IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MARCOS RAMON SINCLER-VARRELLESA ET AL., DEFENDANTS AND APPELLANTS.
Marin County Super. Ct. No. SC161567
The opinion of the court was delivered by: Marchiano, P.J.
P. v. Sincler-Varrellesa CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Marcos Ramon Sincler-Varrellesa, Osvaldo Martinez-Ayala, and Luis Alberto Yupit appeal convictions relating to controlled substances in violation of the Health and Safety Code.*fn1 Sincler-Varrrellesa claims the trial court erred in denying his motion to suppress evidence found during a warrantless search to which his wife, Maria Espinoza, had consented. Martinez-Ayala challenges the court's failure to give an instruction concerning entrapment, and the verdict finding him guilty of offering to sell cocaine. Yupit contends the court erred in denying his motion to quash and traverse the search warrant used to conduct a search of his property and person, and in failing to determine he was eligible for mandatory probation under Proposition 36. Both Sincler-Varrellesa and Martinez-Ayala urge that the court miscalculated their presentence credits. As discussed below, we conclude the court erred in calculating presentence credits for Sincler-Varrellesa and Martinez-Ayala and remand on that issue. We conclude there was otherwise no prejudicial error and affirm in all others respects.
The Marin County Major Crimes Task Force (Task Force), a part of the county's Sheriff's Department, performs narcotics investigations throughout the county. It conducts "controlled buy[s]" in which an "undercover officer purchases drugs from a drug dealer," and then attempts to determine the source of the dealer's drugs in order to identify the county's "mid to upper level" drug dealers.
A Task Force team, led by Detective Brennan Collins, began an investigation in October 2008 that focused primarily on Martinez-Ayala. Deputy Edgar Villalobos worked as the undercover officer for the team. On October 7, Villalobos telephoned Martinez-Ayala and arranged to purchase an ounce of cocaine from the latter. The next day Villalobos went to Martinez-Ayala's residence in Novato. Martinez-Ayala came outside and approached Villalobos' vehicle. After informing Villalobos that "his source was arriving," a black Jeep Cherokee drove up, whereupon Villalobos gave prerecorded cash to Martinez-Ayala, who went to the Jeep and, after a few minutes, returned and gave Villalobos the cocaine.
Deputy Villalobos telephoned to arrange the purchase of another ounce of cocaine from Martinez-Ayala on October 14, 2008, which again was to take place outside the latter's residence. Martinez-Ayala told him to come to his residence "so we can make the deal happen." When Villalobos arrived, Martinez-Ayala again went out to his vehicle, where the two engaged in "small talk" for a few minutes. During that time, Martinez-Ayala placed some telephone calls, but ultimately did not furnish any cocaine that day, and the two arranged to conduct a deal the next day.
On October 15, 2008, Deputy Villalobos telephoned Martinez-Ayala to rearrange his second purchase of an ounce of cocaine at the same location. Martinez-Ayala again came out to Villalobos' vehicle. About 30 minutes later, Villalobos saw a blue Saturn drive into the apartment complex driveway. Martinez-Ayala took cash from Villalobos as he had before and walked into the area where the blue Saturn had gone. Villalobos saw Martinez-Ayala exit that area a few minutes later--the two made contact inside Villalobos' vehicle and Martinez-Ayala handed the cocaine over. As Villalobos was leaving he saw the blue Saturn driving away as well, and called in the license plate number and a description. Subsequently, Task Force members identified Yupit as the driver of the blue Saturn on October 15.
Deputy Villalobos set up a third transaction with Martinez-Ayala on October 21, 2008, to purchase two ounces of cocaine. Again, Villalobos parked outside Martinez-Ayala's residence, made contact with him, and engaged in conversation with him. Villalobos then observed a black Jetta pull up. Martinez-Ayala took Villalobos' money to the Jetta, whereupon Villalobos observed the driver of the Jetta remove a plastic bag from the trunk and give it to Martinez-Ayala, who then handed the bag to Villalobos, who confirmed it contained cocaine. Villalobos later identified the driver of the black Jetta as Sincler-Varrellesa.
Deputy Villalobos arranged a fourth transaction to purchase three ounces of cocaine from Martinez-Ayala, which occurred on October 24, 2008. The Task Force team intended to make arrests at the conclusion of this final "buy-bust" transaction. Villalobos again observed Sincler-Varrellesa arrive in the black Jetta, and the transaction proceeded much as it had on October 21. Other members of the Task Force then moved in and arrested Martinez-Ayala and Sincler-Varrellesa. Maria Espinoza, who was with Sincler-Varrellesa in the black Jetta, was detained but later released. Yupit was arrested at his residence later the same day.
Detective Collins, the lead investigator, had obtained a search warrant the day prior to the "buy-bust" on October 24, 2008, which his team executed in conjunction with the arrest of defendants. The warrant authorized the Task Force to search the defendants' persons as well as specified residences and vehicles.
An information filed February 18, 2009, set out 11 counts against the three defendants. It charged Sincler-Varrellesa with three felony violations of section 11351 (possession for sale of cocaine) on October 21 and October 24, 2008, and two felony violations of section 11352, subdivision (a) (sale of cocaine), on October 21 and 24. It alleged Martinez-Ayala had committed four felony violations of section 11351 (possession for sale of cocaine) on October 8, 15, 21, and 24, four felony violations of section 11352, subdivision (a) (sale of cocaine), on those same dates, and a further felony violation of section 11352, subdivision (a) (offer to sell cocaine), on October 14. Yupit was charged with one felony violation of section 11351 (possession for sale of cocaine) on October 15, one felony violation of section 11352, subdivision (a) (sale of cocaine) on October 15, and a further felony violation of section 11351 (possession for sale of cocaine) on October 24. At their arraignment on the information, on February 25, all defendants entered not guilty pleas.
On June 10, 2009, the ninth day of trial, the jury returned with verdicts finding Sincler-Varrellesa and Martinez-Ayala guilty of the charges against each. As to Yupit, the jury found him not guilty of the alleged violation of section 11351 (possession for sale of cocaine) on October 15, 2008, not guilty of the violation of section 11352, subdivision (a) (sale of cocaine) on October 15, and not guilty of the second alleged violation of section 11351 (possession for sale of cocaine) on October 24. As to the last charged offense, however, the jury found Yupit guilty of the lesser included violation of section 11350, subdivision (a) (possession of cocaine).
At the sentencing hearing, on July 8, 2009, the trail court suspended the imposition of sentence on all three defendants. It granted formal probation for both Martinez-Ayala and Sincler-Varrellesa for a period of five years, including a total term of 12 months incarceration in the county jail for each. As to Yupit, the court granted formal probation for a period of three years, including a jail term of 30 days.
Each defendant has appealed. (§ 1237, subd. (a).) On Yupit's application, the trial court stayed imposition of the condition that he spend 30 days' jail time pending his appeal.
A. Consent Search of Sincler-Varrellesa's Room
On the evening of October 24, 2008, the same date as the arrests of defendants and the searches conducted pursuant to the search warrant, Detective Collins conducted a warrantless search of an additional residence in Novato--at 274 San Felipe Way--with the consent of Maria Espinoza. At that address, in the closet of a room sublet by Espinoza and Sincler-Varrellesa, Collins found a digital scale with white residue on it, a shoebox next to the scale containing $602 in cash, and an unlocked toolbox containing cocaine.
At the preliminary hearing, held in January 2009, Sincler-Varrellesa made a motion to suppress this evidence. The motion addressed the validity and scope of Maria Espinoza's consent to the search. The magistrate ruled that the search was reasonable and denied the motion.
Sincler-Varrellesa contends the magistrate erred in denying his motion to suppress, because the Task Force, in conducting the warrantless search, exceeded the scope of consent given by Maria Espinoza. In particular, he argues that Espinoza lacked sufficient interest in the unlocked toolbox to give consent to its search.
The Attorney General claims Sincler-Varrellesa has forfeited appellate review of this claim, because there is no indication that he renewed his motion before the superior court after its denial by the magistrate. We will review the claim on its merits, however. Sincler-Varrellesa points out that the same judge conducted the preliminary hearing, the subsequent arraignments and pretrial motions, and the trial. Thus, the reason for applying the forfeiture rule--that a reviewing court should not reverse a superior court judgment when the latter never had the opportunity to address the purported error--is not strictly implicated in this instance. (See People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
In reviewing the denial of the motion to suppress, we accept the magistrate's express or implied factual findings when these are supported by substantial evidence, and then determine independently whether the search was constitutionally reasonable. (People v. Leyba (1981) 29 Cal.3d 591, 596−597.) While a warrantless search is presumptively illegal, a consent search is a recognized exception. (People v. Bishop (1996) 44 Cal.App.4th 220, 236.) A third party's consent to a police search of a defendant's property is invalid unless that person has authority to consent to the search, or the police reasonably and in good faith believe she has such authority. (Ibid.) Detective Collins testified at the preliminary hearing, stating he gave Maria Espinoza a Miranda *fn2 warning and interviewed her for 10 to 30 minutes following her detention on October 24, 2008. Espinoza told him she had been married to Sincler-Varrellesa for about a year. She further said they lived at 1237 Denlyn Street in Novato--one of the residential addresses included in the search warrant. Collins, however, was in communication with another detective who was then in the process of executing the search warrant at 1237 Denlyn Street, and that detective's description of the premises was "completely different" from Espinoza's. Espinoza's directions to the residence also did not match directions to 1237 Denlyn Street.
Because Maria Espinoza was being cooperative, and "freely" told Detective Collins she would take him to the residence where she and Sincler-Varrellesa lived, Collins and several other officers drove, at Espinoza's direction, to 274 San Felipe Way in Novato. Espinoza said she "would let [them] come inside" if they would not tell the landlord that Sincler-Varrellesa had been arrested for a "narcotic related offense." She took the officers inside using a key to the front door, and they explained to the landlord that Espinoza was going to show them her room and he raised no objection. The bedrooms of the single-family residence were sublet to different tenants. Overall, the residence matched Espinoza's earlier description of her home, as opposed to the residence at 1237 Denlyn Street. When they reached the room Espinoza shared with Sincler-Varrellesa, Espinoza unlocked it with her key, and told the officers they were "free to search our room."
The officers found both male and female clothing in the room. They also found a bill with Sincler-Varrellesa's name on it for work performed on a vehicle. The officers found the cash in the shoebox where Espinoza had previously described it, stating it belonged to both her husband and herself. The unlocked toolbox, containing over 190 grams of cocaine, was on the floor of the closet, underneath some female clothing hanging in the closet. Following discovery of these items, Espinoza told the officers she had not been aware the cocaine was in the room, and that the toolbox was "part of her husband's work."
In our view, the foregoing facts which are essentially undisputed, gave Detective Collins and his fellow officers an objectively reasonable basis to conclude that Maria Espinoza was authorized to consent to their search of the room and closet, including the toolbox. She told the officers she was married to Sincler-Varrellesa and shared the room with him. She had keys to both the front door and the room itself. The bill in Sincler-Varrellesa's name was an indicator of his shared occupancy. From the fact she had witnessed Sincler-Varrellesa's arrest and the concern she expressed about her landlord, Espinoza was clearly aware that Sincler-Varrellesa had been arrested for violations involving illegal drugs. Yet, just as clearly, she chose to cooperate with the Task Force when she described and led them to the room she shared with Sincler-Varrellesa--one about which they had previously been unaware--and "freely" gave her consent to have the room searched. As for the toolbox, it was closed but unlocked and was located underneath female clothing hanging in the closet. The totality of circumstances would indicate to a reasonable person that the room and the closet were shared equally, and with equal control, by Espinoza and Sincler-Varrellesa living as wife and husband.
The consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared. (People v. Jenkins (2000) 22 Cal.4th 900, 976-977, citing United States v. Matlock (1974) 415 U.S. 164, 170.) The crucial issue is whether the consenting third party " 'possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.' " (Id. at p. 977.) We are satisfied Espinoza demonstrated such authority to the officers, and conclude the search was reasonable under all the circumstances. The magistrate did not err in denying the motion to suppress.
B. Request of Martinez-Ayala for Jury Instruction on Entrapment
During the course of the trial, Martinez-Ayala requested that the trial court instruct the jury with CALCRIM No. 3408, concerning the defense of entrapment. The trial court denied the request, concluding there was not substantial evidence of entrapment by the Task Force.
Martinez-Ayala urges that the trial court erred in failing to give the instruction. In his view, there was substantial evidence of entrapment because Deputy Villalobos, pretending to be a drug dealer, called Martinez-Ayala repeatedly to set up the transactions that occurred between them in October 2008. Further, Villalobos told Martinez-Ayala at one point he would rather deal with him than with a third person, and on another occasion mentioned a third person known to them both.
The test for entrapment in California is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person to commit the offense, presuming that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect is permissible, but it is not permissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime. (People v. Barraza (1979) 23 Cal.3d 675, 689−690 (Barraza).)
We have reviewed the trial testimony of Deputy Villalobos regarding his conduct as the undercover officer. While he may have made repeated calls to Martinez-Ayala, there is no indication these calls included affirmative acts designed to induct a normally law-abiding person to commit a crime. Villalobos simply posed as a drug dealer interested in making several purchases of cocaine in amounts of one, two, or three ounces. There was no evidence of any reluctance on the part of Martinez-Ayala to complete any of the transactions, so as to require any form of badgering, cajoling, or other impermissible conduct. In fact, when the two met they typically engaged in a period of "small talk" before completing their transaction, and during these exchanges Martinez-Ayala's comments demonstrated a "wide knowledge" of cocaine sales. On cross-examination, Villalobos admitted he had mentioned the name of a third person--evidently a drug dealer--who was known to Martinez-Ayala, but in context we deem it more the mention of a mutual business acquaintance--perhaps to bolster Villalobos' claim to be a drug dealer himself--than the mention of a friend in order to induce an illegal sale that Martinez-Ayala would not otherwise have been willing to make. Villalobos' one comment, that he preferred to deal with Martinez-Ayala than another person, does not by itself rise to the level of impermissible "overbearing" conduct. (Barraza, supra, 23 Cal.3d at p. 690.) Defendant was a willing participant, eager to make a sale.
Substantial evidence of entrapment, so as to require a trial court to give CALCRIM No. 3408, is evidence that, if believed, would be sufficient for a reasonable jury to find that the defendant has shown the defense to be more likely than not. (Bench Note to CALCRIM No. 3408 (2009-2010 ed.) p. 898.) We conclude the trial court correctly determined there was no substantial evidence requiring this instruction.
C. Conviction of Martinez-Ayala for "Offering to Sell" Cocaine
The information filed in February 2009 included an accusation that Martinez-Ayala had committed the crime of "offering to sell" cocaine on October 14, 2008, in violation of section 11352, subdivision (a). The trial court instructed the jury that, to establish Martinez-Ayala's guilt of this offense, the prosecution was required to prove he "unlawfully offered to sell cocaine" and "when [he] made the offer, he intended to sell the controlled substance," but it was not necessary for the prosecution to prove Martinez-Ayala "actually possessed the controlled substance." The jury found Martinez-Ayala guilty of this offense.
Martinez-Ayala contends his conviction for this offense is not supported by substantial evidence, either that he made an unlawful offer to sell cocaine on October 14, 2008, or that he had the specific intent to sell cocaine on that date.
Deputy Villalobos testified that he called Martinez-Ayala on the afternoon of October 14, 2008, to arrange his purchase of one ounce of cocaine from the latter for $700. Martinez-Ayala told Villalobos to "go to his . . . house, so we can . . . make the deal happen." Villalobos called Martinez-Ayala again when he arrived outside the apartment complex about two hours later. Martinez-Ayala walked out and told Villalobos they would " 'wait a few minutes to see if somebody . . . shows up.' " While they were waiting, Martinez-Ayala made several telephone calls, but ultimately no transaction took place that day. The two arranged to "conduct a deal" the next day.
Martinez-Ayala argues the evidence was not sufficient to prove he was guilty of offering to sell cocaine on October 14, 2008, with the specific intent to sell.
We view the evidence in the light most favorable to the judgment below, to determine whether there is substantial evidence by which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
We conclude there was substantial evidence. The foregoing testimony shows Martinez-Ayala and Deputy Villalobos agreed on October 14, 2008, that the former would sell and the latter would buy one ounce of cocaine, and the former instructed the latter to meet him later that day "to make the deal happen." Although Martinez-Ayala was ultimately unable to obtain the ounce of cocaine that day, it is nevertheless clear that in his initial conversation he offered to sell that amount with the intent to sell.
The decisions cited by Martinez-Ayala are distinguishable. The reviewing court in People v. Innis (1971) 16 Cal.App.3d 175 (Innis) held the defendant had made no offer to sell mescaline as of the time she broke off her conversation with the undercover agent, because at that point she had only determined the agent wanted to buy some and said she was going to "check" how much she had available for sale. (Innis, supra, at p. 178.) Here, Martinez-Ayala clearly offered to sell one ounce of cocaine. The decision in People v. Jackson (1963) 59 Cal.2d 468 (Jackson) is similarly unpersuasive. In that case, the defendant was essentially a confidence artist who extracted money from his victim without any intent to return with illegal drugs for which the victim had bargained. (See Jackson, supra, at p. 470.) The facts are different here where no money changed hands on October 14, 2008, and Martinez-Ayala completed sales to Deputy Villalobos both before and after that date. There was no evidence whatever indicating Martinez-Ayala ever took money without any intent to provide cocaine in return.
D. Yupit's Motions to Quash the Search Warrant
At the preliminary hearing in January 2009, Martinez-Ayala made a motion to disclose a confidential informant--whose identity was in a sealed attachment to the search affidavit (search affidavit) that the Task Force had submitted on October 23, 2008, to obtain the search warrant it executed the following day. He sought either to quash the search warrant or dismiss the counts against him in the event the prosecution declined to reveal its confidential informant. The judge denied the motion after reviewing the sealed and unsealed portions of the search affidavit, determining the magistrate who had issued the search warrant had properly ordered the sealing of the confidential portion.
Among Yupit's pretrial motions--filed March 13, 2009--was one seeking disclosure of the confidential informant described in the sealed attachment to the search affidavit, or in the alternative dismissal of the information as to him. Another motion by Yupit essentially renewed Martinez-Ayala's prior motion to unseal the confidential attachment to the search affidavit--for the purpose of assisting a third motion of his, under Penal Code section 1538.5, to quash the search warrant issued on the basis of the search affidavit. On April 2, 2009, the trial court denied Yupit's motions to unseal the attachment to the search affidavit or to disclose the information therein concerning the confidential informant.
Yupit contends the trial erred in denying his motions on April 2, 2009, without first holding an in camera hearing. He asks that we remand on this issue so that the court may conduct such a hearing in reconsideration of his motions.
When a defendant makes a motion before the superior court to quash a search warrant supported by an affidavit that has been sealed in significant part to protect the identity of a confidential informant, the court "should" conduct an in camera hearing to determine whether sufficient grounds exist to maintain confidentiality of the informant's identity, and whether any portion of the sealed affidavit may be disclosed without revealing that identify. (People v. Hobbs (1994) 7 Cal.4th 948, 972.)
In this instance, however, the trial court judge was the same judge who did conduct an in camera review of the sealed portion of the search affidavit when it denied Martinez-Ayala's motion at the preliminary hearing. In denying Yupit's motions, the judge noted he had a "fairly good recollection" of his prior review, and was not persuaded by the arguments presented in Yupit's motions to change his previous determination that the affidavit had been properly sealed by the magistrate who had issued the search warrant. The judge, in effect, determined it was not necessary for him to conduct a repeat in camera review three months later, and we see nothing in the record to indicate that he abused his discretion in doing so.
E. Yupit's Request for Proposition 36 Sentencing
On the same day as the jury verdicts, June 10, 2009, Yupit filed a motion requesting a sentence pursuant to Proposition 36 (see Pen. Code, § 1200 et seq.) with respect to his conviction for possession under section 11350, subdivision (a). The trial court denied this motion at the sentencing hearing held July 8, 2009.
Proposition 36 was an initiative measure, effective July 1, 2001, under which defendants convicted of a " 'nonviolent drug possession offense' " are, with certain exceptions, eligible for a grant of probation that includes a drug treatment program. (See Pen. Code, §§ 1210, subd. (a), 1210.1.)
Yupit urges that because he was convicted only of the lesser included offense of mere possession, and because he did not come within any of the statutory exceptions, the trial court was required to grant him probation pursuant to Penal Code section 1210.1.
An officer of the San Rafael Police Department who had been working with the Task Force testified that, when Yupit was arrested on October 24, 2008, a search of his person led to the discovery of nine separate bindles of cocaine in a total amount of 1.8 grams, as well as $486 in cash. In his opinion, the separate packaging and loose cash indicated possession for sale. The trial court suggested that these and other facts included in the presentencing report indicated--by a preponderance of evidence for sentencing purposes--that Yupit's possession was for sale rather than personal use. In denying Proposition 36 probation and adopting the sentence recommended by the Probation Office, the court noted the latter recommendation was "fair . . . based on the nature of [Yupit's] participation."
Yupit's acquittal on the charge of possession for sale did not bind the trial court from determining that issue for Proposition 36 purposes based on a preponderance of evidence standard, because an acquittal merely means the jury was not convinced beyond a reasonable doubt. (People v. Harris (2009) 171 Cal.App.4th 1488, 1498.) Further, as one court has noted, it is illogical to suggest that the electorate, in adopting Proposition 36, intended trial courts to lose their traditional judicial power to determine whether a defendant is eligible for a diversion-type program, in the absence of some explicit or implicit indication. (People v. Glasper (2003) 113 Cal.App.4th 1104, 1116.) We agree, and conclude the trial acted within such traditional power when it reconsidered the "nature of [Yupit's] participation" based on the preponderance of evidence standard of proof. The jury's determination of possession did not preclude the trial court from considering whether the defendant was a participant in a sales operation to preclude Proposition 36 consideration.
F. Calculation of Presentence Credits for Sincler-Varrellesa and Martinez-Ayala
Sincler-Varrellesa and Martinez-Ayala both contend that their presentence credits should be recalculated pursuant to Penal Code section 4019, as amended during the pendency of their appeals, effective January 25, 2010.
Under former section 4019, defendants were eligible for two days of conduct credit for every four days in custody. That section, as amended in January 2010, provides that eligible defendants are entitled to two days of conduct credit for every four days in custody. (See Pen. Code, § 4019, subds. (b), (c) & (f).) The amendments essentially doubled the conduct credits for otherwise eligible defendants.*fn3
There is a split of authority among the courts of appeal on the issue whether amended Penal Code 4019 applies prospectively or retroactively, and the resolution of this conflict is currently pending before the Supreme Court. The majority of the courts of appeal that have addressed this issue, including Division Two and Division Five of this court, have held that the amendment to Penal Code section 4019 is retroactive, because statutory amendments lessening punishment are generally deemed to be so. (See In re Estrada (1965) 63 Cal.2d 740, 745.) We are persuaded by the majority view, and hold that amended Penal Code section 4019 applies retroactively in favor of Sincler-Varrellesa and Martinez-Ayala.
Because the total presentence credits for these defendants exceeded their respective periods of incarceration, we remand to the trial court to recalculate their credits and determine, in its discretion, the rate and amount of reduction of their fines pursuant to Penal Code section 2900.5.
The matter is remanded for recalculation of presentence credits for defendants Sincler-Varrellesa and Martinez-Ayala pursuant to Penal Code section 4019, as amended January 25, 2010, and for determination of the application of excess credits to reduce these defendants' fines pursuant to Penal Code section 2900.5. In all other respects, the judgment is affirmed.