P. v. McClain
Filed 3/26/13 P. v. McClain CA2/6
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opinion has not been certified for publication or ordered published for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
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
GERALD M. McCLAIN,
Defendant and Appellant.
2d
Crim. No. B240332
(Super.
Ct. No. 2011019949)
(Ventura
County)
Gerald M. McClain was
granted probation with 270 days in the county jail after a jury convicted him
of possession of a firearm and ammunition
by a felon (Pen. Code §§ 12021, subd. (a)(1)); 12316, subd. (b)(1), and
psilocybin. (Health & Saf. Code,
§ 11377, subd. (a)). He appeals,
contending that evidence of prior drug use was erroneously admitted to show
knowledge of the narcotic nature of the drugs seized. We affirm.
Facts and Procedural History
On June 2, 2011, Ventura Police Officers Miguel
Martinez and Anthony Snow were dispatched to 77 West
Barnett Street on a disturbance call. Officer Snow was familiar with the house and
its owner, appellant. Months earlier,
Officer Snow helped a code enforcement officer "yellow-tag" the main
house because it was uninhabitable.
During the house inspection, appellant threw himself on the ground and
yelled "just shoot me." After
appellant calmed down, he said that he would stay in the small guesthouse at
the rear of the main house.
When Officers Martinez
and Snow responded to the June 2, 2011 disturbance call, the front door to the main
house was ajar. The house was unoccupied
and cluttered. As the officers
approached the small guesthouse, they heard a loud television and movement. The officers knocked three times and opened
the screen door to see if anyone was hurt or needed assistance. Appellant was hiding behind the bedroom door,
reluctantly came out, and said that he lived there.
Appellant stood outside
as the officers conducted a protective sweep.
A holstered handgun was in plain view on the couch and appellant's wallet and mail were on a
coffee table in front of the couch.
Knowing that appellant
was a convicted felon, the officers searched for weapons and found two rifles
and a loaded Ruger revolver. The
revolver had four live bullets and one spent round. Empty gun holsters were on the bedroom floor
and live ammo was scattered throughout the room. In the top dresser drawer, Officer Martinez
found a tray with methamphetamine residue, two digital scales, a straw, and an
empty plastic baggie. Three plastic
baggies containing psilocybin mushrooms and pills were in a small wood
chest.
Appellant defended on
the theory that the drugs, guns, and ammo belonged to 71-year-old Denise
Burchette. Burchette said that she used
drugs, that she had been appellant's girlfriend for 17 years, and that she
lived alone in the guesthouse. On cross-examination,
Burchette admitted that she received mail at a second address on Channel
Drive in Ventura
and loved appellant enough to lie for him.
A neighbor, Robert
Silvar, testified appellant and Burchette were living in the guesthouse. Silvar had an unobstructed view of the
guesthouse and saw appellant enter the guesthouse night and day and stay inside
for long periods of time.
Prior
Drug Use
At trial, the
prosecution moved to introduce evidence that appellant was convicted of selling
and possessing methamphetamine for sale in 2000. The trial court found the prior conviction
was remote in time (Evid. Code, § 352)
but allowed Deputy Probation Office Bonique Rodriguez to testify that,
in 2010, appellant admitted snorting $20 of methamphetamine a day between the
age of 36 to 41.
title="">[1]
Appellant claims that
the trial court abused its discretion in admitting evidence of prior drug use to show knowledge of the
narcotic nature of the drugs seized. We review for abuse of discretion. (Evid. Code, § 352; People v. Memro (1995) 11 Cal.4th 786,
864.) It is settled that prior uncharged
crimes are admissible to prove a material fact such as intent, knowledge, or
the absence of mistake or accident.
(Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th
380, 402-403.)
"The elements of
the crime of possession of narcotics are physical or constructive possession
thereof coupled with knowledge of the presence of the drug and its narcotic
character. [Citations.] " (People
v. Francis (1969) 71 Cal.2d 66,
73.) Prior drug use may be admitted to
show defendant's knowledge of the narcotic nature of the contraband. (People v. Pijal (1973) 33 Cal.App.3d 682, 691; People v.
Horn (1960) 187 Cal.App.2d 68, 75.)
"It is not necessary for the defendant to raise an issue as to his
knowledge before the People can introduce such evidence. [Citation.]" (People v. Ellers (1980) 108
Cal.App.3d 943, 953.)
In People v. Spencer
(1956) 140 Cal.App.2d 97 (Spencer) defendant was tried for possession
and sale of heroin. On
cross-examination, defendant admitted that he knew what heroin was. (Id., at p. 104.) Defendant was next asked about a misdemeanor
conviction for possession of heroin. (
for impeachment purposes. Defendant
argued that the question was inflammatory.
(
conviction was not to be considered for impeachment purposes but to show "
'knowledge of the nature of the drug alleged to have been possessed by the
defendant.' " (
The Court of Appeal
reversed on the ground that the prior conviction was cumulative. (Id., at p. 104.) The jury was already told that appellant
"knew what heroin was. . . . Since
it was already clear that knowledge of the narcotic character of heroin was not
in issue there was no reason, and no justification, for the admission of this
evidence with the attendant danger of misuse by the jury despite the cautionary
instruction of the court." (
105.)
Unlike Spencer,
appellant did not testify or stipulate to the narcotic nature of the drugs
seized. (See e.g., People v.
Washington (1979) 157 Cal.App.3d 488, 492 [error to admit evidence of prior
unrelated narcotics activity to prove
knowledge, where defendant offered to stipulate he was familiar with
heroin].) Nor is this a close case in which
the jury had to weigh appellant's credibility.
(
supra, 140 Cal.App.2d at p. 105.) The not guilty plea required that the
prosecution prove every element of the changed offenses including
knowledge. (People v. Steele (2002)
27 Cal.4th 1230, 1243.) Evidence of
prior drug use was properly admitted to show knowledge of the narcotic nature
of the contraband seized. (Evid. Code,
§§ 352; 1101, subd. (b); People v. Williams (2009) 170 Cal.App.4th 587,
607.) Appellant argues that the evidence
was cumulative but such an objection "is almost always made to direct
evidence, not circumstantial. While a
trial judge might easily conclude that a third or fourth witness to the same
event or opinion would be cumulative, it is the rare occasion when one of two
different types of circumstantial evidence is correctly ruled cumulative."
(People v. Thornton (2000) 85 Cal.App.4th 44, 48.)
Appellant argues that
the prior drug use evidence was unnecessary because knowledge of the narcotic
nature of methamphetamine can be inferred from the manner in which it was
kept. The scales, straw, empty baggie,
and methamphetamine powder on the tray clearly showed that whoever possessed
the methamphetamine knew of its narcotic nature. The jury, however, had to determine appellant's
knowledge, not the knowledge of a fictitious possessor. In order to convict, it had to find that
appellant not only possessed a controlled substance but knew of its presence
and its narcotic nature. (CALCRIM
2304.)
Prosecutorial
Misconduct
Appellant complains that
the prosecution argued that, based on appellant's prior drug use, the jury
could infer that appellant knew methamphetamine was in the guesthouse.
error. (People v. Monterroso
(2004) 34 Cal.4th 743, 785-786.) Waiver
aside, a prosecutor is given wide latitude to argue his case and make fair
comment on the evidence. (People v.
Ledesma (2006) 39 Cal.4th 641, 725.)
"When contraband is found in a place to which a defendant and
others have access and over which none has exclusive control 'no sharp line can
be drawn to distinguish the congeries of facts which will and that which will
not
constitute sufficient evidence of a defendant's knowledge of the presence of a
narcotic. . . .' [Citation.]" (People v. Hutchison (1969) 71 Cal.2d
342, 345.)
Appellant argues
that he was unaware of the drugs because they were in a tiny guesthouse filled
with clutter and junk. The "clutter
defense" was rejected by the jury, and for good reason. The holstered
pistol was in plain sight on the couch, as were the rifles, ammo, and gun
holsters where appellant was hiding.
Officer Snow testified that the methamphetamine residue, empty plastic
baggies, drug scales and straw indicated "either frequent drug use or
sales." Based on 17 years of
experience, Officer Snow opined that "it is common for drugs and guns to
run together." That has been this
court's experience too. (See People
v. Collier (2008) 166 Cal.App.4th 1374, 1378 ["'Guns often accompany
drugs.'"].) It required no leap in
logic for the jury to conclude that appellant knowing and unlawfully possessed
firearms, ammunition, and narcotics.
The
judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J
Ryan J. Wright, Judge
Superior Court County of Los Angeles
______________________________
Mark R. Feeser, 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, Scott A. Taryle, Supervising Deputy
Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] After Rodriguez testified on direct, the trial
court admonished the jury: "Before
we get to cross, ladies and gentlemen, I do want to advise you about the
statement that was just provided to you.
One of the elements on one of the charges in this case is that the
prosecution needs to prove knowledge of the characteristic of the substance as
methamphetamine. That is the only area
where you're allowed to consider that statement. You're not to consider that statement . . .
for any other purpose."
name="_ftn2" title="">[2] The prosecution argued: "[H]ave I proven to you that he unlawfully
possessed a controlled substance? Yes. .
. . Did he know about it? Yes.
[¶] Let's think about this.
Of course you know [the methamphetamine] didn't just inadvertently get
there in his room and he didn't know about it especially when this is his drug
of choice. Do you think he's going to be
ignorant to the fact that there's methamphetamine and all the instrumentalities
there and not use it? Of course he knew
it was there. It was stored with
everything you need to use it. The
straw, the scale, the card. All the
empty baggies that have been previously used. [¶] Look, with this
kind of habit, ladies and gentlemen, you don't forget. You don't forget that it's there. You know that it's there. And you don't sit there and watch your
girlfriend do it for 11 years and you don't partake. That's just not reasonable. He knew the stuff was there because it was
his and he was trying to protect it. [¶] Does he know amount
methamphetamine? Does he know it is a
drug? Well, if he snorts it -- $20 every
single day, you better believe it."
