P. v. Notman CA1/1 ( 2020 )

Filed 8/31/20 P. v Notman CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A157473
v.
JEREMY NOTMAN, (Humboldt County
Super. Ct. No. CR1805781)
Defendant and Appellant.
A jury found defendant Jeremy Notman guilty of an arson committed
with a flamethrower and a minor drug offense. On appeal, Notman’s sole
contention is that the trial court prejudicially erred by admitting evidence of
a metal wand alleged to be part of the flamethrower because the wand’s chain
of custody was inadequate. Although we agree there were gaps in the chain
of custody, we conclude that the court’s evidentiary ruling was a proper
exercise of discretion because these gaps went to the weight rather than the
admissibility of the evidence. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Around 4:15 a.m. on December 18, 2018, a first-floor resident of The
Shadows apartment complex in downtown Eureka was in his unit when his
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wife alerted him to something happening outside. When he exited his
apartment, he saw a man using a flamethrower to spray fire underneath the
complex’s stairs, and he called 911. The resident described the man wielding
the flamethrower as wearing a hat, a t-shirt, and jeans.
Around the same time, a second-floor resident of The Shadows was in
his unit when he heard a noise like the sound of a blowtorch and opened his
door to investigate. After seeing glowing light coming from the stairs, he
walked outside and saw a man under the stairs who had a propane tank
rigged with a hose and metal rod. The rod was dispersing flames across one
wall leading to an alleyway and one wall of the complex’s laundry room. The
resident went back into his apartment to put his shoes on, and when he
returned, he saw the man walking away down the alleyway, dragging the
propane tank behind him. The resident followed the man and used a cell
phone to take Live Photos of him from behind. The resident described the
man as wearing a brown or camouflage jacket, a white or off-white shirt, blue
jeans, and maybe a hat.
At 4:20 a.m., Officers Andrew Endsley and Jonathan Eckert of the
Eureka Police Department separately heard a radio call about a person with
a flamethrower at The Shadows and headed toward the scene. Officer
Endsley drove around in the vicinity of the apartment complex but saw
nothing unusual. Meanwhile, after walking around the first-floor area of The
Shadows, Officer Eckert did not see signs of active fire and cleared the scene.
Minutes after the radio call went out about the incident at The
Shadows, Sergeant Edward Wilson, who was on patrol in downtown Eureka,
saw Notman walking away from the back of the Double A Bar. Notman was
near some dumpsters and was holding a roughly foot-long metal wand.
Notman told Sergeant Wilson that the wand was a roofing tool and that he
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was on his way to work. Not believing him, Sergeant Wilson evaluated
Notman for intoxication, determined he was unable to care for himself, and
called Officer Endsley to the scene.
Officer Endsley arrived at the Double A Bar around 4:35 a.m. and,
believing Notman to be under the influence of “a central nervous system
stimulant such as amphetamine,” handcuffed him. Officer Endsley, who had
received training on flamethrowers and knew about them through his private
study of military history, discussed the metal wand with Sergeant Wilson
and specifically questioned whether it could be part of a flamethrower. As
there was no indication that it had recently been used in a manner consistent
with that of a flamethrower, however, Officer Endsley put the wand in his
police cruiser without bagging it as evidence.
Notman was arrested for public intoxication, and Officer Endsley
transported him to the police station for an intoxication hold. A booking
deputy found a narcotic pipe in Notman’s shirt pocket. At the time of his
arrest, Notman was wearing brown pants, a jacket, a white shirt, and a dark
sweater tied around his neck like a scarf, and he was not wearing a hat.
Around 5:15 a.m., Officer Endsley left the jail where Notman had been
booked. The officer returned to the police station, where he threw the wand
into an industrial-sized trash bin in the station’s parking lot. He testified
that the parking lot is surrounded by a cinder block wall that has an entrance
and exit for vehicles and a restricted access sign posted.
Between 6:04 and 6:15 a.m., Officers Endsley and Eckert were
dispatched back to The Shadows. When Officer Eckert arrived, he saw smoke
coming from the laundry-room area and called the fire department. After
ordering the building to be evacuated, a Humboldt Bay Fire captain observed
damage to the wall showing that the studs had been smoldering for a while.
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Another fire captain offered an expert opinion that the fire was caused by a
person “directly put[ting] a flame into [the] dryer vent” from the outside of
the laundry-room wall and that the source of the fire was not the electrical
system, the gas line, or the dryer itself.
At some point later that morning, Officers Endsley and Eckert and
Sergeant Wilson were talking at The Shadows when Officer Eckert had what
he agreed was an “Aha! moment” connecting the wand Officer Endsley threw
in the trash to the fire. Officer Eckert directed Officer Endsley to search the
area for a propane tank and then retrieve the wand from the police station’s
dumpster. Officer Endsley later found a propane tank with an attached hose
in an alley near the scene. He then went back to the police station, got the
wand from the dumpster, returned to The Shadows, and gave the wand to
Officer Eckert. At around 8:10 a.m., the detective assigned to the case,
Detective Ronald Harpham, received the wand from Officer Eckert at the
police station and secured it in a locked locker.
The only physical evidence in the prosecutor’s case against Notman was
the wand, and neither DNA nor fingerprints were obtained from any of the
collected evidence, including the propane tank or the wand itself. Detective
Harpham, who previously worked as a general contractor, testified that he
was familiar with flame tools used in residential construction, although less
so with flamethrowers in particular because they are “a very unique tool.”
Nevertheless, he determined that the wand matched the propane tank and
hose found near the scene. Specifically, from looking at the screw threads on
the bottom of the wand, he could tell that “a brass nipple was threaded into
but then sheared off” the wand. In turn, the brass valve attached to the hose
had “several threads with some pipe compound on it and . . . the threaded
nipple portion of it . . . ha[d] been sheared off.” Detective Harpham testified
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that the pipe compound found on both the valve and the wand “just by
eyeball . . . look[ed] consistent” and that the two “appeared to be a fit in
circumference and in the way that it was broken off.”
Other evidence on which the prosecution relied consisted of the Live
Photos taken by the second-floor resident and surveillance footage from a gas
station near The Shadows. Detective Harpham testified that the shoes of the
man in one of the photos appeared to have tan soles and that the shoes
Notman was wearing when booked also had tan soles. The gas station’s
surveillance footage showed a white man with brown upper clothing and a
“flash of white up around the neckline, underneath the face” walking with a
wand in his hand on the morning of the incident. Neither of the eyewitness
residents of The Shadows could positively identify Notman as the man he
saw with the flamethrower.
A jury found Notman guilty of both charges against him: arson of an
inhabited structure, a felony, and possession of drug paraphernalia, a
misdemeanor.1 In May 2019, the trial court sentenced him to the upper term
of eight years in prison for the arson and a concurrent term of one day in jail
for the possession of drug paraphernalia.
II.
DISCUSSION
Notman argues that the admission of evidence regarding the
flamethrower wand was prejudicial error and requires reversal of the arson
conviction. We are not persuaded.
1 The convictions were under Penal Code section 451, subdivision (b)
(arson), and Health and Safety Code section 11364 (possession of drug
paraphernalia).
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1. Additional facts
Before trial, the prosecution moved to introduce evidence of the wand.
The defense objected, arguing that the chain of custody was broken because
the wand was in the dumpster for an uncertain amount of time. The
prosecution responded that while the wand was indeed thrown in the trash,
the dumpster was in a walled-off area of the police station’s yard, and Officer
Endsley would testify that when he retrieved the wand, it was in
substantially the same condition as when he disposed of it. The trial court
ruled that evidence of the wand was admissible. In doing so, it noted that
because the dumpster was in a secure area inaccessible to the public, the
wand was “less likely to be contaminated,” and thus the gap in the chain of
custody would go to the evidence’s weight rather than its admissibility.
Four witnesses—Officers Eckert and Endsley, Sergeant Wilson, and
Detective Harpham—offered testimony relevant to the wand’s chain of
custody. Sergeant Wilson, who provided the first link in the chain of custody,
testified that he saw the wand in Notman’s hand. This was the only direct
evidence tying Notman to the wand. Although the sergeant’s body camera
was on during his encounter with Notman, the footage did not capture the
wand in Notman’s hand. Sergeant Wilson also testified that it was not
unusual to encounter transient people on the streets of Eureka at that time of
day and that he often saw them going through dumpsters looking for
salvageable items. Thus, although he knew about the incident at The
Shadows when he first saw Notman with the wand, his initial impression
was that the object was “just a long pipe.”
Similarly, Officer Endsley, the next person to come into contact with
the wand, testified that his initial assessment of the object was that it “just
seemed to be a piece of street trash that [Notman] might have picked up.”
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Officer Endsley threw the wand in the dumpster at some point between
5:15 a.m., when he left the jail where Notman was booked, and 6:04 a.m.,
when he was dispatched back to The Shadows. Although the officer was
wearing his body camera that morning, it was not on when he retrieved the
wand from the dumpster.
Officer Endsley’s last contact with the wand was sometime after
6:04 a.m., when he again returned to The Shadows after retrieving the wand
from the trash and gave it to Officer Eckert. Officer Eckert testified that he
received the wand before handing the scene over to Detective Harpham. The
timing of these interactions is not documented. Finally, Detective Harpham
testified that he received the wand from Officer Eckert at the police station at
about 8:10 a.m., where it was secured in a locker in his office.
2. Discussion
Notman argues that the trial court prejudicially erred in admitting
evidence of the wand. We disagree, and we must therefore affirm even
though we acknowledge the evidence of Notman’s guilt was weak.
“In a chain of custody claim, ‘ “[t]he burden on the party offering the
evidence is to show to the satisfaction of the trial court that, taking all the
circumstances into account including the ease or difficulty with which the
particular evidence could have been altered, it is reasonably certain that
there was no alteration. [¶] The requirement of reasonable certainty is not
met when some vital link in the chain of possession is not accounted for,
because then it is as likely as not that the evidence analyzed was not the
evidence originally received. Left to such speculation the court must exclude
the evidence. [Citations.] Conversely, when it is the barest speculation that
there was tampering, it is proper to admit the evidence and let what doubt
remains go to its weight.” ’ ” (People v. Catlin (2001) 26 Cal. 4th 81, 134
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(Catlin).) Although “ ‘a perfect chain of custody is desirable, gaps will not
result in the exclusion of the evidence, so long as the links offered connect the
evidence with the case and raise no serious questions of tampering.’ ” (Ibid.,
quoting Mendez, Cal. Evidence (1993) § 13.05, p. 237.) A trial court’s
admission of evidence over a chain-of-custody objection is reviewed for an
abuse of discretion. (Catlin, at p. 134.)
Notman contends that it is not reasonably certain the wand analyzed
was the one taken from him. He focuses on the time the wand was in the
police station’s dumpster, calling it a “vital link in the chain of possession.”
(People v. Lucas (1995) 12 Cal. 4th 415, 444.) He points out that Officer
Endsley could not testify as to when exactly he threw the wand in the
dumpster or when he retrieved it. We agree with Notman that this
constituted a break in the chain of custody. And the record reveals that
another break occurred after Officer Endsley gave the wand to Officer Eckert,
since there is no indication of how or where the wand was stored while in
Officer Eckert’s possession. Together, these breaks created a nearly three-
hour period during which the wand was not accounted for.
Nonetheless, we cannot conclude that the trial court erred by finding,
after “taking all the circumstances into account including the ease or
difficulty with which the particular evidence could have been altered, [that it
was] reasonably certain that there was no alteration.” (Catlin, supra,
26 Cal.4th at p. 134.) In arguing to admit the wand, the prosecution asserted
that the circumstances were similar to those in People v. Laursen (1972)
8 Cal. 3d 192. In Laursen, the police did not have proper tools with them to
open and search an immobile car suspected of being used in the commission
of an armed robbery, so the vehicle was impounded to be stored at a police
garage before further examination. (Id. at p. 202.) Fingerprints matching
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the defendant’s were later lifted from the vehicle. (Ibid.) The defendant
attempted to create an inference that the fingerprints had been tampered
with and argued on appeal that the fingerprints should have been excluded.
(Ibid.) Rejecting this argument, our state Supreme Court noted that had the
police failed to secure the car, the defendant, or others acting on his behalf,
would have had the opportunity to tamper with the evidence. (Ibid.) The
Court held that because the defendant “ ‘did not point to any indication of
actual tampering, did not show how fingerprints could have been forged, and
did not establish that anyone who might have been interested in tampering
with the prints knew’ where they were or had access to them, it was proper to
admit the evidence and permit the speculation urged by [the] defendant to go
to its weight.” (Ibid.)
Although not explicitly relied on by the defense below, People v.
Jimenez (2008) 165 Cal. App. 4th 75 (Jimenez) is one of the few published
decisions to discuss in detail what type of gap in the chain of custody renders
a piece of evidence inadmissible. In Jimenez, DNA swabs were taken from
the handlebars of a bicycle used by a bank robber and abandoned near the
crime scene. (Id. at p. 79.) A criminalist compared the DNA found on the
bicycle with a reference sample supposedly taken from the defendant. (Id. at
pp. 79–80.) The technician who purportedly collected the sample from the
defendant, documented it, and sent it to the Department of Justice did not
testify. (Id. at p. 80.) Instead, at trial a police sergeant testified
“conclusorily” that he made arrangements with a technician to take DNA
swabs from the defendant and then either he or the chief investigating officer
instructed someone to send the swabs to the criminalist at the Department of
Justice, and the criminalist testified that he received the swabs. (Id. at
pp. 79–80.)
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The Fifth District Court of Appeal found this chain of custody to be
“woefully inadequate,” concluding that it “amount[ed] to nothing more than a
link here, a link there, with little more than speculation to connect the links
into a chain.” (Jimenez, supra, 165 Cal.App.4th at p. 81.) Because “serious
questions ar[o]se about what, if anything, the reference sample ha[d] to do
with” the defendant, “the requisite showing of a reasonable certainty that
there was no substitution” was not met, and reversal was required. (Id. at
pp. 77, 81.)
We are unconvinced that the breaks in the wand’s chain of custody
leave open “key foundational issues about the chain of custody.” (Jimenez,
supra, 165 Cal.App.4th at p. 80.) People v. Hall (2010) 187 Cal. App. 4th 282
(Hall), which distinguished Jimenez, is instructive. The Hall defendant
claimed that it was error to allow a criminalist to testify about the
defendant’s blood-alcohol level because “there was no evidence to show who
took [his] blood sample, who delivered the blood sample to the crime lab, and
how the blood sample was transferred [between crime labs]. He also
[pointed] out that the criminalist was unable to testify as to the whereabouts
of the blood sample during the three days before the crime lab received it and
the six days following the crime lab’s receipt of the blood sample.” (Hall, at
p. 294.)
The Second District Court of Appeal rejected the defendant’s reliance
on Jimenez, describing the chain-of-custody testimony in Jimenez as
providing “no reasonable certainty that the DNA sample purportedly
obtained from the defendant and the crime scene DNA had not been
substituted for one or the other.” (Hall, supra, 187 Cal.App.4th at p. 296.) In
other words, it was not reasonably certain that the Jimenez sample actually
came from the defendant. (Hall, at p. 295.) In contrast, the Hall defendant
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remembered having his blood drawn and there was only one sample in play,
meaning that “high level of ease with which the particular evidence could
have been altered” was “not present” like it was in Jimenez. (Hall, at p. 296.)
We find the circumstances here to be more similar to those in Laursen
and Hall than to those in Jimenez. The links in the chain of custody that
were established here connected the wand to the case and raised no serious
questions of tampering. (See County of Sonoma v. Grant W. (1986)
187 Cal. App. 3d 1439, 1448.) Nor does anything in the record suggest that
the wand ultimately examined by Detective Harpham was not the wand
retrieved during Notman’s arrest. While we agree with Notman that any
alteration of the wand while it was in the dumpster would have been more
likely due to damage than tampering, Notman points to nothing in the record
that gives even an inkling that such an alteration actually occurred. (See
People v. Riser (1956) 47 Cal. 2d 566, 581.) As a result, we cannot conclude
that the trial court abused its discretion in determining that the remote
possibility of the wand’s alteration went to the evidence’s weight and not to
its admissibility. (See Catlin, supra, 26 Cal.4th at p. 134 [“ ‘ “when it is the
barest speculation that there was tampering, it is proper to admit the
evidence and let what doubt remains go to its weight” ’ ”].)
III.
DISPOSITION
The judgment is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Sanchez, J.
People v. Notman A157473
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