People v. Bush

7 Cal.App.5th 457

213 Cal.Rptr.3d 593

The PEOPLE, Plaintiff and Respondent,

v.William David BUSH, Defendant and Appellant.

A140589

Court of Appeal, First District, Division 4, California.

Filed January 11, 2017

As Modified on Denial of Rehearing February 8, 2017

Certified for Partial Publication.^*

Counsel for Appellant: Walter K. Pyle, Berkeley, under appointment by the First District Appellate ProjectCounsel for Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allan Yannow, Deputy Attorney General

Rivera, J.Defendant William David Bush appeals a judgment entered upon a jury verdict finding him guilty of driving with a suspended license and of receiving and acquiring proceeds knowing them to be derived from a controlled substance offense with the intent to conceal those proceeds and avoid a transaction reporting requirement. He contends on appeal that he did not knowingly and intelligently waive his right to counsel; that there was insufficient evidence he intended to conceal the nature or source of the money; that he could not be convicted for receiving or acquiring proceeds from sales that he allegedly conducted himself; and that the jury should have been instructed on the elements of the underlying controlled substance offense. We shall affirm the judgment.

I. BACKGROUND

We limit our recitation of the facts to those necessary for resolution of the issues on appeal.

On October 6, 2012, California Highway Patrol (CHP) Officer Nicole Brigstock stopped defendant for speeding in a black Mercedes sedan that was missing a front license plate. Officer Brigstock had been a CHP officer for more than 10 years at the time, had attended drug recognition training the year before, and in the course of her work had come in contact with marijuana specifically two or three times a week. She was therefore familiar with the distinctive smell of marijuana and recognized it as she walked up to defendant's vehicle after stopping him. The smell was intense and when she leaned her head in the passenger window, she could tell it was coming from the vehicle.

Officer Brigstock told defendant she could smell marijuana coming from his car and asked for his car keys, license, registration, and insurance. Defendant handed her an Arizona driver's license, explaining that he lived both in Arizona and with his parents in Santa Rosa and moved all the time. He said the marijuana smell probably was coming from him because he had been touching marijuana earlier that day. Officer Brigstock saw leafy particles that she recognized as marijuana on the center console and passenger side floor area of the car. She asked defendant to get out of the car and noted a "very intense" smell of marijuana on his person when he did so.

Officer Brigstock requested backup and then searched the vehicle. She found $5 bills in the side pockets and on the floorboard near the back seat, two cell phones in the center console, and a binder with papers. In the trunk, she found a big black suitcase and searched the contents. Among the clothing inside, stuffed in a pant leg, she found a plastic parcel. It was four feet long, heat sealed on all sides, and contained 10 individually sealed packs of money, mainly in smaller denominations, $1, $5, $10, and $20 bills. Defendant said the total amount was $100,000 and that it came from his automated teller machine (ATM) business, Mari Marc, in Puerto Vallarta. Officer Brigstock found business cards for Mari Marc but no other documents proving the money came from an ATM. Asked why he was not transporting the money in an armored truck, defendant said it was his life savings, and he wanted to keep it safe.

Officer Brigstock checked defendant's Arizona license and learned it was no longer good. She checked if he had a California driver's license and learned it had been suspended. Defendant said he had thought both licenses were good.

Although she found no marijuana, Officer Brigstock noted the car still smelled overwhelmingly of it, with all doors opened. She requested a canine unit, thinking marijuana might be hidden in the car's body. Taking another look at the papers on the front seat, she noticed a reminder on an August calendar, "Go to DMV and fix license." Questioned about it, defendant confessed he knew his California license was suspended but insisted he had thought his Arizona license was still good.

By this time, CHP Officer Brian Wood had arrived as backup. He had been a CHP officer for 10 years and had considerable experience with investigations involving raw unprocessed marijuana. He noticed "a strong odor of marijuana" coming from defendant's vehicle and saw small particles on the vehicle floor and carpeting that he recognized as marijuana.

Santa Rosa police officer and canine handler, Patrick Gillette, arrived next with his police dog, Utz, who is trained and experienced in detecting the odor of narcotics, including marijuana. Officer Gillette had 22 years of experience, including about six years working in narcotics investigations and had seen marijuana "thousands of times." As soon as he got out of his car, he noticed "the overwhelming smell of raw marijuana."

Officers Brigstock and Wood briefed Officer Gillette and then returned the suitcase with the money to the trunk of defendant's car, closing the trunk. Officer Gillette got Utz out of his car and brought him to the trunk, instructing him to search for drugs. Utz immediately became excited and signaled he had detected narcotics by scratching on the trunk. Allowed to search inside defendant's vehicle, Utz gave the same signal at the glove box and on the driver's seat. Standing just outside the car, Officer Gillette could smell marijuana also.

One of the officers then removed the money from the suitcase, placing it about 25 yards down a nearby driveway, upwind of defendant's car. Bringing Utz to the start of the driveway, Officer Gillette commanded him to search again and removed his leash. Utz worked his way to the money and signaled that he detected narcotics. Officer Wood moved the money farther down the driveway, and Utz again worked his way to it and signaled he smelled narcotics on it. Utz had a documented accuracy rate of more than 97 percent in detecting narcotics.

At this point, concluding the money "was probably from selling controlled substances," Officer Brigstock called a narcotics taskforce to investigate. Narcotics detective Bryan Londo of Sonoma County Sheriff's Department responded. He had 17 years' experience as a peace officer and specialized narcotics training. Inspecting defendant's vehicle, he too noticed an odor of raw marijuana and saw particles inside that he recognized as marijuana.

Detective Londo then went through the papers on defendant's passenger seat. He found receipts for $1,900 in electronic money transfers, which he knew people use to purchase narcotics because it leaves no paper trail. He found a legal pad containing the notes "SD" with a number—for example SD 5 and SD 20—which he understood as a common drug sellers' shorthand for tracking sales of specified pounds of Sour Diesel, a particular marijuana strain. He found a shopping list for fertilizer, bloom enhancer, and other items that can be used to grow marijuana, and he found a cash receipt for about $4,000 spent on wood, part of a gate, and a privacy lattice, supplies the detective had seen used to conceal tall outside marijuana grows.

Detective Londo read defendant his Miranda¹ rights, and defendant agreed to answer questions. He repeated that the money came from his business of ATMs in Mexico and was his life savings, explaining that he liked to keep it safe in the trunk of his car. After Detective Londo finished questioning defendant, Officer Brigstock arrested him for driving while unlicensed.

When the money found in defendant's car later was counted, it totaled $46,959. In reviewing the papers taken from the car, Detective Londo found a $5,000 cashier's check from a Tristan Von Junsch made out to Tesla Motors and another $5,000 check to defendant from a business called Web Tab. A Web Tab representative later confirmed the check refunded cash that defendant had put on account for future purchases.

Detective Londo subpoenaed defendant's bank records for the past two years and found cash deposits totaling $113,000. He saw several purchases from a hydroponics store, which sells equipment and supplies that can be used to grow marijuana. A forensic download of the two cell phones found in defendant's car revealed that the text messages had been erased.

Interviewed again at the county sheriff's office, defendant first said his mother had given him the money found in his car and later said he earned it from his ATM business. He presented documents in Spanish that Detective Londo could not read and said he dealt mainly in cash, which is hard to track. He told Detective Londo he had not filed tax returns for at least two years.

Detective Londo searched the Internet for information on a business named Mari Marc and checked with the State Board of Equalization. The latter had no permits or sales tax documentation for such a business, and the Internet search yielded a single website, possibly Swedish or German, apparently launched in 2007, containing no contact information.

During the investigation, Detective Londo observed defendant driving a new Jeep Cherokee and obtained the records of that purchase and of the Mercedes defendant had been driving. In both instances, the records reflected large cash deposits, $20,000 for the Mercedes and $10,000 for the Jeep. Detective Londo observed that defendant's use of cash meant there was no record of the money's source. Based on his investigation, he concluded defendant had acquired the money found in his car from marijuana sales. Defendant did not testify at trial.

The jury found defendant...