The People v. Myrie

THE PEOPLE, Plaintiff and Respondent,

v.STOLLMEYER MYRIE et al., Defendants and Appellants.

No. B218790

No. KA086226

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Filed 1/18/11

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEALS from judgments of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed with modifications.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant Stollmeyer Myrie.

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant Kirk Powell.

Lauren E. Eskenazi for Defendant and Appellant Reginald Ward.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Lance E. Winters and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants, Stollmeyer Myrie, Reginald Ward and Kirk Powell, appeal from their convictions for marijuana possession for purposes of sale. (Health & Saf. Code, § 11359.) Mr. Ward was also convicted of transporting marijuana. (Health & Saf. Code § 11360, subd. (a).) Mr. Ward argues the trial court improperly: denied his suppression of evidence motion; failed to excuse a juror; and instructed the jurors with a modified version of CALCRIM No. 372. Mr. Myrie argues the evidence was insufficient to sustain his conviction and the trial court improperly admitted evidence of his prior offenses. All defendants argue that they are entitled to additional presentence conduct credits pursuant to Penal Code¹ section 4019. Mr. Ward and Mr. Powell join in the arguments of their codefendants where they accrue to their benefit. We affirm the judgments with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 2 p.m. on March 9, 2009, Los Angeles County Sheriff's Detective William Campbell began watching a residence at 1512 Cedarbreak Avenue in Rowland Heights. Detective Campbell saw a Ford sport utility truck in the driveway. At approximately 4:20 p.m., Detective Campbell saw Mr. Ward and Mr. Powell come out of the house. Both Mr. Ward and Mr. Powell got into the Ford truck and drove away. Soon thereafter, a green Toyota automobile pulled into the driveway of the house. Anthony Howell² was driving the Toyota. Mr. Howell opened the garage door with a remote control. Once the garage door wasopen, Detective Campbell saw a white van with advertising across the back doors inside the garage. Mr. Howell then closed the garage door, parked the Toyota in front of the house and got out of the car. Mr. Howell walked inside the house. A short time later, the Ford truck returned to the driveway. Mr. Ward and Mr. Powell were still in the Ford. The driver immediately pulled out of the driveway and drove away. Within 10 minutes the Ford truck returned to the driveway. Detective Campbell continued to watch the house until approximately 6:30 p.m.

Detective Campbell resumed watching the house at approximately 8:10 a.m. on March 10, 2009, the next morning. The Ford truck was still in the driveway of the home. At approximately 10:15 a.m. the green Toyota parked in front of the house. Mr. Howell and Mr. Myrie got out of the Toyota and went into the house. At approximately 12:15 p.m., Mr. Powell came out of the house. Mr. Powell got into the Ford truck and backed into the street. The garage door opened immediately thereafter. The white van was then backed out of the garage and driven away. Detective Campbell ordered the white van stopped by other deputies. Detective Campbell also requested that a drug sniffing dog come to the scene. Detective Rob DeYoung continued to watch the house.

Detective Campbell drove to where the white van was stopped. An investigator identified only as Detective McBride walked around the van with a dog. The dog alerted at both the back bumper and the passenger's sliding side door. After the sliding door was opened, the dog alerted to the eight boxes inside the van. Detective Campbell cut a hole in the top of one of the boxes. The back side of the box had foam glued to it. Foam peanuts were inside the box. Amongst the foam peanuts was a black package wrapped in grease and newspaper. Inside the black package was marijuana. All eight boxes contained the same layers and black wrapped marijuana. The marijuana bricks weighed approximately 30 pounds each. Detective Campbell found a rental agreement inside the van. The van was rented by Mr. Ward on March 9, 2009. A U-Line catalog in the van featured packing materials such as peanuts, boxes and wrapping.

At the instruction of a narcotics detective, Deputy John Becker stopped the green Toyota driven by Mr. Howell. The Toyota was stopped less than one-quarter mile from 1512 Cedarbreak Avenue. Mr. Howell was returned to the Cedarbreak Avenue address, arrested and taken to a sheriff's station. During the booking process, $792.32 was found in Mr. Howell's wallet as well as a piece of paper with the Cedarbreak Avenue address. While at the sheriff's station, Deputy Becker saw a deputy booking Mr. Myrie.

Detective Campbell returned to 1512 Cedarbreak Avenue. Detective Campbell was aware that Mr. Howell and Mr. Ward had been detained. Detective Campbell secured the premises before beginning a search. Detective Campbell also had someone videotape the residence before and after a search was conducted. The video taken prior to the search was played at trial for the jury. The house was cleared with the assistance of a sergeant and a detective along with a dog. Mr. Powell was found lying down in the closet in one of the bedrooms. A deputy was assigned to contain the rear of the residence during the search. After the residence was cleared, Detective Campbell met the deputy who had been in the backyard of the house. Mr. Myrie was handcuffed.

In the master bedroom, Detective Campbell found a loaded handgun and luggage bearing the names of Mr. Powell and Mr. Ward. Large sums of money and several bags of marijuana were found in the kitchen-dining room area. Detective Campbell found packaging materials all over the kitchen. A digital scale was next to the kitchen table. Large bags of packing material, including Styrofoam peanuts, along with tape, plastic rolls, cartons, buckets of grease, and expanding foam were in the bedroom where Mr. Powell was hiding. Another digital scale was in the closet of that room. Detective Campbell explained that a marijuana brick is usually greased to prevent a narcotics dog from smelling it. The Styrofoam is cut to fit all sides of the box where it is then glued. The expanding foam is used to seal the corners of the Styrofoam. Four additional 30-pound marijuana bricks and 1 partial marijuana brick were found in the bedroom closet. A search of a trash can in the backyard uncovered a box top with a label addressed to Mr. Howell at the Cedarbreak Avenue address.

The Ford truck in the driveway had been rented by Mr. Ward at the Ontario airport on March 9, 2009 and was due to be returned on March 11, 2009. Mr. Ward's address was listed as North Lauderdale, Florida. The rental document also had a handwrittennotation of, "1512 Cedarbreak Avenue, Rowland Heights." Twenty-four cans of expanding foam were also found in the Ford truck in the driveway. The parties stipulated that the marijuana recovered from the Cedarbreak Avenue residence and the white van was analyzed by a forensic chemist. The total marijuana recovered was approximately 365 pounds. Based upon his background and expertise, the nature of the packaging, and the quantity recovered, Detective Campbell believed that the marijuana was possessed in order to sell it.

Detective Campbell interviewed Mr. Powell on March 10, 2009. Mr. Powell was advised of his constitutional rights and agreed to speak. Mr. Powell said he had lost his job in New Jersey. Mr. Powell came to the Cedarbreak Avenue residence on March 8, 2009, to make money for his family by packaging marijuana for shipment. An individual identified as "Phillie" paid for Mr. Powell's airfare to California. When Mr. Powell arrived at the Cedarbreak Avenue home, he found an envelope bearing his name on the kitchen table which contained money. When Mr. Powell was booked, he had $3,736.14 in his possession.

III. DISCUSSION

A. Suppression Of Evidence Motion

1. Factual and procedural background

Mr. Ward argues that the trial court improperly denied his section 1538.5, subdivision (i) evidence suppression motion. In his motion, Mr. Ward argued: he was detained without reasonable suspicion; the warrantless traffic stop constituted a seizure; the detention was unlawful; his consent to the van's search was involuntary based upon the illegal detention; and the items seized resulted from the prior unlawful conduct of the sheriff's detectives and deputies. Mr. Powell joined in Mr. Ward's suppression of evidence motion. Mr. Powell further sought to suppress all statements made to the sheriff's detectives. Mr. Myrie joined the motion only as to the marijuana recoveredfrom the van. The prosecutor filed an opposition to the suppression motion. The trial court construed the suppression motions to include claims of an insufficient affidavit for the search of the Cedarbreak Avenue home as well as a warrantless search of the van.

At approximately noon on March 9, 2009, Detective Campbell received a telephone call from an individual identified only as Detective Poole, who was a narcotics...