(Super. Ct. No. 09F02688)
The opinion of the court was delivered by: Raye , P. J.
Received from court on 5/22/12
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendants Jose Huato and Hugo Garcia of conspiracy to transport/sell methamphetamine (Pen. Code, § 182, subd. (a)(1) -- count one), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) -- count two), and possession of methamphetamine for sale (Health & Saf. Code, § 11378 -- count three).*fn1
The court sentenced both defendants to state prison for the upper term of four years on count two. The court stayed punishment on counts one and three. (Pen. Code, § 654.)
Defendant Huato lumps several contentions under one heading: the trial court erred in ruling on a hearsay objection, in denying his mistrial motion, and in failing to instruct the jury sua sponte to disregard certain volunteered testimony; counsel rendered ineffective assistance in failing to request a curative instruction and to object "with more vigor"; and absent inadmissible hearsay, insufficient evidence supports his convictions. We reject these contentions.
Defendant Garcia contends his conviction for conspiracy must be reversed because the trial court failed to give a unanimity instruction. We reject his contention.
Both defendants contend the trial court failed to conduct a hearing prior to ordering them to pay attorney fees. The People concede, suggesting this court remand or strike the orders. We accept the concession and will strike the orders.
Finally, both defendants contend they are entitled to additional presentence custody credit. We agree and will modify the judgments accordingly.
On April 8, 2009, Cal-MMET (California Multi-Jurisdictional Methamphetamine Enforcement Team) conducted a buy/bust operation that resulted in the arrest of defendants. Detectives Salvador Robles, Chris Rogers, and Thomas Coulombe, who testified at trial, participated in the buy/bust operation with four to five other officers, all assigned to Cal-MMET.
Detective Avila, the officer in charge of the investigation, instructed a confidential informant (CI) to set up the purchase of methamphetamine from defendant Huato at the parking lot of a Home Depot on Truxel Road and Interstate 80. The CI had previously set up purchases from Huato. The CI made two calls in the presence of Detectives Avila and Robles. During one of the calls, the CI handed the cell phone to Detective Robles, who spoke first with a person later identified by Detective Robles as defendant Huato, and then with a person later identified by Detective Robles as defendant Garcia. Detective Robles agreed with defendant Garcia to change the location for the transaction to a Mexican restaurant on San Juan and Northgate.
Detective Rogers testified that he went to the restaurant and parked nearby to watch. A van that was being followed by a surveillance team arrived and parked six stalls behind Detective Rogers. Detective Coulombe saw the van parked at the restaurant.
According to Detective Rogers, defendant Huato came out through "the passenger side sliding door" of the van while defendant Garcia came out through the front passenger door of the van. Defendant Garcia reached back under the front passenger seat and pulled out a black bag. A third person, later identified as Omar Guzman, came "across the front of the van from the driver's side." Defendant Garcia and Guzman walked into the restaurant while defendant Huato went to the rear of the van and smoked a cigarette, watching something across the street. After about five minutes, defendant Huato went into the restaurant.
Detective Robles, in plain clothes and an unmarked car, arrived at the restaurant, located in a strip mall. Detective Robles was instructed to go into the restaurant and determine whether the arrest should occur there. Detective Robles entered and saw defendants Huato and Garcia and another person he could not identify sitting near the door. Detective Robles recognized defendant Huato from "previous surveillance." On the floor next to defendant Garcia, Detective Robles saw a paper shopping bag. Detective Robles walked past them and ordered a drink. While waiting, Detective Robles heard defendant Garcia say that he was "not going to wait much longer." Detective Robles also heard the other two talk about waiting and recognized defendant Huato's voice.
Less than five minutes after entering, Detective Robles left the restaurant, informed Detective Avila what had transpired, and returned to his car. Detective Avila decided that the location should be changed back to the Home Depot because the restaurant was not a safe location (the parking lot was too small and there were too many civilians in the area).
Defendant Huato and Guzman came out of the restaurant. Defendant Huato stood in the parking lot, smoking and watching traffic. Defendant Huato then approached a Honda parked in the parking lot and began talking to a Hispanic male, later identified as Rafael Guevara-Sanchez, standing by the Honda. According to Detective Rogers, defendant Garcia and Guzman approached and joined in "what looked like a pretty serious conversation." Defendant Garcia separated from the group and got on the phone, rejoined the group, then got back on the phone. Guzman got into the driver's seat of the Honda and defendant Huato got into the passenger seat of the Honda. Guevara-Sanchez got into the driver's seat of the van and defendant Garcia got into the passenger seat of the van. Both of the vehicles then left the parking lot.
The van and the Honda made their way to the Home Depot parking lot with the detectives following. As the van parked, Detective Coulombe activated the "red and blue take-down lights" of his unmarked vehicle, and Detective Robles provided backup. Guevara-Sanchez was driving the van and defendant Garcia was the front seat passenger. When Guevara-Sanchez got out, he started dialing his cell phone, ignoring instructions from Detective Coulombe. Defendant Garcia had a hands-free device in his ear. Two cell phones were on the ground near defendant Garcia. Detective Robles heard defendant Garcia speaking and recognized his voice as the second person on the phone and the impatient person at the restaurant. In the passenger floorboard area of the van where defendant Garcia had been sitting, Detective Coulombe found 448 grams of methamphetamine in two gallon-sized Ziploc plastic bags inside the shopping bag that Detective Rogers saw defendant Garcia carry into the restaurant and that Detective Robles saw on the floor next to defendant Garcia in the restaurant. A second shopping bag containing clothing was also found in the van. Detective Robles testified that the 448 grams of methamphetamine had a street value of $19,000 to $22,000 and was possessed for sale.
Detective Rogers and two other officers stopped the Honda. Guzman was the driver and defendant Huato was in the front passenger seat. A cell phone was found on the center console.
Defendant Garcia's fingerprint was found on the gallon-sized Ziploc plastic bag containing the methamphetamine.
An officer who transported the four suspects as well as two other unrelated prisoners to jail found one-inch-square plastic baggies containing small amounts of methamphetamine each, near the seat where Guevara-Sanchez had been sitting.
Defendant Huato called Linda Shell, a defense investigator, to testify. She visited the restaurant to take photos and interview employees. She went on three occasions at 5:30 p.m. The first two visits were in early December 2009. On all three occasions, she testified that there was "a pretty high noise level for an eatery." On her first visit, there was one other customer. On her second visit, there were two other customers. On her third visit, there were no other customers.
Defendant Huato contends that without the "volunteered hearsay, innuendo, speculation and prejudicial testimony" from Detective Robles, the other evidence was insufficient to support his convictions. He argues that such testimony violated statutory rules precluding hearsay and denied him the constitutional right to confront the witnesses against him. Defendant Huato further argues the trial court erred in denying his mistrial motion based thereon and in failing to instruct the jury to disregard the inadmissible, volunteered testimony of Detective Robles. Recognizing that he did not object to much of the evidence he now claims to be inadmissible and that his counsel also failed to request the instruction he now insists should have been given, defendant Huato claims counsel rendered ineffective assistance.
We will conclude the court erred in admitting certain hearsay testimony but that the error was not prejudicial. As to the claimed violation of the right to confrontation, we will conclude that the issue was forfeited by counsel's failure to make a specific and timely objection, and even if not forfeited, any error was harmless beyond a reasonable doubt. We further conclude that defendant Huato cannot complain of testimony admitted without objection and that sound tactical reasons for not objecting preclude a finding that counsel's failure to object constituted ineffective assistance. The trial court did not err in denying defendant Huato's mistrial motion based on Detective Robles's volunteered testimony, in light of defendant's decision to forego an instruction that would have cured any harm caused by the ...