IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 2, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN TRAVIS BAKKER, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Nicholson , Acting P.J.
P. v. Bakker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super. Ct. No. 06F07899
A jury convicted defendant John Travis Bakker of using a false compartment with the intent to transport a controlled substance (Health & Saf. Code, § 11366.8, subd. (a); count one), possession of methamphetamine (id., § 11377, subd. (a); count two), transportation of methamphetamine (id., § 11379, subd. (a); count three), possession of marijuana, a misdemeanor (id., § 11357, subd. (b); count four), possession of a smoking device, a misdemeanor (id., § 11364; count five), and possession of methamphetamine for sale (id., § 11378; count six). The jury found that defendant committed count six while released from custody. (Pen. Code, § 12022.1.) In bifurcated proceedings, the court found allegations of a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)) and a prior prison term (Pen. Code, § 667.5, subd. (b)) to be true.
Sentenced to state prison, defendant appeals. He contends: (1) insufficient evidence supports his conviction for using a false compartment (count one), (2) the trial court erroneously admitted the testimony of the fingerprint expert, (3) the trial court failed to include the written instruction on expert witness testimony in the packet given to the jury, (4) the trial court prejudicially erred in instructing in the language of CALCRIM No. 375 concerning defendant's prior uncharged conduct, and (5) the trial court's failure to designate sentence on the misdemeanor counts (counts four and five) to be consecutive requires the same to be deemed concurrent and that presentence custody credit as to those counts must be awarded to the felony counts.
While the case was pending on appeal, the trial court vacated sentence on the misdemeanor counts, counts four and five, reimposed sentence, and awarded presentence custody credit, including additional credit under amendments to Penal Code section 4019 effective January 2010. We requested supplemental briefing on the trial court's action. The People respond that the trial court's action in resentencing on counts four and five was proper. Defendant claims, and we agree, that the trial court erred in part. The People claim that the trial court erroneously awarded additional credit pursuant to the amendments to Penal Code section 4019 effective January 2010. Defendant claims the trial court got the credits right. The Legislature again amended Penal Code section 4019, as well as Penal Code section 2933. We will modify the credits based on the current version of Penal Code section 2933.
We agree that insufficient evidence supports defendant's conviction for using a false compartment and will reverse count one. We reject defendant's other contentions except for his contention with respect to concurrent terms on counts four and five, with which we agree in part. We will modify the judgment and otherwise affirm.
About 10:00 a.m. on March 21, 2006, Elk Grove Police Officer Shane Glaser conducted a traffic stop on defendant's car for an unregistered license plate. Defendant was the driver and sole occupant of the car. A search of defendant's car revealed a blue OxiClean aerosol spray can on the floorboard behind the driver's seat. The can had a false bottom. Inside the can, the officer found a sunglass holder and a baggie containing 4.86 grams of marijuana. Inside the sunglass holder, the officer found a glass smoking pipe with residue and three baggies containing a total of 46.12 grams of methamphetamine. The officer found $299 in defendant's wallet.
A fingerprint of defendant's left pinkie finger was found on the glass pipe. No usable fingerprints were found on the can, license plate, baggies, or on defendant's cell phone.
On November 28, 2007, defendant and two other individuals left the residence of a parolee whom an officer planned to search. When approached by police, defendant ran, bent over and put something in the bushes, and then stood up, turned around, lit a cigarette and sat down. A search of the bushes revealed a nylon case containing a digital scale, packaging material, and two plastic baggies containing a total of 11.97 grams of methamphetamine. An officer found $193 on defendant's person.
An expert testified that the methamphetamine defendant possessed on November 28, 2007, was possessed for sale. The expert based his opinion on the amount of methamphetamine, the scale, the packaging material, and the denominations of the cash. The expert opined that containers similar to the OxiClean can found in defendant's car on March 21, 2006, are commonly used to conceal methamphetamine by sellers.
The prosecutor introduced evidence of defendant's prior conduct. On June 24, 2004, defendant was in the driver's seat of an overturned vehicle. An officer prevented defendant from giving his duffel bag, and then a nylon pouch, to a woman who arrived on the scene. The officer opened the bag and pouch and found over $3,500 in cash, two cell phones, numerous keys, 63 grams of marijuana, 56.9 grams of methamphetamine, a digital scale, numerous baggies, and two glass smoking pipes.
On behalf of defendant, Shawn Marion testified. He was defendant's lifelong friend. Marion claimed that he cleaned defendant's car in March 2006, had placed the OxiClean can in defendant's car, and that the drugs in the can belonged to him, not to defendant. Marion explained that he had taken the can from "[a] guy [who] owed [him] some money for working on his car." Marion knew the can had a false bottom and contained methamphetamine, marijuana, and the pipe. Marion stated that he smoked some of the methamphetamine, put the can in defendant's car while working on it, and got "so fucked up [he] left it in there."
Defendant first contends that insufficient evidence supports his conviction on count one, using a false compartment with the intent to transport a controlled substance. The People concede. We accept the concession.
Health & Safety Code section 11366.8 provides, in relevant part, as follows:
"(a) Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment in a county jail for a term of imprisonment not to exceed one year or in the state prison. [¶] . . . [¶]
"(d) The term 'false compartment' means any box, container, space, or enclosure that is intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle, including, but not limited to, any of the following:
"(1) False, altered, or modified fuel tanks.
"(2) Original factory equipment of a vehicle that is modified, altered, or changed.
"(3) Compartment, space, or box that is added to, or fabricated, made, or created from, existing compartments, spaces, or boxes within a vehicle."
There is no dispute that a false-bottomed OxiClean aerosol can containing controlled substances was found in defendant's car. However, the can does not fit within the three examples given for the definition of a "false compartment." The People concede that the "not limited to" language used in conjunction with the three examples suggests that the false compartment must be a modification or alteration to the vehicle or its equipment. The People quote People v. Arias (2008) 45 Cal.4th 169, at page 184, which interpreted the meaning of "'false compartment'" as used in Health and Safety Code section 11366.8, subdivision (d), to mean "'an aftermarket modification of, or alteration to, the original factory equipment of the vehicle in which illegal drugs were found.'" A loose can placed inside a vehicle is not "an aftermarket modification of, or alteration to, the original factory equipment of the vehicle in which illegal drugs were found." We will reverse count one for insufficient evidence. The trial court imposed a concurrent term for count one. The reversal of this count does not affect the total term imposed but amendment of the abstract of judgment is required.
Defendant next contends the trial court erroneously admitted the testimony of the fingerprint expert. Defendant claims the expert's testimony did not meet Kelly-Frye standards.*fn1 We reject this claim.
On direct examination, Penny Hummell testified that she worked as an identification technician for the sheriff's department, that she had been a technician for 28 years, and that her current duties required her to compare latent fingerprint impressions with inked impressions. Her training included 369 hours of one-on-one training, numerous classes with the FBI, the Department of Justice, and the International Association of Identification. She was a certified latent print examiner and had been qualified as an expert witness on fingerprint matters.
When offered as an expert, defense counsel reserved voir dire for cross-examination. The court deferred its ruling regarding its acceptance of Hummell as an expert until completion of defense counsel's voir dire during cross-examination.
Hummell compared an inked set of fingerprints belonging to defendant with a latent print taken from the glass smoking pipe found in the OxiClean can. Hummell opined that the latent print was left by defendant's left pinkie finger. In visually comparing the ridge flow and width of the ridges of the latent and the inked prints for characteristic points, Hummell found in excess of 12 matching points and no points that did not match.
Hummell testified that there is no nationwide standard as to the number of characteristic points required to support a conclusion that a latent and an inked print match. In her experience, her personal standard requires no less than eight points of comparison. She noted that other examiners she works with require at least eight. She did not know of any study that stated eight points was an incorrect benchmark. She believed that Scotland Yard had a higher standard, 16 points. She did not make notes or create a chart to reflect which points she found matched.
Arguing that Hummell's standard of eight points was her personal standard and that she did not testify there was an accepted standard, defense counsel objected to Hummell's testimony as an expert, claiming her method of testing and comparison and her results were not trustworthy and reliable enough to meet Kelly-Frye standards. In overruling defense counsel's objection to Hummell's testimony as an expert, the trial court noted that Hummell used an accepted procedure and determined that counsel's argument went to the weight, not the admissibility, of Hummell's testimony.
"In determining the admissibility of evidence derived from a new scientific technique, California courts apply the three-pronged approach approved in People v. Kelly. [Fn. omitted.] Under this approach, the courts must consider the following: first, that the method is reliable--i.e., has gained general acceptance in the relevant scientific community; second, that the witness is an expert qualified to give an opinion on the subject; and third, that the correct scientific procedures were followed in the particular case." (People v. Henderson (2003) 107 Cal.App.4th 769, 776.) "Before applying this approach, courts must make the threshold determination of whether to conduct a Kelly hearing in the first instance. '"Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or in part, on a technique, process, or theory which is new to science and, even more so, the law."'" (Henderson, supra, at p. 776.)
It bears repeating -- Kelly applies to a technique which is new. Fingerprint identification testimony is not new, having been accepted for about 100 years. (People v. Jennings (1911) 252 Ill. 534 [96 N.E. 1077] (Jennings).)
Although acknowledging that fingerprint evidence is the strongest evidence of identification (People v. Riser (1956) 47 Cal.2d 566, 589) and that the technique was approved by Jennings, supra, 96 N.E. at page 1082, defendant claims the technique has not been upheld by any California case. Defendant also complains that Hummell was unaware of any standard other than Scotland Yard's 16-point standard and failed to demonstrate how the latent print matched defendant's inked print.
We find no error. "[F]ingerprint comparison performed by fingerprint experts" is a "long-established technique" accepted in California. (People v. Farnam (2002) 28 Cal.4th 107, 160; People v. Webb (1993) 6 Cal.4th 494, 523 ["'positive' match [found] using settled law enforcement standards calling for 'eight points of similarity'"].) Hummell testified that she visually compared the ridge flow and width of the ridges of the latent print left on the glass pipe and the inked impressions belonging to defendant for characteristic points. Hummell opined that the latent print was left by defendant's left pinkie finger. In visually comparing the prints, Hummell found in excess of 12 matching points and no points that did not match. Hummell required no less than eight points for a match, noted that other examiners she works with require at least eight and did not know of any study that stated eight points was an incorrect benchmark. Although she did not make notes or create a chart to reflect which points she found matched, no evidence contradicted her testimony. Defendant's challenge to Hummell's testimony, as found by the trial court, went to the weight, not the admissibility. The trial court did not err in admitting Hummell's expert testimony on fingerprint identification.
Defendant next contends the trial court failed to include the written instruction on expert witness testimony in the packet of instructions given to the jury. He acknowledges that the court orally so instructed the jury. We conclude that any error was harmless.
A defendant's right to written instructions is not required by the state or federal Constitution but is required by state statute if expressly requested by the jury. (People v. Ochoa (2001) 26 Cal.4th 398, 446-447; People v. Samayoa (1997) 15 Cal.4th 795, 845; Pen. Code, § 1093, subd. (f).)
At the conclusion of the evidence and prior to reading the instructions to the jury, the court explained "how excruciating it is to just sit and listen" to the instructions but that jurors must pay attention. One juror asked whether the jury would receive a copy. The court replied that written instructions would be provided. The trial court instructed the jury in the language of CALCRIM No. 332, which informed the jury on how to evaluate the testimony of an expert witness.*fn2 The trial court did not include CALCRIM No. 332 in the written instructions given to the jury. The omission appears to have been inadvertent. The trial court instructed the jury orally and in writing in the language of CALCRIM No. 226, which informed the jury on how to evaluate the testimony of witnesses, and CALCRIM No. 333, which informed the jury on how to evaluate the opinion testimony of a lay witness. During the one and a half hours of deliberations, the jury did not indicate any confusion over the instructions; the jury did not ask any questions. Any error is harmless. (People v. Cooley (1993) 14 Cal.App.4th 1394, 1399-1400; People v. Blakley (1992) 6 Cal.App.4th 1019, 1023-1024.)
Defendant next contends the trial court prejudicially erred in instructing on defendant's prior uncharged conduct. (CALCRIM No. 375.) Defendant argues CALCRIM No. 375 allows the jury to convict on the underlying charges based on the other crimes evidence, which is proved by a preponderance of the evidence standard, rather than reasonable doubt, as required by due process. He further argues the preponderance standard applies to the court's determination of the admissibility of the evidence, not the jury's use in determining whether a fact is true for conviction. He also argues the court committed prejudicial error in instructing and allowing the jury to use a reduced standard of proof. In his reply brief, defendant concedes that this court is bound to follow case law which has rejected similar arguments.
The court instructed the jury in the language of CALCRIM No. 375, which informed the jury that it may consider the evidence of uncharged offenses to prove defendant's intent to conceal a controlled substance in a false compartment or possessed methamphetamine with intent to sell if proved by a preponderance of the evidence.*fn3 CALCRIM No. 375 authorized the jury to use the preponderance standard to determine the issue of whether defendant committed the uncharged offenses. Viewing the instruction as a whole, it is not reasonably likely the jury would have interpreted the instruction to authorize conviction on the charged offenses based on a standard other than proof beyond a reasonable doubt. The preponderance standard for uncharged offenses does not violate the state or federal Constitution, does not reduce the prosecution's burden of proof, does not violate due process, and does not conflict with other instructions requiring circumstantial evidence to be proved beyond a reasonable doubt. (People v. Carpenter (1997) 15 Cal.4th 312, 380-383; People v. Garelick (2008) 161 Cal.App.4th 1107, 1115; see also People v. Reliford (2003) 29 Cal.4th 1007, 1013-1016; People v. Johnson (2008) 164 Cal.App.4th 731, 738-740; People v. Reyes (2008) 160 Cal.App.4th 246, 250-253.) We are bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant finally contends that the trial court's failure to designate the sentence on counts four and five to be consecutive requires the same to be deemed concurrent and that presentence custody credit as to those now concurrent counts must be awarded to the felony counts.
On April 10, 2009, the court sentenced defendant to state prison for an aggregate term of nine years eight months as follows: midterm of three years for transportation of methamphetamine (count three); concurrent one-third the midterm or eight months for using a false compartment (count one); Penal Code section 654 stay on possession of methamphetamine (count two); consecutive one-third the midterm or eight months for possession of methamphetamine for sale (count six); 360 days for possession of marijuana (count four) with credit for time served; 115 days for possession of a smoking device (count five) with credit for time served; three-year enhancement for the prior drug conviction; two years for the on-bail enhancement; and one year for the prior prison term enhancement. With custody credits applied to counts four and five, the court awarded no custody credits toward the felony counts.
The misdemeanor offense of possession of marijuana (Health & Saf. Code, § 11357, subd. (b); count four) provides for a sentence of a $100 fine. The misdemeanor offense of possession of a smoking device (id., § 11364; count five) provides for a maximum sentence of 180 days (id., § 11374).
Almost a year later, on March 5, 2010, the trial court vacated the 360-day sentence on count four (possession of marijuana, a misdemeanor; Health & Saf. Code, § 11357, subd. (b)) and the 115-day sentence on count five (possession of a smoking device, a misdemeanor; id., § 11364), concluding that the sentence on those counts was unauthorized. The court stated: "Specifically, the court's imposition of a 360 day sentence on Count 4, a violation of Health and Safety Code Section 11364 [sic] was unlawful as the maximum sentence for that misdemeanor is 180 days [sic]. Also, the court's imposition of 180 days on count 5, a violation of Health and Safety Code Section 11357 (b) [sic] was unlawful as that misdemeanor is punishable by a $100 fine [sic] only." The trial court vacated sentence on counts four and five and imposed 180 days on count four and a $100 fine on count five. The court ordered sentence on count four to run consecutively to the felony counts with 180 days' credit for time served. The trial court erred by switching the offenses in counts four and five.
On April 10, 2009, the trial court imposed an unauthorized sentence for possession of marijuana (count four). The court originally imposed 360 days. The maximum sentence is a $100 fine. In vacating and reimposing sentence on March 5, 2010, the court imposed an authorized sentence, that is, a $100 fine, for possession of marijuana but erred in labeling the offense as charged in count five. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205 [trial court may correct clerical error or unauthorized sentence at any time].)
On April 10, 2009, the trial court imposed an authorized sentence for possession of a smoking device (count five). The court originally imposed 115 days. The maximum sentence is 180 days. The original sentence of 115 days for count five was an authorized sentence for possession of a smoking device. On March 5, 2010, the court erred in vacating the lawful 115-day sentence, in imposing a 180-day sentence, and by labeling the offense as charged in count four. (Pen. Code, § 1170, subd. (d) [jurisdiction to vacate or modify sentence limited; 120 days to recall sentence]; see Dix v. Superior Court (1991) 53 Cal.3d 442, 463-465; Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1835.) We will order the sentence of 180 days vacated and the sentence of 115 days reinstated for count five.
On April 10, 2009, the trial court did not designate the sentence on counts four and five to be consecutive. On March 5, 2010, the court determined it was vacating sentence "in its entirety, which means that the court, in reimposing sentence at this time, does have jurisdiction to designate whether this sentence is to run consecutively or concurrently to the felony counts." The court ordered the new 180-day sentence for possession of a smoking device for "Count 4 [sic] . . . to run consecutively to the aggregate term imposed" for the felony counts.
Again, the original 115-day sentence was authorized for possession of a smoking device (count five) and the trial court had no jurisdiction to vacate it when it did. In sentencing on April 10, 2009, the court failed to specify whether the misdemeanor sentence on count five was to run concurrently or consecutively to the felony sentence. Certain sentencing rules do not apply to a misdemeanor; a statement of reasons is not required to support a consecutive sentence. However, the trial court is required to specify whether a misdemeanor sentence is concurrent or consecutive. (Pen. Code, § 669; People v. Fugate (1990) 219 Cal.App.3d 1408, 1412-1413; see People v. Downey (2000) 82 Cal.App.4th 899, 915.) We will order the 115-day sentence for count five to run concurrently.
In reimposing sentence on March 5, 2010, the court awarded presentence custody credit. The court also awarded conduct credit pursuant to the amendments, effective January 2010, to Penal Code section 4019. (Sen. Bill No. 3X 18 (2009-2010 3d Ex. Sess.); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 (hereafter Senate Bill No. 3X 18).) Defendant has no disagreement with the trial court's calculation of credits. The People claim the court erred in awarding additional credits pursuant to the amendments effective January 2010.
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76, which amended Penal Code section 2933 regarding presentence conduct credits for defendants sentenced to state prison. (Sen. Bill. No. 76 (2009-2010 Reg. Sess.); Stats. 2010, ch. 426 (hereafter Senate Bill No. 76).) The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 2; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 when a prisoner has served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019, as amended by Senate Bill No. 3X 18, that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; see Pen. Code, § 4019, subd. (g).)
The amendments effective September 28, 2010, enacted by Senate Bill No. 76, which now supersede the amendments enacted by Senate Bill No. 3X 18, effective January 25, 2010, do not state they are to be applied prospectively only. Consequently, for the reasons we concluded that the amendments enacted by Senate Bill No. 3X 18 increasing the rate of earning presentence conduct credit applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided by Penal Code section 2933, pursuant to Senate Bill No. 76, applies retroactively to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving custody credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [same].)*fn4
The People do not challenge the award of actual days. Defendant was in custody for 95 days from March 21, 2006, through June 23, 2006; for one day on January 19, 2007; and for 367 days from November 28, 2007, through November 28, 2008. The court calculated the total as 463 actual days. Under current Penal Code section 2933, defendant is entitled to 463 conduct days, for a total of 926 days of presentence custody credit. (Pen. Code, § 2933, subd. (e)(1) (Sen. Bill No. 76, § 1).) We will order the judgment modified accordingly.
Defendant's conviction on count one, using a false compartment with the intent to transport a controlled substance (Health & Saf. Code, § 11366.8) is reversed. Since the court imposed a concurrent term for count one, defendant's aggregate state prison sentence remains at nine years eight months. The trial court's sentence on counts four and five, imposed on March 5, 2010, are hereby vacated. Defendant's sentence on count four, possession of marijuana (id., § 11357, subd. (b)), shall be a $100 fine. Defendant's sentence on count five, possession of a smoking device (id., § 11364), shall be 115 days in county jail, concurrent, with credit for time served. The judgment is modified to provide for 463 actual days and 463 conduct days, for a total of 926 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.