People v. Burroughs

THE PEOPLE, Plaintiff and Respondent, v. JOHN JOSEPH BURROUGHS, Defendant and Appellant.

C088032

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

March 17, 2020

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE014110)

Following a jury trial, defendant John Joseph Burroughs was convicted of one count of possession for sale of methamphetamine in violation of Health and Safety Code section 11378, and one count of transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). The trial court sentenced defendant to five years in state prison and imposed various fees and fines.

Defendant appeals, arguing the trial court erred in denying his motion to suppress evidence seized in a warrantless search of his car. Defendant also challenges: (1) the sufficiency of the evidence that he possessed and transported methamphetamine for sale; (2) the exclusion of cross-examination regarding the circumstances giving rise to the traffic stop; (3) the denial of his request to recall a witness; (4) the trial court's failure to sua sponte instruct the jury on simple possession as a lesser included offense of possession of methamphetamine for sale; (5) the denial of his request to unseal jury information; and (6) the imposition of various fees and fines. Defendant also asserts ineffective assistance of counsel and cumulative error. Finding no error, we affirm.

I. BACKGROUND

Sacramento County Sheriff's Deputies Eric Del Real and Patrick Walker were on patrol in South Sacramento in the early morning hours of July 21, 2016. Del Real effected a traffic stop of an Oldsmobile Cutlass (the details of which are discussed below) and made contact with defendant, the car's driver and sole occupant. Del Real confirmed that defendant was on post-release community supervision (PRCS) and searched the car. He found an eyeglass case under the driver's seat containing two sandwich bags filled with pills. Based on his training and experience, Del Real believed the pills were ecstasy. Deputy Walker conducted a "NIK" field test on one of the pills and observed a bluish color, indicating a positive result for amphetamine, a chemical compound found in both ecstasy and methamphetamine.

Defendant was arrested and transported to jail. During a booking search, he was found to be carrying two wallets. One of the wallets contained $2,000 in denominations of $100 and $50 bills. The other contained an envelope with handwritten notations reflecting names or nicknames and amounts of money.¹ Based on their training and experience, Deputies Del Real and Walker believed the envelope was a "pay/owe" sheet of the kind used by drug dealers to keep track of drug transactions. Del Real booked the pills into evidence and prepared a police report estimating that 70 pills had beenrecovered; approximately 50 from one sandwich bag and 20 from the other. Del Real also indicated that the pills were ecstasy.

Defendant was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378—count one) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)—count two). The information further alleged that defendant had sustained a prior robbery conviction under the Three Strikes Law (Pen. Code, §§ 667.5, subd. (b)), a prior drug conviction for possession for sale of ecstasy (Health & Saf. Code, § 11370.2, subd. (c)), and a prior prison term for possession for sale of ecstasy (Pen. Code, § 667.5, subd. (b)).

Defendant pleaded not guilty and denied the allegations. He then moved to suppress the evidence obtained as a result of the vehicle search. The trial court conducted an evidentiary hearing and denied the motion.

The matter was tried to a jury in August 2018. During the trial, Deputies Del Real and Walker testified to the facts described above. John Della-Santina, a criminalist at the Sacramento County District Attorney's Laboratory of Forensic Services, testified that he examined two baggies of pills. One of the baggies contained 64 round green tablets and 36 round gray tablets. The other baggie contained 15 round green pills, 10 round gray pills, 12 rectangular green pills, 7 rectangular gray pills, and 6 rectangular white pills. Della-Santina explained that he analyzed each type of pill, and confirmed the presence of methamphetamine in all but the rectangular white pills, which contained caffeine.

Detective David McEntire testified as an expert in the possession of controlled substances for sale. McEntire explained that methamphetamine comes in a variety of forms, including crystals, crumbs, liquids, capsules, and pills. Methamphetamine pills are uncommon, in McEntire's experience, because they do not allow customers to see what they are getting before they buy, and do not deliver a methamphetamine high as effectively or efficiently as other forms of the drug. Even so, McEntire noted thatmethamphetamine pills may be seen by drug dealers as easier to distribute and hide from law enforcement than other forms of methamphetamine.

McEntire estimated that a single dose would be somewhere between one to three pills. He further estimated that a single dose of methamphetamine would cost $4. McEntire noted that methamphetamine users typically do not carry more pills than they intend to use because they do not want to share or be mistaken for a dealer. Based on a hypothetical involving the same number of methamphetamine pills, in similar packaging, along with $2,000 in cash and handwritten notes similar to a pay/owe sheet, McEntire opined that the pills were possessed for the purpose of sale.

After the close of the prosecution's case, the defense sought to recall Deputy Del Real. The trial court denied the request, and the defense rested. Following closing arguments and jury instructions, the jury found defendant guilty as charged. In a bifurcated proceeding, the trial court found the prior strike conviction, drug conviction, and prior prison term to be true.

Defendant appeared for judgment and sentencing on September 21, 2018. In anticipation of the sentencing hearing, the probation department prepared a report recommending the imposition of the following fees, fines, and assessments: a $2,100 restitution fine (Pen. Code, § 1204.4, subd. (b)), a suspended $2,100 parole revocation restitution fine (Pen. Code, § 1202.45), a $100 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), plus $260 in related penalties and assessments, a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), a $402 main jail booking fee (Gov. Code, § 29550.2), (6) a $99 main jail classification fee (Gov. Code, § 29550.2), an $80 court operations assessment (Pen. Code, § 1465.8), a $60 court facilities assessment (Gov. Code, § 70373), a $702 fee for the investigation and presentence report, a $46 fee for the monthly cost of probation, a $25 fee for urinalysis testing, and a criminal impact fee equal to 20 percent of the base fine amount (Pen. Code, § 1465.7, subd. (a)).

At the sentencing hearing, defense counsel moved to strike defendant's prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). In connection with the Romero motion, defense counsel noted that defendant had been working fulltime as a custodian for the State of California for approximately six months, a situation that appears to have ended when he was arrested and incarcerated for driving under the influence in an unrelated case. Defense counsel then moved to strike the above-enumerated fines, fees, and assessments, citing defendant's inability to pay. Defense counsel elaborated, "[Defendant's] in prison, and he doesn't have sufficient savings to really address the finances. These [fines] add up to thousands of dollars. To a person who is likely going to prison, then to be released and to have all these financial burdens placed upon him, this is—it's a serious burden. It's not something he can—that we can expect for a person to realistically do."

Following further argument, the trial court struck the prior strike conviction and sentenced defendant to an aggregate term of five years. Defendant waived recitation of the fines, fees, and assessments, which were ultimately imposed as follows: a $300 restitution fine (Pen. Code, § 1204.4, subd. (b)), a $300 parole revocation restitution fine (§ Pen. Code, § 1202.45), which the court stayed, a $80 court operations assessment (Pen. Code, § 1465.8), and a $60 court facilities assessment (Gov. Code, § 70373).

This appeal timely followed.

II. DISCUSSION

A. Motion to Suppress

Defendant challenges the denial of his motion to suppress on two grounds. First, he argues the prosecution failed to show the search was justified by an exception to the warrant requirement, as there was no substantial evidence that Deputies Del Real and Walker knew that defendant, a person on PRCS, was the driver of the Oldsmobile when they stopped him. Second, he argues the traffic stop was arbitrary and capricious,notwithstanding his PRCS status, because Del Real and Walker had no reason to run his license plate in the first place. Neither of these contentions has merit.

1. Additional Background

Deputy Walker testified for the prosecution at the hearing on the motion to suppress. Walker recounted that Deputy Del Real was driving on the morning of July 21, 2016, and he was sitting in the passenger seat, operating the patrol car's mobile data computer.

Walker recalled that the patrol car was travelling eastbound on a narrow, two-lane street, heading towards a major intersection. It was dark, but the area was illuminated by street lights and ambient light from the intersection. As they...