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Ge Yang v. John Marshall

December 7, 2011

GE YANG, PETITIONER,
v.
JOHN MARSHALL, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner challenges a 2008 judgment of conviction entered against him in Sacramento County Superior Court on charges of possession of methamphetamine, and possession of opium and methamphetamine for sale while personally armed with a firearm. He seeks relief on the grounds that the trial court violated his Fourth Amendment rights when it denied his motion to suppress evidence, and the prosecutor committed prejudicial misconduct during closing argument. Upon careful consideration of the record and the applicable law, the court finds that petitioner's application for habeas corpus relief must be denied.

I. Background*fn2

Defendants Yer Yang and Ge Yang, who are wife and husband, appeal following convictions for possession of controlled substances (opium and methamphetamine) for sale while personally armed with a firearm (Health & Saf.Code, §§ 11351, 11378; Pen.Code, § 12022, subd. (c)*fn3 ; possession of methamphetamine by Ge Yang ( Health & Saf.Code, § 11377, subd. (a)); and child endangerment by Yer Yang (§ 273a, subd. (a)). In separate appellate briefs but joining in each others' contentions, defendants assign reversible error to denial of their suppression motion, evidentiary rulings, and prosecutorial misconduct. We shall order correction of the abstract of judgment. We shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged both defendants with (1) possession of a controlled substance (opium) for sale on November 2, 2006 (Health & Saf.Code, § 11351), while personally armed with a firearm (§ 12022, subd. (c)); and (2) possession of methamphetamine for sale on November 2, 2006 (Health & Saf.Code, § 11378), while personally armed with a firearm. A third count was dismissed. Count Four alleged child endangerment likely to produce great bodily injury (§ 273a, subd. (a)) by Yer Yang only, on November 2, 2006. Count Five alleged possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)) by Ge Yang only, on March 21, 2007.

The trial court denied defendants' motion to suppress all evidence as the product of a warrantless search of defendants' home. According to evidence adduced at the hearing on the suppression motion, the police went to the house because they had information that a person on searchable probation (who is not a party to this case) lived there, and there might be drug dealing there. The officers saw drugs and a gun in plain view during a protective sweep for officer safety. They froze the scene and obtained a search warrant.

Evidence adduced at trial included the following: On November 2, 2006, three uniformed police officers went to defendants' residence shortly before 7:00 p.m. to conduct a search. A male outside the house (La Yang), who said he lived there, confirmed it was also the residence of the person the police sought (who apparently was not home at the time), and let the police into the house through a side door that opened into the kitchen.*fn4

There were a lot of people in the house (later determined to be residents, relatives, and one friend). A female teen squeezed in through the door, past an officer, and ran through the house, making the officers anxious she was trying to alert people of the police presence, people who might arm themselves. When the girl disregarded the officer's direction to stop, Officer Joseph Ellis ran after her. She ran into and out of the garage. The officer entered the garage and saw a "bunch of smoke in the air" (which smelled something like cigarette smoke) and a piece of plywood, large enough to conceal someone, against the wall. The officer, assuming someone was there, said, "put your hands up," and two males (defendant Ge Yang and a friend) emerged. The officer saw smoking pipes in the garage but did not collect them because he could not tell what was smoked in them.

Meanwhile, Officer David Hogge conducted a protective sweep of the house for officer safety, to round up any people who were in the house and place them in the living room. La Yang accompanied him. The officer checked two bedrooms. He then approached the master bedroom, which La Yang said was his parents' room. The officer entered, saw no one in the bedroom, turned into a hallway within the bedroom which led to a walk-in closet and bathroom, and saw an older Asian female (Yer Yang) squatting at a small wooden table at the open closet entrance. On the table were a scale, scissors, chopped pieces of a hard black substance (later determined to be opium), some of it in small ("one-by-one") baggies, and numerous empty baggies. A small female Asian child stood holding a baggie open in front of Yer Yang. The officer handcuffed Yer Yang, looked around "to take a look at my surroundings" and noticed a gun holster and magazine on the top shelf of a small closet opposite the walk-in closet. He stood on "tippy toes" to see if the magazine was connected to a handgun, and he saw that it was.

The officers summoned a narcotics team and froze the scene while they obtained a search warrant, which, when executed, disclosed methamphetamine in the master bedroom and two loaded guns. Officer Ellis testified at trial that defendant Ge Yang gave a statement at the house, through an interpreter, that (1) the opium was his-he used it to help with back pain; (2) methamphetamine found in a fanny pack in the master bedroom was his-he used it to make himself "feel good"; (3) a shotgun found in the house was his-he used it for hunting and did not notice the serial number was filed off; and (4) a pistol found in the house was his, having been abandoned there months earlier by his brother-in-law.

Ge Yang was not kept in custody the day of the search, due to poor health. When he was arrested a few months later pursuant to an arrest warrant, he had methamphetamine in his shirt pocket and jacket pocket (which formed the basis for Count Five-possession of methamphetamine).

A criminalist testified the substances found in the master bedroom were opium (a total of 43 grams or about an ounce and a half) and methamphetamine (a total of 12 grams or less than half an ounce), some of which had been separated into small baggies. Opiates contain morphine and codeine, can be used as painkillers, and are highly addictive.

Other evidence taken from the master bedroom closet area included empty baggies, scissors, and a digital scale. The search also revealed a surveillance camera hooked up to a small television in the garage.

Police Detective Chou Vang testified as an expert on the sale of opium and methamphetamine. He opined defendants were selling the opium found in the house, because a regular user who used opium only for himself would not need the scale or separate baggies. A wife preparing doses for her husband might use a scale, scissors and baggies, but it is more likely she would know, just as the chronic user would know, how much to pinch off without having to undergo the "painstaking" process of cutting and weighing it. A heavy user of opium could use one and a half grams per day, or 45 grams per month. Forty-three grams costs about $700 purchased in bulk and, individually packaged for sale, could have a street value of $2,400.

Vang opined the methamphetamine was also possessed for sale, based on the scale and how the drug had been divided into multiple baggies. A heavy user of methamphetamine could use one and a half grams per day. Vang said drug dealers often have firearms for protection against customers or dealers who may attempt to steal from them. Drug dealers also use surveillance cameras to protect against theft and surprise visits from the police.

A police detective testified to the danger of exposing small children to drugs.

Evidence was adduced concerning the family's income and expenses.

Defendants did not dispute possession of the drugs but disputed selling drugs. The defense elicited evidence that the police did not find items often found where drugs are sold, such as police scanners, cell phones or pagers, pay-owe sheets, customer lists, large amounts of cash, or expensive items. No one knocked on the door or phoned while the police were at defendants' house. The police did not question neighbors as to whether there were a lot of people coming and going, as might be expected if drugs were being sold.

Defendant Yer Yang (wife) testified for the defense. She and her husband are Hmong. They did not sell drugs. Ge Yang uses all the drugs himself to relieve pain from physical injuries to his back, intestine and stomach, which occurred in 1973 and 1974. He is very addicted to opium and smokes it in the garage. Yer Yang cuts and packages it to regulate his intake, because otherwise he uses it too quickly and comes to her for money to buy more, and she does not want him to overdose. She doles it out to him in individual doses. The amount confiscated by police would have lasted him a couple of ...


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