car and there was no indication as to how long appellant had been driving the vehicle[,] driving a car in itself shows a measure of dominion and control over the car and its contents, especially when combined with the other circumstantial evidence in this case. (See People v. Land (1994) 30 Cal.App.4th 220, 223-224, fn. 2.)

^[4] CALCRIM No. 220, as the trial court instructed the jury, reads in full, The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)