P. v. Kaufmann
Filed 2/25/13 P. v. Kaufmann CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MAIK KAUFMANN,
Defendant and Appellant.
B239026
(Los Angeles
County
Super. Ct.
No. MA053422)
APPEAL from
an order of the Superior Court of the County
of Los
Angeles, Charles A. Chung, Judge. Affirmed but remanded with instructions.
Carol S.
Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Chung L. Mar and Zee
Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
Following trial, a jury found defendant and appellant
Maik Kaufmann (defendant) guilty of possession
for sale of a controlled substance and maintaining a place for the sale or
use of a controlled substance. On
appeal, defendant contends that the trial court abused its discretion when it
allowed testimony concerning a text message.
Defendant also contends that he received ineffective assistance of
counsel because his trial counsel failed to request limiting instructions as to
evidence admitted against a codefendant who pleaded no contest prior to the
close of evidence. And defendant argues
that the trial court incorrectly instructed the jury as to the elements of one
of the charged crimes. In a supplemental
brief, defendant maintains that he is entitled to additional conduct credits
and that the abstract of judgment should be corrected to reflect his aggregate
sentence pursuant to California Rules of Court, rule 4.452.
Given the
strength of the evidence in support of the findings of guilt on the two charged
crimes, we hold that defendant has failed to demonstrate that he was prejudiced
by any of the three claimed errors on appeal.
We further hold that defendant is entitled to the additional custody
credits he claims and that the abstract of judgment should be corrected to
reflect accurately his conduct credits and aggregate sentence. We therefore affirm the judgment of
conviction, but remand with instructions to correct the abstract of judgment to
reflect the additional conduct credits to which defendant is entitled and to
reflect defendant’s aggregate sentence.
On May 13, 2011,
Los Angeles County Deputy Sheriff Russell Deloof made a traffic stop and
arrested Billy Cassanoleimkuhler for, inter alia, possession for sale of
methamphetamine. He told the deputy
where he bought the drugs and from whom he bought them.
On May 20, 2011, Deputy Deloof stopped defendant’s
vehicle. During the stop, defendant told
the deputy that he lived in a pink trailer close to Division
Street.
On June 26, 2011, Deputy Deloof made a traffic stop at Division
Street and Avenue E in Lancaster. He arrested the suspect, David Knickerbocker,
for possession of methamphetamine. When
Deputy Deloof asked Knickerbocker where he had purchased the methamphetamine, Knickerbocker
told him that he purchased it from Mike and Bob who lived in a pink trailer
located in a trailer park at Division Street
and Avenue F-4.
title="">[1]
Based on
the information Deputy Deloof learned during the three traffic stops, he
obtained a search warrant for trailer 21 located at 47455 Division Street. On July
12, 2011, at approximately 5:30 a.m.,
Los Angeles County Sheriff’s Deputy Mark Madrid was part of the entry team that
executed the search warrant at the trailer park located at 47455
Division Street, trailer 21. The team had seven members and three or four
additional deputies contained the perimeter at the location. Deputy Deloof was not part of the entry team. Deputy Madrid
was the first member of the team to enter the trailer. He entered through a sliding glass door into
the living room area. Defendant and two
females were in the living room sitting on an L-shaped couch. The three occupants were ordered down on the
floor. Defendant took a position on the
floor near where a package of methamphetamine was later recovered.
According
to Deputy Deloof, defendant and the two females were removed from the trailer
and detained in patrol cars. In one of
the female’s pockets, deputies recovered a clear plastic baggie containing
methamphetamine, and underneath the front of the couch they recovered another
baggie containing methamphetamine.
name="_ftnref2" title="">[2] On a table in front of the couches, deputies
recovered several items: a glass tray
with a white powdery substance on it; $306 in small denomination U.S. currency;
two electronic digital scales next to the glass tray; “pay owe†sheets with
names and dollar amounts written on them; defendant’s wallet with his picture
identification; four larger baggies filled with smaller individual baggies; and
three cell phones on the table and one on the floor between the couch and
table.
One of the
four cell phones recovered had a text message from codefendant Nick McMullen
that read, “Cops are here raiding Cowboy’s.â€
executed the search warrant at defendant’s trailer.
The
deputies also observed surveillance equipment comprised of two monitors in the
living room, one of which was showing a live feed depicting the southern
entrance of the trailer park and the dirt road that led to the entrance of
defendant’s trailer. On the outside of
the trailer, deputies located a small camera pointed in the direction of the
southern entrance. Based on the items
found in trailer 21, the deputies arrested defendant and the two females.
Based on
his training and experience in narcotics
investigations involving the sale of methamphetamine, Deputy Madrid
was asked a series of hypothetical questions based on the searches of defendant’s
trailer and McMullen’s trailer, and gave the following opinions. According to Deputy Madrid,
1.78 grams of methamphetamine—the amount recovered from under defendant’s
couch—was a usable amount that would yield between 30 and 90 uses depending on
dosage. He also opined that .48
grams—the amount found in one of the female’s pockets—and .14 grams—the amount
found in McMullen’s trailer—were usable amounts. He explained that it was common for someone
to both use and sell methamphetamine.
In Deputy
Madrid’s opinion, based on the persons located in the trailer in the
hypothetical and the items recovered from that location, including the glass
tray with residue on it, the scales, the baggies, the cash, the “pay oweâ€
sheets, the four cell phones, and the surveillance equipment, the
methamphetamine recovered from the trailer in the hypothetical based on the
search of defendant’s trailer was possessed for sale.
According
to Deputy Madrid, dealers sometimes invite their customers to buy and use
methamphetamine at the location of the sale.
Sellers of methamphetamine who also use it do not cut the
methamphetamine that they use; they only cut the methamphetamine they sell to
their customers.
Deputy
Madrid explained that dealers sometimes use females as “runners†because if
they are detained by male officers while in possession of methamphetamine, they
would not be as thoroughly searched as a male due to concerns about any
appearance of impropriety. For that
reason, dealers often have females conceal methamphetamine on their person.
Based on
the same hypothetical facts and circumstances that caused Deputy Madrid to
conclude that the methamphetamine found in the trailer was possessed for sale,
he also concluded that the trailer in the hypothetical based on the search of
defendant’s trailer was being used for the sale or use of methamphetamine.
In an information, the Los Angeles County District
Attorney charged defendant in count 1 with possession for sale of a controlled
substance in violation of Health and Safety Code section 11378 and in count 2
with maintaining a place for selling or using a controlled substance in
violation of Health and Safety Code section 11366.
Following
trial, the jury found defendant guilty on counts 1 and 2. The trial court sentenced defendant on count
1 to eight months to run consecutive to a three-year term on a probation
violation in case number MA047055, for an aggregate sentence of three years,
eight months.
title="">[7] The trial court also imposed a concurrent
two-year term on count 2 but stayed that sentence pursuant to Penal Code
section 654. The trial court awarded
defendant a total of 267 days of presentence custody credit comprised of 179
days actual custody credit and 88 days of conduct credit.
A. Admission of Text Message
Defendant contends that the trial court committed
prejudicial error when it admitted testimony about the text message from
codefendant McMullen advising that the police were searching “Cowboy’sâ€
trailer. According to defendant, because
the owner of the cell phone on which the message was found was not identified,
the coconspirator exception to the hearsay rule did not apply and the message
was not relevant to defendant’s consciousness of guilt.
Assuming,
arguendo, that defendant is correct and the text message should not have been
admitted, defendant failed to demonstrate that such error was prejudicial. (Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman)
[error will be deemed harmless if reviewing court can conclude beyond a
reasonable doubt that a rational jury would have found defendant guilty absent
the error]; People v. Watson (1956)
46 Cal.2d 818, 836 (Watson); and
610, 665.) At best, the text message
supported an inference that McMullen was trying to warn someone in defendant’s
trailer that police had arrived and were searching another trailer. From that inference, the jury arguably could
have concluded that McMullen was aware of the sale and use of methamphetamine
in defendant’s trailer. But even without
the message, the other evidence of the sale and use of methamphetamine in
defendant’s trailer was strong and compelling.
The baggie under the couch contained 1.78 grams, substantially more than
would be possessed for personal use. On
the table near the couches where defendant and the two females were sitting,
deputies recovered a glass tray with powdery residue, two scales, four large
baggies each containing unused individual baggies, cash, and “pay oweâ€
sheets. One of the two females had a
baggie of methamphetamine in her pocket and there was a surveillance monitor
displaying a live feed of the southern entrance to the trailer park. And, all of this evidence was found in
defendant’s trailer based on a search warrant that had issued because two men
arrested for methamphetamine possession told police they bought it from
defendant at his trailer.
In light of
all the other evidence in support of the two charged crimes, the text message
was, at best, cumulative and unnecessary, such that even if it had been
excluded, a rational jury would have found defendant guilty of the charged
crimes.
Admissible Only as to Codefendant
In his opening brief,
that he received ineffective assistance of counsel because his trial counsel
failed to request limiting instructions concerning the use of the evidence
against codefendant McMullen once he pled no contest and was no longer a part
of the trial. Defendant’s ineffective
assistance contention implicitly concedes that his trial counsel was under an
affirmative duty to request the limiting instructions in issue, but failed to
do so. That concession, in turn, raises
an issue as to whether defendant forfeited the issue by failing to raise it in
the trial court.
But even
assuming, without deciding, that defendant did not forfeit that issue, he again
has failed to show that he was prejudiced by his trial counsel’s failure to
request the limiting instructions. (
836.) As discussed above, the evidence
of defendant’s guilt on the two charged crimes was strong and compelling. Thus, the additional evidence concerning the
search of McMullen’s trailer—which, at best, supported an inference that more
than one trailer in the park was being used for methamphetamine sales—was weak
on the issue of defendant’s guilt and cumulative in any event. Therefore, even if the jury had been instructed
to disregard the evidence relevant only to the charges against McMullen, a
rational jury would nevertheless have concluded that defendant was guilty of
the two charged crimes.
C. Instructional
Error
Defendant also argues that the
trial court incorrectly instructed the jury on the elements of count
2—maintaining a place for the sale or use of a controlled substance. Citing People
v. Franco (2009) 180 Cal.App.4th 713, 718-719, defendant argues that the
instruction on count 2, a 2003 version of CALJIC 12.08, did not inform the jury
that in order to commit the crime charged in count 2, the defendant must allow
others to use the controlled substance because it is not a violation of Health
and Safety Code section 11366 for the defendant to use the substance himself.
The
Attorney General agrees that the trial court incorrectly instructed the jury
with CALJIC 12.08, but argues that the erroneous instruction was not
prejudicial. We agree.
An instructional error that
improperly omits an element of an offense, or that raises an improper presumption,
is subject to harmless error analysis. (
502-503.) As noted, the error will be
deemed harmless if the reviewing court can conclude beyond a reasonable doubt
that a rational jury would have found defendant guilty absent the error. (Chapman,
supra, 386 U.S. at p. 24; see Watson,
supra, 46 Cal.2d at p. 836 [California harmless error standard—reasonable
probability test].)
Here, based
on the items recovered from defendant’s trailer, the expert concluded that the
male in the hypothetical possessed the methamphetamine found in his trailer for
sale, not simply for personal use.
Similarly, based on the same evidence, including that one of the two
females found in the trailer with the male in the hypothetical had methamphetamine
on her person and both women did not live in the male’s trailer, the expert
concluded that the male in the hypothetical was providing his trailer to the
two women as a place to use or sell methamphetamine. Because the hypothetical questions were based
on the items recovered from defendant’s trailer, the expert’s opinions
supported a reasonable inference that defendant was guilty of the charged
crimes. Given the strength of the
evidence, it is clear that a rational jury would have found defendant guilty on
count 2 even if the jury had been correctly instructed on the elements of count
2.
D. Custody
Credits
Defendant
contends in his supplemental brief
that under the Penal Code section 2933 as of the time of the offense—July 11,
2011—and section 4019 as of the time he was sentenced—January 6, 2012—he was
entitled to two days of conduct credit for every two days spent in actual
custody. Under this formula for
calculating his conduct credits, defendant contends that he was entitled to 178
days of conduct credit, based on the 179 days of actual custody credit awarded
by the trial court. Because the trial
court awarded defendant only 88 days of conduct credit, defendant argues that
he was entitled to 90 additional days of conduct credit. The Attorney General agrees with defendant.
Based on
our review of the parties’ briefs and applicable law, we agree that defendant
was entitled to an additional award of 90 days of conduct credit, for a total
award of conduct credit of 178 days.
Accordingly, the abstract of judgment must be corrected to reflect this
award.
The judgment of conviction is affirmed, but the matter is
remanded to the trial court with instructions to amend the abstract of judgment
to reflect that defendant was sentenced on the probation violation to a term of
three years and in this case to a consecutive term of eight months, for an
aggregate term of three years, eight months and to reflect that he was awarded
178 days of conduct credit, in addition to the 179 days of actual custody
credit, for a total award of 357 days of custody credit.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK,
J.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER,
J.
testified at trial and denied telling Deputy Deloof where he purchased the
methamphetamine and who sold it to him.
criminalist testified, inter alia, that both baggies contained methamphetamine.
