People v. Bodiford

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BODIFORD, Defendant and Appellant.

C077096

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)

October 26, 2018

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 62119180A)

Defendant Anthony Bodiford was convicted after a jury trial of two counts of possession of marijuana for the purpose of sale. (Health & Saf. Code, § 11359; counts one & three.)¹ Count one related to marijuana found in the apartment in which defendant resided with his son and his son's girlfriend. Count three was related to marijuana found in a search of defendant's car two days later, after defendant voluntarily traveled in it to the police department in an attempt to secure return of the marijuana taken from theapartment. The trial court sentenced defendant to 60 days in county jail and five years of formal probation.

Defendant contends the trial court erred: (1) in denying his motion to suppress the marijuana found in the apartment and his statements made to police at the time of the seizure; (2) in denying his motion to suppress the marijuana found in his car at the police station as well as the statements defendant made to police thereafter; and (3) in failing to instruct the jury sua sponte on simple possession of marijuana as a lesser included offense.

We conclude the trial court erred in denying the motion to suppress evidence found in the hallway bedroom in the apartment, as well as the statements defendant made while at the apartment. We further conclude that the error was not harmless as to count one. However, as to the marijuana related to count three and the statements defendant made at the police department, we conclude that any taint from the search of the hallway bedroom closet as well as any taint from the statements defendant made at the apartment is attenuated and the suppression of the evidence related to count three was properly denied. We also conclude that the error related to the admission at trial of the marijuana seized from the hallway bedroom closet and statements defendant made to the police concerning that marijuana was harmless beyond a reasonable doubt as to count three.

Accordingly, we reverse defendant's conviction on count one, but affirm his conviction on count three.

FACTUAL AND PROCEDURAL BACKGROUND

The Trial Evidence

The Search and Statements at the Apartment

City of Roseville Police Officer Marc Kelley testified that on January 13, 2013, he went to defendant's apartment in Roseville to do a civil standby. Kelley met Riley Bongiovanni at the manager's office and accompanied her to the apartment so that she could pick up some of her belongings. At that time, defendant was living in theapartment with his son, codefendant Derek Bodiford,² his son's girlfriend, Bongiovanni, and his two-year-old granddaughter. The apartment was in Bongiovanni's name.³

The apartment had two bedrooms, a master bedroom, and a hallway bedroom. Bongiovanni and her daughter were staying in the master bedroom. Derek was sleeping on the couch because he and Bongiovanni were not getting along at the time. Bongiovanni testified that defendant was staying in the hallway bedroom, which he was renting from her.

At some point, Kelley went into the hallway bedroom and noticed a jar containing marijuana in the bedroom closet. He described the jar as a "Mason jar." However, he did not describe the capacity or volume of the jar or the amount of marijuana in the jar. Kelley also found paperwork bearing the name of Derek Bodiford in the same closet. He called a detective to assist him in further investigation. On cross-examination, Kelley testified he determined that defendant stayed in the bedroom, but he did not say when he made that determination relative to the search of the hallway bedroom.

Detective Chad Baumann testified that he was called to defendant's apartment to assist in the marijuana investigation. He was briefed by Kelley on what had taken place before his arrival and then he commenced a search of the apartment. During his search of the apartment, Baumann observed marijuana in three locations: the closet in the hallway bedroom, the hallway bathroom, and the living room coat closet.

In the hallway bedroom closet, there was an ice chest full of plastic bags containing marijuana, a plastic tub full of plastic bags containing marijuana, a jar containing marijuana, and a five-gallon bucket containing marijuana shake. Baumann described the jar as being plastic and about eight inches high. He did not characterizewhat type of jar it was; nor did he describe the capacity or volume of the jar or describe how much marijuana was contained therein. Also found in the hallway bedroom were papers with both defendant's name and Derek's name.

In the hallway bathroom, there were eight glass jars containing marijuana. Baumann described these jars as "Mason jars," "a standard jam jar, maybe five . . . inches or so." In the living room coat closet, there was a standard size paper grocery bag containing marijuana. When asked how the marijuana in the paper bag was packaged, Baumann said, "I don't specifically recall that paper bag, how it was packaged." The record contains no evidence of the amount of marijuana contained therein. There was no marijuana or drug-related evidence found in the master bedroom.

Baumann interviewed defendant in the living room. Defendant told Baumann that he resided in the hallway bedroom and items he described to Baumann as being in that room matched what was in the room. Defendant said he had moved in within the last three weeks and had been previously living in Redding. Defendant also said that Derek had possessions in the room. Baumann asked defendant where the marijuana in the apartment came from, and defendant said his brother and father had a grow in Redding for their marijuana recommendations. Initially, defendant stated that all of the marijuana in the apartment belonged to him. Baumann confirmed that defendant was talking about the marijuana found in the bedroom, bathroom, and living room coat closet. Later, defendant stated that some of the marijuana belonged to his brother and his father and that he was just storing it for them. The record does not reflect whether defendant told Baumann what portion of the marijuana found in the residence he was storing for them.

Defendant said his marijuana recommendation was at his cousin's house in Elk Grove. He claimed that his personal recommendation was for 99 plants and five pounds of marijuana. He additionally claimed that he used a quarter ounce of marijuana each day. Baumann testified that he did not believe defendant used that much marijuana each day because, based on his experience, "that's an extremely high amount." Baumanntestified that the average marijuana user will use around two grams each day. Individuals have previously told him that they use a quarter ounce a day, which is seven grams, but he generally discovers later that they did not use that amount on their own.

When asked by Baumann whether he had a job, defendant responded that he was unemployed and had recently lost his job, but earned money to pay for rent from odd jobs and his mother gave him $2,000, with which he paid $1,100 rent for the month. Baumann further asked defendant how much marijuana he estimated was in the apartment. Defendant responded that he was not sure. After Baumann asked him how he knew he was within his recommendation limit if he did not know how much marijuana was in the apartment, defendant stated he believed there was around five pounds in the apartment.

Baumann asked defendant if he could have someone bring his recommendation to the apartment. Defendant said no, but that he could go to Elk Grove to get it. Baumann explained that they were going to collect the marijuana and take it to his office. He gave defendant his office phone number and told him "here's my phone number, give me a call, bring in your recommendation, and the marijuana may be released to you." He informed defendant that, if he brought his recommendation to the police station, the marijuana may be released to him. Defendant was not arrested, but Derek was arrested and taken into custody.

A subsequent search of the cell phone recovered from Derek at the time of his arrest revealed numerous text messages related to marijuana sales. Based on those messages, Baumann opined that Derek was selling marijuana. Among the messages was a December 20, 2012, text message to defendant's phone number saying, " 'I need dank.' " Dank is a slang term for good quality or potent marijuana. On January 3, 2013, there was a text message from defendant's phone to Derek's phone stating, " 'How did we DN legs?' " Baumann testified that the response from Derek's phone was "$650, youkeep a pound of Purp." "Purp" is a strain of marijuana, probably "Purple Kush or Purple Haze," according to Baumann.

Detective Andrew Palmore, a narcotics detective, testified that he examined the marijuana collected from defendant's apartment at the police department. Inside the ice chest there were 15 bags of marijuana along with loose marijuana at the bottom of the ice chest. The marijuana in the ice chest weighed a total of about six pounds. The plastic tub contained 1.88 pounds of marijuana in separate plastic bags. There were eight glass jars, each containing various amounts of marijuana ranging from less than one ounce to around two ounces for a combined weight of about one pound. Not including the unusable material, there was just over 10 pounds of useable marijuana found in the apartment. Palmore did not mention the plastic, eight-inch jar containing marijuana Baumann seized from the bedroom closet....