People v. Hernandez

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

A144154

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

April 26, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 51414754)

A jury convicted Anthony Hernandez of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and transporting methamphetamine (§ 11379, subd. (a)).¹ The trial court found Hernandez's prior conviction allegations true (§ 11370.2, subd. (c), Pen. Code, § 667.5, subd. (b)) and sentenced Hernandez to 10 years in county jail.

Hernandez appeals. He contends: (1) the prosecutor committed misconduct during closing argument by "vouching" for a testifying police officer and by "impugn[ing] the integrity of defense counsel"; (2) insufficient evidence supports the convictions; (3) he cannot be convicted of possessing and transporting "the same substance"; and (4) the magistrate's exclusion of co-defendant Desiree Bello from his preliminary hearing violated his "right to a public trial."² He also argues — and the Attorney General agrees — he is entitled to one additional day of presentence custody credit.

We modify the judgment regarding Hernandez's custody credit. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged Hernandez with possessing methamphetamine for sale (§ 11378) and transporting methamphetamine (§ 11379, subd. (a)). The prosecution also alleged Hernandez had numerous prior convictions (§ 11370.2, subd. (c), Pen. Code, § 667.5, subd. (b)). The magistrate excluded Bello from Hernandez's preliminary hearing and held Hernandez to answer to the charges. Hernandez moved to set aside the information, arguing Bello's exclusion violated his right to a public trial. The trial court denied the motion and this court denied Hernandez's petition for writ relief.

Trial

On a June 2014 evening, Contra Costa County Sheriff's Deputy Valerie Vradenburg and her partner, Deputy Kristy Trindade, stopped a gold Lexus with expired registration tags. Hernandez and Bello were in the rear passenger seats. Hernandez seemed nervous and repeatedly put his hand in the pocket of his shorts. He "was breathing faster than normal," his face was turning "red," and his voice was trembling. Deputy Trindade learned Hernandez had an outstanding warrant and asked him to step out of the car. As Deputy Vradenburg took Hernandez out of the car, she saw "a small bag of a white crystalline substance on the back seat right where he was sitting."

Deputy Trindade ordered Bello to get out of the car and noticed two golf-ball-sized bulges on Bello's hips. Deputy Trindade handcuffed Bello and searched her pants. On Bello's right hip, Deputy Trindade found six baggies of suspected methamphetamine "inside of a big Ziploc baggie." On Bello's left hip, Deputy Trindade found "two individual baggies" of suspected methamphetamine. Testing confirmed the eight baggies contained 87 grams of methamphetamine. According to Deputy Trindade, the average methamphetamine dose is one-tenth of a gram, meaning Bello "possessed over a thousand uses of methamphetamine on her person that day."

Deputy Trindade searched the car. In the passenger compartment, she found "another small Ziploc baggie of a crystal-like substance along with a black wallet"containing Hernandez's identification and $1,380, comprised of $100, $20, and $10 bills.³ In the trunk, Deputy Trindade found men's clothing. She also found a laptop bag containing "multiple . . . empty sandwich baggies" similar to those Bello possessed, and computers and iPhones.

Steven Lynn, an inspector in the narcotics and gang unit of the Contra Costa District Attorney's office, testified as an expert on possession of methamphetamine for sale. Inspector Lynn testified as an expert more than 30 times in prosecutions for possession of methamphetamine for sale. Before working in the District Attorney's Office, Inspector Lynn was a deputy sheriff for over 15 years. As a narcotics investigator, Inspector Lynn made "well over a hundred" arrests in suspected methamphetamine possession for sale cases, and had "hundreds" of conversations with suspected methamphetamine users about how and where they purchase methamphetamine. Inspector Lynn purchased methamphetamine at least 30 times while working undercover. He investigated at least 25 prosecutions where a male and female worked together to distribute methamphetamine and the male "purposely has the female carry the methamphetamine . . . the males . . . in these types of situations are the dominant person, they'll put it off on the female so that they don't have to take the rap." Inspector Lynn described two scenarios where male and female suspects divided responsibilities exactly like Hernandez and Bello.

When determining whether methamphetamine is possessed for sale, Inspector Lynn considered "the weight of the methamphetamine, how it's packaged, additional packaging . . . . [¶] [S]ometimes you have users that are just pure users, and sometimes you have users that not only use but sell. That's quite common because of the cost of using methamphetamine." Inspector Lynn opined the methamphetamine was possessed for sale based on: (1) the total weight of the methamphetamine; (2) the methamphetamine's street value; (3) the way the methamphetamine was packaged;(4) the large of amount of cash found in Hernandez's wallet, in denominations consistent with drug sales; (5) the empty baggies — i.e. "extra packaging" — which could be used to further subdivide the methamphetamine; and (6) the presence of electronics, items "oftentimes . . . traded for methamphetamine."

In 2004 and 2011, Hernandez was convicted of possessing methamphetamine for sale. In 2009, a Concord police officer pulled over a car containing packages of marijuana and methamphetamine, digital scales, iPods, and cell phones. Hernandez and others were in the car, and Hernandez had $1,005 in cash.⁴

Verdict and Sentence

The jury convicted Hernandez of possessing methamphetamine for sale (§ 11378) and transporting methamphetamine (§ 11379, subd. (a)). The court found the prior conviction allegations true (§ 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b)), sentenced Hernandez to 10 years in county jail, and awarded him 217 days of presentence custody credit.

DISCUSSION

I.Hernandez's Prosecutorial Misconduct Claim Fails

Hernandez claims the prosecutor committed misconduct during closing argument by vouching for Inspector Lynn and by impugning defense counsel. We disagree.

A. Background

The prosecutor argued it is "common in [the drug-dealing] industry for the man to be the enforcer, to carry the cash, to separate himself from the drugs and pin the drugs on somebody else. [¶] Mr. Lynn told you the reasons why he learned this happens frequently, and he has investigated many cases where the scenario was exactly the same as this. And I'm asking you to take very seriously Mr. Lynn's testimony because he iscoming from a place of great experience in telling you that." The court overruled defense counsel's "improper vouching" objection.

Near the end of her closing argument, the prosecutor told the jury "the defense is going to have the opportunity to give their closing arguments if they choose to do so. I want to ask you to make sure that the defense arguments are based on evidence and testimony received in this trial." In particular, the prosecutor asked the jury to "question any unreasonable alternatives that may be posed to you, such as Ms. Bello was going to use all of that methamphetamine or Mr. Hernandez didn't know that the methamphetamine that was bulging out of Ms. Bello's pants was there." The prosecutor asked the jury "to keep an eye out for the defense throwing out distraction arguments, arguments that aren't really relevant to the ultimate issues here." Bello's attorney objected as "impugning counsel," but the court overruled the objection. The prosecutor then reminded the jurors to "use your common sense."

B. The Prosecutor Did Not Commit Misconduct

" ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.]" ' [Citation.] Even when the misconduct does not attain that level, it may be error under state law, but ' " 'only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, . . . ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " ' " (People v. Mendoza (2016) 62 Cal.4th 856, 905.)

We reject Hernandez's contention that the prosecutor improperly vouched for Inspector Lynn.⁵ "The prosecutor is generally precluded from vouching for the credibility of her witnesses, or referring to evidence outside the record to bolster their credibility or attack that of the defendant. [Citations.]" (People v. Anderson (1990) 52 Cal.3d 453, 479 (Anderson).) Here, "the prosecutor limited her remarks to facts of record, namely" Inspector Lynn's experience investigating similar cases where male and female suspects worked together to sell methamphetamine. (Id. at p. 479.) The prosecutor's " 'vouching' " was permissible as "clearly based on inferences reasonably drawn therefrom, rather than on...