People v. Leo CA2/4 ( 2024 )

Filed 10/15/24 P. v. Leo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B319616
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. NA118413)
v.
SCOTT LEO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Daniel J. Lowenthal, Judge. Affirmed as Modified.
Robert A. Werth, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Steven D. Matthews, Supervising Deputy Attorney General, and
Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Scott Leo hosted drug-fueled parties at his home, where he
and his guest(s) would primarily consume methamphetamine and GHB.1 A
jury convicted defendant of three drug-related crimes: maintaining a place to
give away or furnish controlled substances (count 3) and furnishing GHB and
methamphetamine to others (counts 4 & 5, respectively). On appeal,
defendant contends the trial court committed various evidentiary errors as
well as instructional error. He further contends the court improperly
informed the jury about a victim advocate present in the courtroom. In sum,
defendant argues that cumulative prejudice caused by these errors requires
reversal. In addition, defendant asserts there was insufficient evidence to
support count 3, and his sentence on that count must be stayed pursuant to
Penal Code section 654. While his contentions largely fail, defendant’s claim
of sentencing error has merit. Therefore, we direct the superior court to
modify the abstract of judgment to reflect the stay. In all other respects, the
judgment is affirmed.
FACTUAL BACKGROUND
On appeal, “we must view the evidence in the light most favorable to
the verdict and presume the existence of each fact that a rational juror could
have found proved by the evidence. [Citation.]” (People v. Rundle (2008) 43
Cal.4th 76, 139–140, fn. 30, disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Ernesto Junco and defendant were friends and had known each other
for three or four years. Junco and defendant exchanged multiple text
messages for the purposes of using drugs and having sex at defendant’s
1 GHB is known as a “date rape” drug.
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house. During one conversation, Junco wanted to come over to defendant’s
house, but defendant did not respond because he was with another individual
using GHB.
Dustin Thompson met Zachary Kennedy approximately 10 years prior
to trial. Thompson described Kennedy as his best friend. Thompson testified
about drug culture and related terms. He explained methamphetamine had
many nicknames including, “T,” “Tina,” and “Crystal,” while GHB was called
“G.” He explained that “admin” referred to someone who could inject drugs
intravenously with a needle. In addition, “slamming” referred to taking
drugs with a needle. Based on his experience, Thompson stated that GHB
and methamphetamine were usually taken together in the course of partying.
He also described a “host” as someone who invites people over to their house,
and the host was “usually providing the drugs.” “Favs” referred to the drugs
to be used at the party, like a party favor. Thompson explained one could
ingest methamphetamine in various ways but one drank GHB.
On October 8, 2017, Thompson drove Kennedy to defendant’s house for
a party. Kennedy told Thompson he was bringing GHB and syringes.
Thompson knew that Kennedy used drugs, specifically methamphetamine
and GHB. Both of them, as well as other individuals, went to the party at
defendant’s house to do drugs and have sex. Upon entering the party,
Thompson saw people sitting around the living room “doing drugs.”
Thompson observed needles filled with methamphetamine that were “ready
to go.” He saw several people smoking and slamming methamphetamine.
Thompson also witnessed Kennedy inject others with the syringes he brought
to the party. Both he and Kennedy used methamphetamine and GHB. While
Kennedy left the party, Thompson stayed. In the basement, Thompson
observed people having sex and slamming and smoking methamphetamine.
3
Police officers arrived at defendant’s house in response to a caller (falsely)
claiming a rape occurred at that location. The officers soon discovered
methamphetamine was being consumed because there were needles and
drugs in the living room area. One officer told them to “cut that out.”
On October 22, 2017, Kennedy went back to defendant’s house. He
ingested methamphetamine and GHB. That evening, defendant texted his
friend Junco that he found Kennedy in the bathtub “in a G-hole.” A G-hole is
a state of unconsciousness caused by excessive use of GHB. Defendant asked
if Junco could come by to help remove Kennedy as he could not do it himself.
Junco was unable to go to defendant’s house. Junco had previously
experienced a “G-hole”, and while it was frightening, he recovered. Junco
told defendant that Kennedy just needed to relax.
At a later date, law enforcement executed a search warrant for
defendant’s house and uncovered Kennedy’s body, which was buried in the
backyard. Neither the cause of death nor the exact circumstances
surrounding his death are contained in the record. However, defendant had
cut off Kennedy’s feet postmortem to fit his body in a container before
burying it.2 In addition, methamphetamine and GHB were detected in
Kennedy’s system. Law enforcement also observed drugs and drug
paraphernalia in defendant’s house. In one bedroom, there was a clear bag
with an off-white crystal substance in it, later identified as
methamphetamine, as well as a red straw. In another bedroom, there was a
“shot glass” with a powdery, off-white substance resembling
methamphetamine. There was also a small bag of methamphetamine and
next to it was a glass pipe, which is typically used to smoke
2 Defendant was not tried for any crime related to Kennedy’s death or
the burying of his body.
4
methamphetamine. In the detached garage, there was duct tape, a bag of
rocks, plastic bins, and “digging tools.”
Law enforcement seized defendant’s cell phone, which revealed
multiple communications with unidentified individuals discussing getting
together for sex and drugs. Some, not all, of the text messages were as
follows. A conversation between defendant and another individual, discussed
getting together. Defendant suggested the two “get naked, high and go from
there.” Another message sent by defendant asked whether the individual
was bringing anyone to a particular residence. The individual asked
defendant if he had “favs.” Defendant responded, “T and 420,” which meant
he had methamphetamine and marijuana. In another text conversation,
defendant asked an individual if he had party favors. The individual
responded that he had “T & G,” which meant methamphetamine and GHB.
In a different conversation, defendant stated he had some party favors to
share, but was good on marijuana. Defendant then asked the individual to
“bring some [drugs] if you have any.” In another conversation, an individual
asked defendant if he was “able to part with some of your goodies?” Goodies
referred to drugs. Defendant responded, “I may have someone wanting to
buy them.” The individual responded, “Yea, I just want T enough for like
maybe two or three boys really to get me through the day.” In a February 18,
2018 text exchange, defendant invited an individual over to his house and
indicated he would have methamphetamine and GHB. Defendant asked if he
planned to “shoot up” or smoke the methamphetamine. The individual
indicated that he would “just smoke.”
Defendant’s cell phone contained similar texts dating back to 2015.
Some, not all, of the text messages are as follows. In one conversation, an
individual said, “Do [yo]u need any more goods for your guests?” Defendant
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responded that he “probably should,” but that he did not have any cash.
Defendant then said, “I’ll have to wait. Will you let me know where you
land.” Goods (like goodies) referred to drugs. In another conservation, an
individual asked defendant if he had any methamphetamine. In a different
conversation, an individual asked defendant if he had “any more T,” and then
later thanked defendant “for getting it for me and providing all you did.”
Defendant responded, “It was my pleasure. Thank you for being so sweet,
between the douche online last night [and] watching my back and stash.”
Stash referred to drugs. The individual replied, “Aww thanks. He was just
worried about drugs. . . . It pissed me off that he asked you a second time to
smoke what was left in the stem of the pipe.” In another text exchange,
defendant talked about his roommate who “was not okay with [defendant]
inviting [people] over to have sex and use narcotics.”
PROCEDURAL HISTORY
A jury found Leo guilty of three drug-related charges in violation of the
Health and Safety Code, as follows: maintaining a place for the purpose of
giving away or using controlled substances (here, methamphetamine and
GHB) between October 8, 2017 and May 3, 2018 (Health & Saf. Code, § 11366
[count 3]); furnishing GHB and methamphetamine to others on or about
October 8, 2017, October 20, 2017, October 22, 2017, and/or February 18,
2018 (Health & Saf. Code, §§ 11352, subd. (a), 11379, subd. (a), respectively
[counts 4 & 5]).3 The jury also found four aggravating circumstances to be
true (Cal. Rules of Court, rules 4.421(a)(1), (a)(3), (a)(4), and (a)(8)).4 The
3 The amended information only contains counts 3, 4, and 5.
4 The following aggravating circumstances were alleged: the crimes
involved acts disclosing a high degree of cruelty, viciousness or callousness
6
trial court sentenced Leo to six years and eight months in state prison, which
consisted of the upper term of five years on count 4, and one-third the mid-
term on counts 3 (eight months) and 5 (one year).
Leo timely filed a notice of appeal.
DISCUSSSION
I. Evidentiary Rulings
Defendant contends the trial court abused its discretion in excluding,
on relevancy grounds, evidence establishing (1) Craig Sweitzer (not
defendant) supplied Kennedy with GHB the night of his death, (2) Kennedy’s
drug history, and (3) an alternative explanation for why defendant buried
Kennedy’s body. He further contends the court abused its discretion in
admitting evidence pertaining to the burial of Kennedy’s body to establish
consciousness of guilt. Lastly, defendant argues the court abused its
discretion in admitting his 2015 electronic communications, which occurred
outside the time period for the charged crimes (Oct. 8, 2017 to May 3, 2018).5
(Cal. Rules of Court, rule 4.421(a)(1)); the crimes involved a particularly
vulnerable victim (Cal. Rules of Court, rule 4.421(a)(3)); the defendant
induced others to participate in the commission of the crime or occupied a
position of leadership or dominance of other participants (Cal. Rules of Court,
rule 4.421(a)(4)); and the manner in which the crime was carried out
indicated planning, sophistication, or professionalism (Cal. Rules of Court,
rule 4.421(a)(8)). On appeal, defendant does not challenge the jury findings
on the aggravated circumstances.
5 Defendant argues that the exclusion of two witnesses’ testimony
(Dyanne Irwin and Johnny Peterson) violated his federal due process right to
present a defense. This argument as to Peterson is forfeited based on
defendant’s failure to raise it in the trial court. (People v. Partida (2005) 37
Cal.4th 428, 435.) As to Irwin, the argument lacks merits. The witness’s
testimony would not provide evidence material to a claim of innocence.
Defendant proffered that Irwin would provide an alternative theory for
7
Assuming without deciding the court’s admission or exclusion of this
evidence was erroneous, defendant’s evidentiary challenges would still fail
due to the absence of demonstrated prejudice. (People v. Hill (1998) 17
Cal.4th 800, 844 [“criminal trials are rarely perfect, and [the] court will not
reverse a judgment absent a showing of a miscarriage of justice”].) To
demonstrate prejudice sufficient for reversal on the ground of evidentiary
error, the defendant must show a reasonable probability that absent the trial
court’s erroneous ruling, the result of the proceeding would have been
different. (People v. Alcala (1992) 4 Cal.4th 742, 791 [evidentiary rulings
reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818reasonable probability standard]; see also People v. Lucas (1995) 12 Cal.4th
415, 436.) Here, defendant made no such showing. (See Cal. Const., art. VI,
§ 13.)
In any event, defendant does not challenge the sufficiency of the
evidence for furnishing GHB and methamphetamine convictions. As
discussed below, there was more than sufficient evidence to support the
remaining conviction for maintaining a place for the purpose of using
controlled substances (specifically, methamphetamine and GHB). Thus,
there is no reasonable probability that the evidentiary rulings would have
altered the jury’s verdict.
burying Kennedy’s body (i.e., defendant would have lost his job if his
employer learned of Kennedy’s drug overdose). Defendant does not articulate
nor can we conclude that this evidence would negate any element of the
charged offenses. Defendant admits that the circumstances of Kennedy’s
death and subsequent burial is “not relevant to the listed charges.”
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II. Jury Instruction
Defendant asserts the trial court committed prejudicial instructional
error by failing to instruct the jury that Thompson was an accomplice in the
furnishing GHB to others charge. We reject defendant’s claim of
instructional error.
An accomplice is “one who is liable to prosecution for the identical
offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.” (Pen. Code, § 1111.) For a witness to
be chargeable with an “identical offense” for purposes of determining whether
the witness is an accomplice, he “must be considered a principal.” (People v.
Lewis (2001) 26 Cal.4th 334, 368.) Principals are defined as “[a]ll persons
concerned in the commission of a crime, whether . . . they directly commit the
act constituting the offense, or aid and abet in its commission.” (Pen. Code,
§ 31.) “An aider and abettor is one who acts with both knowledge of the
perpetrator’s criminal purpose and the intent of encouraging or facilitating
commission of the offense.” (People v. Avila (2006) 38 Cal.4th 491, 564.)
Thus, “[a]n accomplice must have ‘“guilty knowledge and intent with regard
to the commission of the crime.”’” (People v. Lewis, supra, 26 Cal.4th at p.
369.)
“‘If there is evidence from which the jury could find that a witness is an
accomplice to the crime charged, the court must instruct the jury on
accomplice testimony.’” (People v. Lewis, supra, 26 Cal.4th at p. 369; see
Boyer (2006) 38 Cal.4th 412, 466 [“The court need give such instructions [on
accomplice testimony] only where there is substantial evidence that the
witness was an accomplice”].)
Defendant contends Thompson was an accomplice in furnishing GHB
to others because he drove Kennedy to defendant’s party on October 8, 2017,
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knowing that he was in possession of GHB. We conclude these facts are
insufficient to rise to the level of an accomplice. There is no evidence
Thompson planned to bring the GHB to defendant’s party for the purpose of
furnishing it to the guests. There is also no evidence Thompson advised or
directed Kennedy to furnish GHB to others. As noted by the trial court in
refusing the accomplice instruction, “all Dustin Thompson did was give
[Kennedy] a ride over to [defendant]’s house.” At trial, defense counsel also
acknowledged there was no evidence that Thompson knew Kennedy’s GHB
would be distributed or used by others at defendant’s party. Therefore, the
court did not error in declining to instruct the jury that Thompson was an
accomplice in furnishing GHB to others.
III. Victim’s Advocate
Defendant argues the trial court erred in using the term “victim
advocate” in front of the jury twice, instead of a more neutral term such as
“support person,” during a break in Thompson’s testimony. We conclude the
argument is forfeited.
Prior to resuming Thompson’s testimony, the following proceedings
were held at sidebar. The district attorney noted Thompson was having a
difficult time, “he was still visibly trembling and shaking.” She informed the
court and defense counsel that she asked a victim advocate to meet with
Thompson during the lunch hour to check on him. The district attorney also
stated she provided the victim advocate with money to get Thompson
something to eat. After talking with the victim advocate, Thompson stated
“he would feel better if [the victim advocate was in the court] with him.”
Defense counsel responded it was “inappropriate to be buying witnesses
lunch.” He also said there was no need to have the victim advocate next to
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Thompson on the witness stand. The district attorney offered to place the
victim advocate in the front row, rather than next to the witness stand, while
Thompson testifies. Defense counsel again raised the issue of the district
attorney paying for Thompson’s lunch and requested that the court inform
the jury. The district attorney clarified that she did not buy him lunch but
gave the victim advocate money to do so. Defense counsel agreed the district
attorney “gave the victim advocate money to buy lunch.” In the jury’s
presence, the court inquired about the name of the victim advocate and the
district attorney responded, “Ms. Destiny Waters.” The court informed
Thompson that Ms. Waters would be sitting in the front row, and it was the
court’s understanding that the district attorney provided funds to Ms. Waters
to purchase lunch for him. Thompson confirmed that was correct.
On appeal, defendant contends that the court’s two references to Ms.
Waters as a “victim advocate” communicated to the jury that Thompson was
the victim of the charged offenses.6 We agree with the Attorney General that
the issue is forfeited based on defense counsel’s failure to object below.
(People v. Myles (2012) 53 Cal.4th 1181, 1214.) In response, defendant argues
an objection would have been futile because “any attempt to correct the
[court’s] error would have exacerbated the issue.” We disagree with
defendant’s conclusory assertion. Had defense counsel objected, the trial
court could have corrected any alleged error by stating Ms. Waters was a
“support person,” thereby refuting any implication Thompson was a victim of
the charged offenses.7
6 Defendant does not challenge the presence of Ms. Waters in the
courtroom.
7 Defendant also contends that the cumulative impact of the evidentiary
errors, instructional error, and the trial court’s error in informing the jury of
the victim advocate violated his right to a fair trial. As we have not found
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IV. Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his
conviction for maintaining a place for the purpose of giving away or using
controlled substances (Health & Saf. Code, § 11366). He argues there is no
evidence that he “used his house on a continuous and repeated basis to
provide drugs to others.” We disagree.
“‘When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We determine ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
In so doing, a reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’
(People v. Kraft (2000) 23 Cal.4th 978, 1053.) ‘This standard applies whether
direct or circumstantial evidence is involved.’ (People v. Catlin (2001) 26
Cal.4th 81, 139.)” (People v. Avila (2009) 46 Cal.4th 680, 701.)
Health and Safety Code section 11366 provides in pertinent part:
“Every person who . . . maintains any place for the purpose of unlawfully . . .
giving away, or using any controlled substance . . . shall be punished by
imprisonment.” “‘The proscribed “purpose” is one that contemplates a
continuity of such unlawful usage; a single or isolated instance of the
any error and deem the only arguable error (evidentiary rulings)
insufficiently prejudicial to warrant reversal, we reject this contention.
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forbidden conduct does not suffice.’ [Citations.]” (People v. Franco (2009) 180
Cal.App.4th 713, 718; People v. Vera (1999) 69 Cal.App.4th 1100, 1102.)
“[E]vidence of a single instance of drug use or sales at the house, without
circumstances supporting a reasonable inference that the house was used for
the prohibited purposes continuously or repetitively, does not suffice to
sustain a conviction of the opening-or-maintaining offense.” (People v.
Hawkins (2004) 124 Cal.App.4th 675, 682.)
Here, the record is replete with evidence from which the jury could
reasonably infer continuing unlawful use. Defendant engaged in multiple
conversations with various unidentified individuals inviting them to his
house to have sex and consume narcotics, specifically methamphetamine
and/or GHB. Law enforcement later found methamphetamine and drug
paraphernalia at defendant’s house. Thompson also testified that he and
Kennedy attended a party defendant hosted at his house on October 8, 2017
for the purpose of having sex and doing drugs. Thompson observed
individuals smoking and slamming methamphetamine. He and Thompson
partook in consuming methamphetamine as well as GHB that night.
Moreover, Kennedy went to defendant’s house on October 22, 2017 for the
purpose of consuming narcotics. We note that defendant concedes in his
opening brief (albeit in the context of challenging an evidentiary ruling) that
there was substantial evidence to support this offense. Thus, we conclude
there was sufficient evidence to support the jury’s finding that defendant
maintained a place with the intent to give away or allow others to use
controlled substances, specifically methamphetamine and GHB, on a
continuous or repeated basis. (See CALCRIM No. 2440.)
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V. Sentencing Issue
Defendant contends that his eight-month sentence for maintaining a
place to give away or use controlled substances (methamphetamine and
GHB) must be stayed because its duplicative of his punishment for the
offenses of furnishing methamphetamine and GHB to others. We agree.
Penal Code section 654, subdivision (a), states: “An act or omission that
is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or
omission be punished under more than one provision.” Penal Code section
654 applies equally to the penal provisions of the Health and Safety Code.
(People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
Subdivision (a) of Penal Code section 654 has been found to preclude
“‘multiple punishment for a single act or for a course of conduct comprising
indivisible acts. “Whether a course of criminal conduct is divisible . . .
depends on the intent and objective of the actor.” [Citations.] “[I]f all the
offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single
intent and therefore may be punished only once.” [Citation.]’ [Citation.]”
(People v. Spirlin (2000) 81 Cal.App.4th 119, 129; People v. Latimer (1993) 5
Cal.4th 1203, 1207–1208.) However, if the defendant harbored “multiple or
simultaneous objectives, independent of and not merely incidental to each
other, the defendant may be punished for each violation committed in pursuit
of each objective even though the violations share common acts or were parts
of an otherwise indivisible course of conduct. [Citation.]” (People v.
Cleveland (2001) 87 Cal.App.4th 263, 267–268; People v. Solis (2001) 90
Cal.App.4th 1002, 1021.)
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Keeping in mind that the focus of Penal Code section 654 is whether
the defendant acted pursuant to a single intent and objective (People v.
Avalos, supra, 47 Cal.App.4th at p. 1583), we note that defendant was found
guilty of violating Health and Safety Code section 11366, which criminalizes
maintaining “any place for the purpose of unlawfully . . . giving away, or
using” methamphetamine and GHB. “Corrupting and encouraging others by
maintaining a place for drug abusers to gather and by furnishing drugs to
them” is the “criminal objective” of a violation of Health and Safety Code
section 11366. (People v. Green (1988) 200 Cal.App.3d 538, 544.)
Defendant’s criminal objective for maintaining a place to give away or
furnish controlled substances to others cannot be separated from the criminal
objectives attendant to his violations of the statutes prohibiting furnishing
methamphetamine and GHB to others. His objective to maintain a place
where he would give away or furnish controlled substances to others was
achieved by actually furnishing controlled substances to them. Having been
punished for each count of furnishing methamphetamine and GHB to others,
punishing defendant for maintaining a place to commit those crimes violates
Penal Code section 654. Therefore, defendant’s sentence as to maintaining a
place to give away or use controlled substances (count 3) must be stayed.
//
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//
//
//
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DISPOSITION
We direct the clerk of the superior court to amend the abstract of
judgment to reflect that the sentence on count 3 is stayed pursuant to Penal
Code section 654 and to forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
MORI, J.
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