California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of San Diego County No.
SCS276082, Dwayne K. Moring, Judge.
Quinlan, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Charles C. Ragland and Teresa Torreblanca,
Deputy Attorneys General, for Plaintiff and Respondent.
Acting P. J.
and appellant Sergio Ignacio Romo was charged by amended
information with unlawfully importing controlled substances
(i.e., heroin) into California from Mexico (Health & Saf.
Code, § 11352, subd. (a); count 1) unlawfully possessing
controlled substances (i.e., heroin) for sale (Health & Saf.
Code, § 11351; count 2); unlawfully importing controlled
substances (i.e., methamphetamine) into California from
Mexico (Health & Saf. Code, § 11379, subd. (a); count
3); and unlawfully possessing controlled substances (i.e.,
methamphetamine) for sale (Health & Saf. Code, § 11378;
count 4). The amended information further charged in counts 1
and 2 that the heroin weighed more than one kilogram (Heath &
Saf. Code, § 11370.4, subd. (a)(1)) and in counts 3 and
4 that the methamphetamine weighed more than four kilograms
(Health & Saf. Code, § 11370.4, subd. (b)(2)). A jury
returned guilty verdicts on all four counts and on the
enhancements. The court sentenced defendant to the term of
seven years, based on the low term of two years on count 3
and the five-year weight enhancement under Health and Safety
Code section 11370.4, subdivision (b)(2) alleged in
connection with count 3. The court either stayed the
remaining counts/enhancements or determined they ran
concurrent to count 3.
contends on appeal that the prosecutor committed misconduct
during closing argument when the prosecutor allegedly
improperly reversed the presumption of innocence; that the
court prejudicially erred when it admitted hearsay evidence;
that the People's experts should not have been allowed to
opine that defendant was not a "blind mule" (i.e.,
was unaware of the drugs in his car) when he crossed into the
United States from Mexico; and that defendant was entitled to
seven additional days of presentence credits.
explain, we agree defendant was entitled to seven additional
days of presentence credit. In all other respects, we affirm
the judgment of conviction.
and Border Protection Officer Jorge Castilla testified he was
working as a primary inspector at a booth at the Otay Mesa
Port of Entry on the morning of November 22, 2014, checking
vehicles coming into the United States from Mexico. Officer
Castilla contacted defendant, who was alone. Defendant was
driving a silver Ford Fiesta with Mexican plates
"ALB56-08." After contacting defendant for about
two minutes, during which time defendant handed Officer
Castilla a border crossing card and twice stated he had
nothing to declare, Officer Castilla directed defendant to
and Border Canine Enforcement Officer Steve Andaluz testified
he and his German Shepard, Zacky, contacted defendant's
car in secondary. As Officer Andaluz walked Zacky around the
car, Zacky "alerted to the passenger side rear door on
the rear rocker panel." Officer Andaluz testified a
rocker panel is the part "right underneath the door
where the door closes."
and Border Protection Officer Katheryn Gomez testified she
next searched defendant's car. On inspection, Officer
Gomez found a "black sticky substance covering a hole
that looked like it had been cut out" on the inside of
both the driver and passenger side rocker panels. After
completing her general inspection of the car, Officer Gomez
removed the driver and passenger seats to access the rocker
panel area. Officer Gomez then used a crowbar to expose an
opening she estimated was about six to eight inches wide and
about three inches high.
Gomez testified she found 10 "packages" inside the
driver side rocker panel and nine "packages" inside
the passenger side rocker panel. She estimated it took her
about three or four hours to remove all the packages from the
car because the packages were each attached to a
"string" that could be easily broken if it was
pulled too hard. After conducting a "presumptive test,
" Officer Gomez found 16 of the packages contained
methamphetamine and the remaining three contained heroin. The
parties stipulated that the heroin found in defendant's
car had a net weight of 2.961 kilograms, or 6.52 pounds, and
the methamphetamine had a net weight of 8.457 kilograms, or
of Homeland Security Special Agent Jeffrey Richardson
testified he interviewed defendant shortly after his arrest.
Defendant denied any knowledge of the drugs found in his car,
thus making him a so-called "blind mule." Agent
Richardson testified the term "blind mule" referred
to a person who drives across the border without knowing he
or she is smuggling drugs. As a result of the amount and
value of the drugs found in the car and their location, Agent
Richardson opined defendant was not a blind mule.
Richardson testified defendant "look[ed] up at the
ceiling and then roll[ed] his eyes to the back of his
head" when questioned about whether he knew there were
drugs in the car. Based on Agent Richardson's training,
he opined defendant's mannerisms in response to these
(and other) questions were consistent with those of an
untruthful person. In Agent Richardson's experience, when
drugs are found in a person's car it is not uncommon for
that person to deny knowledge of their presence.
the interview, defendant told Agent Richardson that he had
owned the car for about three months. Inside the car, Agent
Richardson found a Mexican vehicle registration card showing
defendant had registered the car in Mexico about a month
Richardson testified it was not uncommon for a person to
smuggle drugs across the border in his or her own car; that
typically a smuggler uses a car he or she has owned for only
a short period of time; and that a smuggler also usually
registers the car in his or her own name because
"generally, the person might not have a criminal
history, " "it makes it easier for them if they
don't have any past smuggling attempts, " and, if
they register in their own name, it is "generally easier
for them to cross the border."
the interview, defendant stated that he also owned a truck,
but that it had been stolen in Mexico four days earlier; that
he alone drove the Ford Fiesta; that he had driven the Ford
Fiesta from Mexico into the United States three times prior
to his arrest on November 22, which Agent Richardson
confirmed after running a records check; that he used the
Otay Mesa Port of Entry each time he crossed in the Fiesta
into the United States; and that his purpose in coming into
the United States that day was to buy a bicycle and a tablet
for his niece. According to Agent Richardson, defendant's
car had not been searched on the three previous occasions
defendant had driven it across the border.
informed Agent Richardson that, eight days before his arrest,
defendant had taken the Fiesta to a mechanic in Mexico for
brake service. When asked about his occupation in Mexico,
defendant stated he was a retired gas station attendant who
made about 2, 400 pesos a month. Agent Richardson testified
that 2, 400 pesos a month was about $160.
Richardson opined that a "usable quantity of
heroin" was about 0.05 grams; that when heroin is sold
"on the streets, " it typically is sold in a
quantity of a "tenth of a gram"; and that a tenth
of a gram typically costs between $50 and $60. Based on these
estimates and valuations, Agent Richardson further opined the
heroin found in defendant's car had a "street
value" of about $1.6 million. Using a similar analysis,
Agent Richardson estimated the "street value" of
the methamphetamine found in defendant's car was about
the amount of drugs in defendant's car, Agent Richardson
opined the drugs were possessed for sale and not for use.
Agent Richardson further opined that first-time smugglers
typically do not carry the amount of drugs found in
defendant's car because "[i]t's high-risk.
It's a lot of money for the drug organization to -- to
potentially lose for a first-time smuggler. [¶]
Generally, they start them out with marijuana. They're
willing to lose a little bit of marijuana compared to losing
$2 million's [sic] worth of heroin and
meth." According to Agent Richardson, usually a person
has to smuggle successfully up to 10 times before a person is
trusted with the amount of drugs found in defendant's
of Homeland Security Special Agent Wesley Petonak testified
that in his experience, the "overwhelming majority"
of people trafficking drugs across the border do so knowingly
for financial gain. Agent Petonak stated since 2011, he has
worked on a task force with about 10 others to handle blind
mule cases, which he described as cases involving people who
unwittingly smuggle drugs across the border. During this
four-year period, Agent Petonak personally investigated about
28 of such cases and he was aware of about 10 others during
this same time period. Given that there are thousands of
border drug busts every year, Agent Petonak opined the
percentage of blind mule cases is "very low, " or
one percent or less of the total drug busts.
Petonak discussed a "typical" blind mule case:
often blind mules are United States citizens because
"they are subject to less scrutiny on an immigration
inspection coming across the border. [¶]
California-plated vehicles. [Sic.] Because a
California plate is under less scrutiny coming across the
border than perhaps a Baja plate or an out-of-state plate.
[¶] And then also the overwhelming majority -- I'd
say more than 99 percent -- have been vehicles in the SENTRI
program, which is the Secured Electronic Network for
Travelers Rapid Inspection. S-E-N-T-R-I. [¶] Which, if
you're unfamiliar with the program, it allows people that
are trusted travelers to come through with less
response to why people in the SENTRI program are targeted as
"mules, " Agent Petonak stated that the wait time
in the SENTRI lanes is about five to 10 minutes, whereas, on
some days, the general border wait can be up to four hours;
that people in SENTRI tend to cross the border frequently and
in a set or predictable pattern, such as for work; and that
typically, drug trafficking organizations attached magnets to
packages of drugs and place the packages underneath cars.
team concludes a person was in fact a blind mule, Agent
Petonak stated they will ask the person's permission to
follow his or her car to his or her place of business in what
he termed was a "controlled delivery" to catch
those responsible for placing the drugs in the car. Agent
Petonak noted once the car with the drugs is parked,
typically two younger males, usually in their 20's, will
arrive to pick up the drugs and be arrested.
Petonak testified he has never had a blind mule case where
the drugs were "embedded" into the car, such as in
the instant case. Instead, in every blind mule case he has
worked on, the drugs were placed in a location where they
could be removed quickly, usually within a matter of seconds.
According to Agent Petonak, the drug involved in the
"overwhelming majority" of blind mule cases is
marijuana, because using a blind mule rather than a
"paid mule" is risker and marijuana is less
expensive on the street than drugs such as methamphetamine,
heroin or cocaine. However, in some instances when the drug
being transported involves "hard narcotics, " Agent
Petonak testified the drug trafficking organization will also
attach a GPS tracking device in order to keep
"tabs" on the location of the drugs.
Petonak opined that defendant was not a blind mule. Agent
Petonak reached this conclusion based on where the drugs were
found in defendant's car; the fact there were two
compartments in the car to hide the drugs, which he believed
would have taken up to a day or more to make; and the amount
of time it would have taken to place the drugs inside each
compartment. According to Agent Petonak, ...