People v. Romo

         APPEAL from a judgment of the Superior Court of San Diego County No. SCS276082, Dwayne K. Moring, Judge.

          Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala 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.

          BENKE, Acting P. J.

         Defendant 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.

         Defendant 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.

         As we explain, we agree defendant was entitled to seven additional days of presentence credit. In all other respects, we affirm the judgment of conviction.

         FACTUAL BACKGROUND

         A. Prosecution Case

         Customs 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 secondary inspection.

         Customs 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."

         Customs 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.

         Officer 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 18.64 pounds.

         Department 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.

         Agent 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.

         During 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 earlier.

         Agent 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."

         During 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.

         Defendant 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.

         Agent 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 $660, 000.

         Given 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 car.

         Department 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.

         Agent 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 inspections."

         In 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.

         If the 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.

         Agent 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.

         Agent 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, ...