People v. Arias

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I., II. and III. of the Dicussion.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 850 OPINION

Appellant John R. Arias was charged by a three-count indictment of the felony offenses of transportation of a controlled substance, methamphetamine (Health Saf. Code, § 11379, subd. (a)1 — count one), possession of that substance for sale (§ 11378 — count two), and possession of a false compartment (§ 11366.8, subd. (a)— count three). After conviction on all of the charges, appellant was sentenced to the midterm of three years on count one, doubled due to a prior felony conviction (Pen. Code, § 667, subd. (e)(1)); four years on count two, which was stayed (Pen. Code, § 654); and four years on count three, concurrent with the six-year sentence imposed for count one. The court also imposed a one-year enhancement for a prior prison term (Pen. Code, § 667.5, subd. (b)), consecutive to the sentence imposed on the principal count. The total sentence was seven years with 160 days credit for actual time served. *Page 851 Appellant claims prosecutorial misconduct, an erroneous instruction on consciousness of guilt, and the erroneous failure to strike a prior prison term pursuant to Penal Code section 667.5. He also raises several issues relating to section 11366.8, which defines the offense of constructing, possessing or using a false compartment with intent to conceal a controlled substance. With respect to that offense, appellant maintains that the evidence is insufficient to sustain his conviction, the trial court gave an erroneous instruction defining a "false compartment," and the statutory definition of a "false compartment" is unconstitutionally vague. In the alternative to his claims relating to section 11366.8, appellant maintains that Penal Code section 654 precludes imposition of punishment on him for commission of that offense. We shall reject all of appellant's claims that do not relate to section 11366.8. However, with respect to that offense, we shall sustain appellant's claim of instructional error and related contention that the evidence that he used or possessed a "false compartment" is insufficient to sustain his conviction of violating section 11366.8; those findings make it unnecessary for us to address appellant's other claims relating to section 11366.8.

FACTS The facts pertinent to the issues presented are as follows: On the evening of May 25, 2005, Martinez Police Officer Nick Voyvodich observed a Lexus without a front license plate and stopped the vehicle for that reason. He asked the driver, appellant, to step out of the car and commenced a search of the vehicle.2 Officer Voyvodich first examined the fabric-covered area between the front of the sunroof and the metal frame of the car — referred to by the parties as the "headliner" — because he had been told by appellant's former girlfriend "there were things inside." Using Velcro strips attached to the fabric, the officer pulled the headliner down, revealing an interior space. Finding nothing there, he turned his attention to the area beneath the driver's seat, which was also empty. However, while looking at the gap between the dashboard and the steering column, Voyvodich saw plastic baggies containing a white crystalline substance. The baggies were stuffed into a space between the steering column and adjacent wiring located behind the part of the dashboard that would be just above a seated driver's left knee. The dashboard panel "snapped out" and Officer Voyvodich was able to remove it and extricate the baggies. He then handcuffed appellant and searched him, finding cash in three bundles containing $300, $320, and $380, respectively, and an additional loose amount of $425. *Page 852 Voyvodich testified that after he informed appellant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694,86 S.Ct. 1602] and appellant agreed to speak to him, appellant said the drugs were his; he had them for several weeks and planned to throw them away because "[h]e wanted to clean his life up." When asked if the money found on him was obtained from selling drugs, appellant said it was given to him by his uncle, David Morales, who was also his employer, for work of an unspecified nature he was to do for Morales. Appellant said that though the Lexus was registered to his mother he was the only one who drove it. A forensic toxicologist testified that the substance found in the three baggies was methamphetamine, and that the baggies weighed 27.72, 23.01, and 3.31 grams respectively. Police Sergeant Gary Peterson, a narcotics expert, testified that appellant possessed the methamphetamine for sale. He explained that a methamphetamine dealer's standard unit of sale is generally one ounce, or 28.5 grams. One of the baggies appellant was found with contained 27.72 grams and the other two baggies together contained 26.32 grams. According to Peterson, drug dealers commonly "chop? off the top" (i.e., take a little for themselves) of the amount they obtain from a supplier. Methamphetamine is commonly sold on the street in "eight balls" (one-eighth of an ounce, or 3.5 grams). Thus Peterson opined that appellant may have received two standard units of methamphetamine from his supplier, taken some for himself, and packaged an "eight-ball" for sale. Peterson believed the money appellant possessed was also indicative of drug dealing. An "eight ball" sells for $110 to $180, so appellant's cash bundles probably indicated three separate sales in quarter-ounce amounts. Finally, Peterson stated that drug dealers often drive cars registered to others, and the fact that appellant did not appear to be under the influence of any drug, and did not possess drug paraphernalia, was also indicative that his possession was for sale. George Driscoll, an inspector for the district attorney's office, testified that he interviewed appellant's uncle, David Morales, who employed appellant at his dental lab. Morales told Driscoll he loaned appellant $1,500 so he could pay his bills. Driscoll asked whether he knew anything about appellant starting a business and Morales said he had heard appellant wanted to start a gardening business. Morales, the only witness called by the defense other than appellant, testified that he owned the dental lab that employed appellant and paid him $10 an hour for assisting in the fabrication of denture implants. In May 2005, Morales and appellant discussed the prospect of appellant starting his own *Page 853 dental technician business as an independent contractor, so he could also work for other labs and generate additional income. Morales loaned appellant $1,500 so he could purchase the necessary tools and obtain a license. On cross-examination, Morales contradicted Inspector Driscoll's testimony that he (Morales) had heard appellant might start a gardening business. He said he told Driscoll only that appellant did gardening work to make extra money. Appellant denied telling Officer Voyvodich that the drugs found in the car were his and had been in the car for a couple of weeks. Appellant said he told Officer Voyvodich that he did not put the drugs where they were found, they were not his, he did not know they were there in the car, and he had no information about them. Appellant said he usually drove a Toyota station wagon, but sometimes used the Lexus, as did his mother, brother, sister and cousins, and during the three months immediately preceding his arrest he had not used the Lexus more than once. He admitted, however, that he had been stopped while driving the Lexus in April 2005, and on two occasions in December 2003, because the car did not have a front license plate. Appellant said that when Voyvodich began accusing him of owning the drugs, he told him that he now lived a respectable life and had "washed my hands completely of all bad stuff," admitting he had been convicted in 1991 of felony grand theft and in 1998 "of a felony involving a crime of moral turpitude." Appellant testified that he wanted to go into business for himself as a dental technician and his uncle loaned him $1,500 for that purpose. He cashed the check in that amount his uncle had given him, and received fifteen $100 bills from the bank. He later spent $75 of that money. Appellant agreed to his brother's request to exchange some of his $100 bills for $1,100 in smaller denominations, primarily $20 bills. He put the money in his pocket rather than in a bank because he had previously been a victim of identity theft and was unable to open a bank account. On the day he was arrested, appellant was planning to spend the weekend with his girlfriend in San Francisco. He asked his mother if he could use her Lexus because it was nicer than the station wagon he ordinarily used. He had not driven the Lexus for a month or two and knew it was often used by his mother's relatives. When asked, "[d]id you personally do anything to the inside of the Lexus to change or modify any aspect of the inside of it so that you could put drugs in there," appellant answered, "[n]o, my mother would kill me if I did anything like that." Appellant was familiar with the interior *Page 854 area around the sunroof, but never installed Velcro in that area, and had never used or even known there was a compartment behind the headliner. Appellant stated that he had never pulled a panel off the dashboard and was not even aware this could be done. Appellant denied offering to give the police information about other drug dealers. On redirect, he stated that the idea of cooperating with the police by informing on drug dealers was not initiated by him but by the officers who interrogated him while he was in detention. He did not have any such information and refused their offer to let him "work off' his case by becoming an informant. On rebuttal, Officer Voyvodich acknowledged that the idea of appellant "working off' his case by informing on others was discussed with appellant. He could not recall whether the subject was brought up by appellant or by any of the police officers present, but appellant did indicate interest in cooperating with the police and Voyvodich referred him to Detective Paul Starzyk. Starzyk testified that Officer Voyvodich asked him to talk to appellant about "working off' a case and he did so in Voyvodich's presence. He said he never threatened appellant or any other accused person to persuade him to become an informer because such an informant would be unreliable and dangerous.