APPEAL from a judgment of the Superior Court of San Diego County, William C. Gentry, Jr., Judge. Affirmed. (Super. Ct. No. SCS238593)
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
Authorities at the San Ysidro Port of Entry, at the border between Mexico and the United States, discovered approximately 193 pounds of marijuana hidden in a truck that Feliciano Covarrubias was driving. A jury found Covarrubias guilty of possession of marijuana for sale (Health & Saf. Code, § 11359) (count 1) and transporting more than 28.5 grams of marijuana into California (Health & Saf. Code, § 11360, subd. (a)) (count 2). With respect to count 2, the jury also found true an allegation that the marijuana was not for personal use (Pen. Code, § 1210, subd. (a)). The trial court placed Covarrubias on formal probation for three years, subject to various conditions, including that he serve 240 days in jail.
On appeal, Covarrubias contends that the trial court erred in admitting the expert testimony of Immigration Customs Enforcement Special Agent Andrew Flood. Agent Flood testified concerning the structure and practices of drug trafficking organizations, among other issues. We agree that the court erred in admitting Agent Flood's testimony concerning the structure and practices of drug trafficking organizations, but conclude that any error in admitting this testimony was harmless. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial proceedings concerning Agent Flood's testimony
During a pretrial hearing, defense counsel indicated that the People had provided her with Agent Flood's curriculum vitae, and that it appeared to defense counsel that the People intended to have Agent Flood testify as an expert witness "as to drug trafficking issues." Defense counsel orally moved to exclude "profile evidence and other evidence associated with drug trafficking organizations," arguing that the evidence was irrelevant because Covarrubias was not being charged with "being a drug courier," and that the evidence was more prejudicial than probative. Counsel requested that Agent Flood not be permitted to testify "to things such as the structure of . . . drug organizations and how Mr. Covarrubias and his conduct may have played into that structure."
The prosecutor responded by clarifying that she intended to have Agent Flood testify as to "how these organizations work and why they would use a mule[*fn1 ] to traffic the drugs across the border." The prosecutor contended that the evidence was "highly relevant." After hearing argument from both counsel, the trial court requested that the parties submit written briefing on the issue.
In response to the court's request, Covarrubias filed a motion in limine to exclude "profile/modus operandi evidence and testimony." In his motion, Covarrubias argued that expert testimony offered to establish that a defendant fits a certain criminal profile is inadmissible. Covarrubias also argued that testimony concerning the structure of drug trafficking organizations is inadmissible to establish a defendant's knowledge of the presence of drugs in his possession. Covarrubias argued that case law permitting "modus operandi" testimony regarding specific techniques that drug couriers use to smuggle drugs was distinguishable because here, there was no evidentiary foundation for such testimony. Specifically, Covarrubias argued that the trial court should preclude Agent Flood from testifying that drug trafficking organizations do not entrust large quantities of drugs to people who are unaware that they are transporting such drugs. Covarrubias contended that the court should not permit Agent Flood to testify as to the value of the drugs seized because such testimony was inflammatory. Finally, Covarrubias argued that testimony as to the value of the marijuana seized was irrelevant because it relied on a "double inference: (first inference) that [Covarrubias] knew [h]e was carrying drugs because; (second inference) drug dealers would not entrust drugs to unknowing individuals."*fn2
The People filed a brief in which they maintained that the trial court should admit expert testimony concerning "drug trafficking organizations and how they work" at trial. The People argued:
"Here, . . . the People do not intend to introduce any testimony that defendant meets the profile of a drug carrier or drug mule. The expert will not be testifying about the facts of this particular case. Rather, the expert will testify about marijuana and about drug smuggling in general. The expert will testify to the value of marijuana. The expert will also testify that drug trafficking organizations will pick couriers who they trust. The expert will testify that the organizations are dependent on drivers to get the drugs to their desired destination."
The People argued that such testimony was relevant to disprove Covarrubias's anticipated defense that he did not know that there was marijuana in his truck.
The trial court held a hearing pursuant to Evidence Code section 402*fn3 to consider the admissibility of Agent Flood's testimony. At the hearing, Agent Flood testified about his prior law enforcement experience and training, including his experience conducting narcotics and gang investigations. Agent Flood discussed the various ways in which drugs are packaged for smuggling, and stated that many different types of vehicles may be used in smuggling operations. Agent Flood also stated that law enforcement officials were less likely to detect marijuana being transported across the San Ysidro border crossing at times when traffic is lighter, and that the middle of the night was not a high traffic time.
Agent Flood also discussed the quantity of marijuana that a person might possess for personal consumption, and indicated that more than an ounce of marijuana is considered to be a distributable quantity. Agent Flood also discussed the price of marijuana and various factors that affect price, including quality, location, and quantity. Agent Flood testified that the retail value of 193 pounds of marijuana in San Diego was approximately $185,000.
Agent Flood described the various roles that individuals in drug
trafficking organizations perform, including growing marijuana,
finding vehicles to transport marijuana, building compartments in
vehicles to hide the marijuana, recruiting drivers to transport the
marijuana, transporting marijuana, distributing marijuana to street
level dealers, and selling it on the streets. Agent Flood explained
that a "mule" is a person who transports drugs on behalf of the drug
trafficking organization. The organization uses recruiters to find
mules who are willing to transport drugs for money. Agent Flood
stated that drug trafficking organizations often provide vehicles to
mules for transporting drugs, but also said that it is common for the
vehicle to be registered in the mule's own name, and that a border
inspector will often ask more questions of a person who is driving a
vehicle that is not registered in his or her own name.*fn4
Agent Flood explained that drug trafficking
organizations also will perform "dry runs" in which a vehicle that the
smugglers intend to use at a later time to transport drugs across the
border will be driven across the border with no drugs hidden in it, in
order to practice the operation and to establish a history of border
crossings with a driver and a particular vehicle.
Agent Flood testified that mules are very important to a drug trafficking organization because "they are the ones that bring the drugs into the United States and that's where the money is at." Agent Flood explained that a "blind mule" is a term that is used to refer to a "courier [who] doesn't know what they have on them." Agent Flood testified that a blind mule is a "mythical character," and that he had never been involved with, nor heard of, a case involving a blind mule. Agent Flood also explained why drug trafficking organizations do not use blind mules:
"Basically it's a business. You have to look at it not as 193 pounds of marijuana in the car, but say, . . . $185,000 of cash in the car. It's a business. [¶] You don't--the idea of putting drugs . . . on someone and hope to retrieve it somewhere north of the border is--it's guesswork. And in the business of drug trafficking, when you lose that much money, it's that person's life because they are responsible for that amount of money."
On cross-examination, Agent Flood reiterated that he had never come across a case that involved a blind mule, and that "based on [his] training and experience," it was his belief that any time a person is stopped with drugs in his or her vehicle, the person knows that there are drugs in the vehicle.
At the conclusion of the hearing, defense counsel argued that the court should exclude Agent Flood's testimony in its entirety. Defense counsel argued that the testimony was irrelevant and prejudicial, that it was "improper character evidence," and that presentation of the testimony would be unduly time consuming. Defense counsel further argued that allowing the People to elicit Agent Flood's proffered testimony would constitute improper presentation of an expert opinion as to Covarrubias's mental state, i.e., whether he knew that there was marijuana in his truck. Defense counsel also noted that Agent Flood had discussed gangs in his testimony, and requested that the trial court exclude any mention of gangs, pursuant to Evidence Code section 352. Counsel summarized her argument by stating: "So, I'm going to ask the court to, one, exclude it, all of it . . . . [¶] And separately then, I'm asking the court to exclude the bulk of it, certainly the profile information and the different participants and the drug cartel or organization as [Agent Flood] indicated."
In response, the prosecutor argued that evidence pertaining to "drug trafficking information" was admissible to refute Covarrubias's contention that he did not know that there was marijuana in his truck, and that he had "unknowingly carried it across the border." The prosecutor also argued that, at "the very minimum," the court should allow testimony as to the value of the marijuana because Covarrubias was charged with possession for sale, and the "jury has to understand that this is a lot of marijuana and no one would be . . . having this for personal use." The prosecutor argued, in the alternative, that the court should permit the People to offer Agent Flood's testimony in rebuttal if Covarrubias were to testify and deny that he knew there was marijuana in his truck.
The trial court ruled that it would not exclude Agent Flood's testimony, stating that, in the court's view, "a lot of it is relevant." The court further stated, "I don't find that it's substantially more prejudicial than probative. It provides a background to the movement of narcotics from Mexico to the United States. The . . . agent did not express an opinion as to Mr. Covarrubias." However, the trial court did order that Agent Flood not refer to gangs in his testimony, reasoning that such evidence "would introduce an unnecessary element into this as there's no evidence or suggestion that this was tied to or at the behest of gangs." The court summarized its ruling by stating, "I'm prepared to allow [Agent Flood] to testify to the topics that he testified to, basically what different terms mean and essentially values of marijuana, his opinion that drugs are essentially a business and such. But with the modifications and limitations[*fn5 ] that I've mentioned." After the court issued its ruling, defense counsel inquired, "So the court is ruling that all of the information such as the organization . . . all of that is going to be allowed to come in?" The court responded in the affirmative.
B. The People's evidence at trial
1. The discovery of marijuana in Covarrubias's truck
On May 6, 2010, at approximately 3:00 a.m., Covarrubias drove his Ford F250 truck to the San Ysidro border crossing from Mexico. Customs and Border Protection Agent Rhonda Beyke was screening vehicles at the crossing with "Kyra," a dog specially trained to detect narcotics. Kyra began to run in circles around Covarrubias's truck and pulled Agent Beyke toward the truck. Two agents escorted Covarrubias to a secondary screening area. At the secondary screening area, Kyra jumped into the back of Covarrubias's truck and signaled an alert while sitting next to several bags of roofing shingles. Agent Beyke opened one of the bags of shingles and saw several rectangular packages wrapped in tape.
Customs and Border Protection Officer Veronica Morey searched Covarrubias's truck and found seven "identical" bags of roofing shingles in the bed of the truck. The factory seals on all of the bags had been broken, and the bags had been resealed with clear tape. Inside the bags of shingles, agents found separately packaged bundles of marijuana. The packages were wrapped in "cellophane dryer sheets." In total, the marijuana weighed approximately 193 pounds. Officer Morey placed Covarrubias in a cell and told him that he was being held for transporting narcotics into the United States.*fn6
2. Covarrubias's interrogation
Immigration Customs Enforcement Special Agent Mitchell Martinez interrogated Covarrubias shortly after Covarrubias was placed in the cell. Covarrubias initially told Agent Martinez that he was a day laborer, that he was trying to find jobs as a painter, and that he was coming to the United States to find work. According to Agent Martinez, Covarrubias said that he was "going to see--into a roofing job somewhere in Encanto, but he wasn't sure where in Encanto." Agent Martinez asked Covarrubias for additional details concerning the job, including who was going to hire him and the specific location of the job. Covarrubias was unable to provide Agent Martinez with any further details, and said that he "wasn't quite sure if he was going to have [a] roofing job that day."
Agent Martinez asked Covarrubias whether he owned the truck that he had been driving. Covarrubias said that the truck was his, that he had owned it for approximately four to five ...