People v. Vargas-Alvarez CA6

Filed 5/25/22 P. v. Vargas-Alvarez CA6
(see concurring & dissenting opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045450
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 211412)
v.
JOSE VARGAS-ALVAREZ et al.,
Defendants and Appellants.
In 2006, the federal Drug Enforcement Agency (DEA) began investigating a drug
trafficking operation (DTO) headed by defendant Jose Vargas-Alvarez. Codefendants
Emanuel Vargas-Alvarez and Guillermo Velasquez were part of the DTO, which
transported and sold large quantities of cocaine and methamphetamine throughout the
San Francisco Bay Area as well as Southern California.
Following a joint trial, a jury convicted the defendants of multiple drug-related
offenses, as well as offenses related to the kidnapping of an individual Jose1 suspected of
being involved in the theft of $2 million from one of the DTO’s “stash” houses. The trial
court sentenced Jose to a total prison term of 47 years eight months. Emanuel and
Guillermo were sentenced to prison terms totaling 30 years eight months.
1
Because Emanuel and Jose share a surname, we will refer to each of the
defendants individually by their first names and as “defendants” collectively to avoid
confusion.
On appeal, the defendants raise the following arguments: (1) the trial court erred
in the procedure by which it evaluated their motion to compel discovery relating to the
wiretap authorizations;2 (2) the trial court erroneously denied Jose’s motion to suppress
evidence (a) obtained through the use of GPS tracking devices attached to a recreational
vehicle (RV) or (b) seized following a traffic stop of that RV in Nebraska; (3) the trial
court erred in giving the jury wiretap recordings and transcripts that were not played or
read in open court; (4) defense counsel was ineffective for not objecting to the jury
having access to those wiretap recordings and transcripts; (5) the jury was improperly
instructed on (a) the issue of identifying defendants’ voices on the wiretap recordings,
(b) aider and abettor liability, and (c) as to Guillermo and Emanuel, the weight
enhancement attached to the charge of possession of cocaine for sale; (6) the trial court
erred in responding to the jury’s questions regarding the meaning of the term
“possession”; and (7) the cumulation of errors warrants reversal of the judgments.
Defendants also raise sentencing errors relating to the imposition of certain fees and
associated penalty assessments.
As detailed below, we reject defendants’ substantive claims in their entirety, but
agree that the trial court erred in calculating the fees at issue. In addition, we obtained
supplemental briefing from the parties regarding recent changes in the law regarding fees
which have been repealed by the Legislature, specifically Penal Code section 1203.1b3
and former Government Code section 29550 et seq. After briefing in this case was
completed and the matter submitted, Emanuel and Guillermo separately requested that we
vacate submission and grant leave to file supplemental briefs regarding the impact of
recent legislative enactments on their sentences, specifically the enactment of Senate Bill
2
Along with this argument, defendants have asked that this court independently
review the associated sealed and confidential materials.
3
Unspecified statutory references are to the Penal Code.
2
No. 567, effective January 1, 2022. We granted the requests to file supplemental briefs,
sought a response from the Attorney General, and vacated submission to consider the
matters raised in the supplemental briefs.
As discussed below, we will modify Jose’s judgment of conviction to correct the
errors and vacate the unpaid portions of the now-repealed fees. As modified, we will
affirm that judgment. We will reverse Emanuel’s and Guillermo’s judgments of
conviction and remand for resentencing pursuant to section 1170, as amended by Senate
Bill No. 567.
We previously ordered Emanuel’s habeas corpus petition considered with this
appeal; we deny that petition by separate order filed this day.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedure
1. Second amended indictment
On June 21, 2017, Jose, Emanuel, and Guillermo were charged in a second
amended indictment with conspiracy to traffic cocaine (§ 182, subd. (a); Health & Saf.
Code, § 11352; count 1); kidnapping for extortion (§ 209, subd. (a); count 2); kidnapping
between counties (§ 207, subd. (a); count 3); possessing cocaine for sale (Health & Saf.
Code, § 11351; count 10); possessing methamphetamine for sale (Health & Saf. Code,
§ 11378; count 11); possessing a silencer (§ 12520; count 12); possessing more than
$100,000 for the purchase of drugs (Health & Saf. Code, § 11370.6; count 14); three
counts of possessing false compartments for the purpose of smuggling drugs (Health &
Saf. Code, § 11366.8, subd. (a); counts 15, 16 & 17); and possessing an assault weapon
(§ 12280, subd. (b); count 28). The indictment also charged Jose with a second count of
conspiracy to traffic cocaine (§ 182, subd. (a); Health & Saf. Code, § 11352; count 8),
two counts of conspiracy to commit murder (§§ 182, subd. (a)(1), 187; counts 4, 5), and
3
witness tampering (§ 136.1, subd. (c)(1); count 29).4 With respect to the drug charges,
the indictment further alleged weight and firearm enhancements (Health & Saf. Code,
§ 11370.4, subd. (a); §§ 1203.073, subd. (b)(2), 12022, subds. (c), (d)).
2. Verdict
The jury found Jose guilty of the following charges: conspiracy to traffic cocaine
(counts 1, 8), kidnapping between counties (count 3), possession of cocaine for sale
(count 10), possession of methamphetamine for sale (count 11), possession of a silencer
(count 12), possession of more than $100,000 for the purchase of drugs (count 14),
possession of a false compartment (counts 15, 16, 17), and possession of an assault
weapon (count 28). The jury also found true the weight allegations attached to counts 1,
8, 10, and 11 as well as the firearm allegations attached to counts 1, 10, and 11. The jury
acquitted Jose of kidnapping for extortion (count 2) and could not reach a verdict on both
counts of conspiracy to commit murder (counts 4, 5).
The jury convicted Emanuel and Guillermo of conspiracy to traffic cocaine
(count 1), possession of cocaine for sale (count 10), possession of methamphetamine for
sale (count 11), possession of more than $100,000 for the purchase of drugs (count 14),
and possession of a false compartment (counts 15, 16, 17). The jury found true the
weight allegations attached to counts 1, 10, and 11, found not true the substantial
involvement allegation associated with count 1, but did not reach a verdict on the firearm
allegations attached to those counts. The jury found Emanuel and Guillermo not guilty of
kidnapping (counts 2, 3), but found them guilty of the lesser-included offense of
misdemeanor false imprisonment (§ 236) on count 3. The jury could not reach a verdict
on the charges of possession of a silencer (count 12) and possession of an assault weapon
(count 28).
4
Before the case was submitted to the jury, the trial court dismissed the witness
tampering charge (count 29) pursuant to defense counsel’s section 1118.1 motion.
4
3. Sentencing
The trial court sentenced Jose to an aggregate term of 48 years eight months,
consisting of: (1) 35 years on count 1 (the upper term of five years, plus five years for
the firearm enhancement (§ 12022, subd. (c)), plus 25 years for the weight enhancement
(Health & Saf. Code, § 11370.4, subd. (a)(6)); (2) a consecutive term of one year eight
months on count 3 (one-third the middle term); (3) a consecutive term of nine years eight
months on count 8 (one year four months (one-third the middle term), plus eight years
four months (one-third of 25 years)) for the weight enhancement (Health & Saf. Code,
§ 11370.4, subd. (a)(6)); (4) 34 years on count 10 (the upper term of four years plus
25 years for the weight enhancement) plus five years for the firearm enhancement
(§ 12022, subd. (c)), stayed pursuant to section 654; (5) a concurrent upper term of three
years on count 11, with the firearm enhancement stricken pursuant to section 1385,
subdivision (c)(1); (6) a consecutive term of eight months on count 12 (one-third the
middle term); (7) a consecutive term of one year on count 14 (one-third the middle term);
(8) a consecutive term of eight months on count 15 (one-third the middle term); (9) a
concurrent upper term of three years on count 16; (10) a concurrent upper term of three
years on count 17; and (11) the upper term of three years on count 28, stayed pursuant to
section 654. The trial court awarded credits of 3,674 days, consisting of 3,195 custody
credits plus 479 credits pursuant to section 2933.1.
The trial court imposed the following fines, fees, and assessments on Jose: (1) a
$10,000 restitution fund fine (§ 1202.4); (2) a $10,000 parole revocation fund fine
(§ 1202.45), suspended; (3) a $200 criminal laboratory administration fee plus a $560
penalty assessment (Health & Saf. Code, § 11372.5); (4) a $600 drug program fee plus a
$1,680 penalty assessment (Health & Saf. Code, § 11372.7); (5) a $330 court security fee
(§ 1465.8); (6) a $330 criminal conviction assessment (Gov. Code, § 70373); and (7) a
$259.50 criminal justice administration fee payable to the County of Santa Clara (former
Gov. Code, §§ 29550, 29550.1, 29550.2).
5
As to Emanuel and Guillermo, the trial court sentenced them to identical aggregate
county jail terms of 30 years eight months, with three years suspended and deemed a
period of mandatory supervision under section 1170, subdivision (h)(5)(B). The terms
consisted of: (1) 29 years on count 10 (the upper term of four years plus 25 years for the
weight enhancement (Health & Saf. Code, § 11370.4, subd. (a)(6))); (2) a consecutive
one year term on count 14 (one-third the middle term); (3) a consecutive eight month
term on count 15 (one-third the middle term); (4) a concurrent middle term of two years
on count 11; (5) a concurrent middle term of two years on count 16; (6) a concurrent
middle term of two years on count 17; and (7) a middle term of four years on count 1,
stayed pursuant to section 654. The trial court awarded Emanuel and Guillermo credits
of 6,389 days, consisting of 3,195 custody credits plus 3,194 credits pursuant to
section 4019. On count 3, the court sentenced Emanuel and Guillermo to six months in
county jail, deemed served.
The trial court imposed identical fines, fees, and assessments on Emanuel and
Guillermo, as follows: (1) a $10,000 restitution fund fine (§ 12022.4); (2) a $10,000
parole revocation fund fine (§ 1202.45), suspended; (3) a $350 criminal laboratory
administration fee plus a $980 penalty assessment (Health & Saf. Code, § 11372.5); (4) a
$1,050 drug program fee plus a $2,940 penalty assessment (Health & Saf. Code,
§ 11372.7); (5) a $210 court security fee (§ 1465.8); (6) a $210 criminal conviction
assessment (Gov. Code, § 70373); (7) a $259.50 criminal justice administration fee
payable to the County of Santa Clara (former Gov. Code, §§ 29550, 29550.1, 29550.2);
(8) a $450 presentence investigation fee (§ 1203.1b); and (9) a mandatory supervision fee
of $110 per month (§ 1203.1b). On count 3, the trial court imposed a $30 court security
fee (§ 1465.8) and a $30 criminal conviction assessment (Gov. Code, § 70373).
6
B. Trial
DEA Agent Anthony Herrera became involved in the investigation of the DTO in
December 2008. In the course of that investigation, the DEA identified an apartment,
two houses,5 and eight vehicles, including an RV, which were used in the DTO.
1. Wiretap evidence
Herrera testified that, in the course of the investigation, the DEA obtained wiretaps
on eight different phones used by the DTO. The wiretaps in this case were monitored by
contractors with a Spanish-language interpreting company, certified to listen to wiretaps.
Calls were monitored and recorded from 8:00 a.m. until midnight. Once a call began, the
monitor would sign in and listen to determine if the conversation involved criminal
activity. If not, the monitor would “minimize” the call, which would turn off the audio
and the recording, and the conversation would be marked as “nonpertinent” in the call
log. If the call was relevant to the investigation, the monitor would type a synopsis of the
conversation into the narrative section of the “line sheet,” which also automatically
recorded the date, time, the phone numbers involved, and whether it was an outgoing or
incoming call.
Blanca Dalida testified that she was one of the contractors monitoring the wiretaps
on the DTO and she began listening to those calls in December 2008. Prior to listening to
the calls, the monitors were briefed about the case and were required to read an affidavit
describing the nature of the investigation and the individuals involved so the monitors
could determine if calls were pertinent or nonpertinent. Monitors were also required to
minimize calls that were subject to a privilege, such as conversations between an attorney
5
One of the houses, located on Rosemere in Fremont, was a “stash house” used to
store the DTO’s money and drugs. The second house was in Gilroy and was a large rural
property without many homes nearby.
7
and a client or a husband and wife. Any call that was minimized, either as nonpertinent
or privileged, was not recorded.
Dalida’s first language is Spanish, and the majority of calls she monitored were in
Spanish. Identifying the voices “was the most important part” of Dalida’s job, though
she also summarized the pertinent calls for the investigating agents. To identify a voice,
Dalida would use the phone number involved, context, vocal characteristics, and
self-identification.
When she identified a voice, Dalida would note the name in the line sheet for that
call. Dalida was provided defendants’ voice exemplars—in English—following their
arrest, so she could compare those with the voices she heard on the calls. Dalida
prepared transcripts of the recorded calls for trial, relying in part on defendants’ voice
exemplars to identify participants, though the English exemplars were not “very helpful”
since the calls were in Spanish. However, while preparing the transcripts, Dalida had
access to the audio files and line sheets from the wiretaps. Dalida authenticated 87
transcripts of calls she monitored between December 2008 and March 2009 and those
transcripts, as well as the audio of the corresponding calls, were introduced into
evidence.6
Dalida testified that Jose’s voice was distinctive as he would stutter and spoke “a
little bit fast.” While monitoring calls, Dalida heard Jose’s voice multiple times daily.
However, callers would commonly use monikers instead of names, so Dalida would keep
track of those as well. Jose was sometimes referred to as “Pato” or “Lucas” by other
callers. Guillermo was associated with the nicknames “ ‘Chapetes,’ ‘Aurelio,’ ‘Aure,’
[and] ‘Greda.’ ”
6
Only 39 calls were played at trial, but the transcripts and audio of all 87 calls
were available to the jurors during deliberations.
8
2. The RV
Herrera first observed the RV in the driveway of the Gilroy house on
December 16, 2008. That night, he placed a battery-operated GPS tracking device on the
undercarriage of the RV. After returning to the office, Herrera learned that they were not
getting a signal from the device, so the following night, he returned to the property and
placed a second transmitter on the RV. Between December 16 and December 20, Herrera
observed Jose and other members of the DTO, including Jose Melendez-Ramirez and his
wife Virginia Melendez-Ramirez,7 around the RV at a gas station, an auto parts store, and
a shopping center. It appeared that they were preparing the RV for an excursion. Herrera
did not see the RV again after December 20, 2008 and at some point thereafter the GPS
tracking devices stopped working.8
On January 19, 2009, Douglas County (Nebraska) Sheriff’s Deputy Jason
Bargstadt conducted a traffic stop of the RV on Interstate 80 near Omaha. Jose
Melendez-Ramirez was driving the RV and Virginia Melendez-Ramirez and their
daughter, Virginia, Jr., were passengers. Bargstadt found it unusual for an RV to be
traveling on the interstate during the winter months since they have exposed water lines
that will freeze and damage the vehicle. Because Interstate 80 is a known drug
trafficking corridor, Bargstadt suspected that the Melendez-Ramirezes were involved in
criminal activity. Bargstadt searched the RV and noticed some aftermarket
modifications, which ultimately led him to a trapdoor in the RV’s bedroom. Beneath the
trapdoor was a compartment with 100 one–kilogram bundles of cocaine individually
wrapped in green cellophane.
7
The Melendez-Ramirezes were the registered owners of the RV.
8
Herrera could not recall the date on which the devices stopped transmitting.
9
3. The “takedown”
At around 7:00 a.m. on March 18, 2009, law enforcement officers conducted a
“takedown”9 of the DTO. In the course of the takedown, a total of 16 individuals were
arrested including the three defendants.
The three defendants, along with three other adults, were arrested at the Rosemere
stash house—a two-story residence, with four bedrooms, two-and-a-half baths, and a
three-car garage. DEA Special Agent Anthony Guzman was responsible for “logging in
all the evidence found in the residence.” In a locked upstairs bedroom, officers found 42
one-kilogram bundles of suspected cocaine in a closet along with FoodSaver plastic bags,
a vacuum sealer, plastic containers, and dryer sheets. On the lower shelf of a table in that
same room, officers discovered $618,328 bundled in heat-sealed wrap plus another
$152,315 in loose currency inside a dresser drawer. Inside the same dresser, they found
plastic gloves, marking pens, scissors, tape, and box cutters. Officers seized a black
notebook which was used as a “pay/owe ledger” on top of the dresser, along with a
money counter.
Within the upstairs master bedroom, officers discovered a .45-caliber handgun,
two magazines, five rounds of .45-caliber ammunition, and a pair of night-vision goggles.
In the kitchen oven, officers found an “Intratec” handgun, equipped with a silencer.10
Officers recovered a total of 23 cell phones from the residence.
In the garage, officers searched a BMW, a Toyota 4Runner, and an Acura. The
4Runner had a hidden compartment in the rear bumper containing “43 kilos of suspected
cocaine” and “two trays of crystal methamphetamine.” Both the BMW and the Acura
also had hidden compartments, but those compartments were empty.
9
A takedown involves serving search and arrest warrants on multiple persons at
multiple locations simultaneously.
10
Guzman testified that “the magazine was inserted backwards” in this handgun.
10
4. Cooperating witness Flor Gamboa
Gamboa testified pursuant to a cooperation agreement after pleading guilty to
multiple felonies arising from her participation in the DTO. According to the agreement,
Gamboa faced 50 years eight months in prison if she did not testify “ ‘truthfully and
completely.’ ”
Gamboa began working for the DTO in 2007 as a driver, traveling to Los Angeles
with money and returning to the Bay Area with drugs. All of the vehicles she drove had
hidden compartments in which the money and the drugs were concealed. Gamboa
believed the compartments could hold 40 to 50 kilos of drugs and perhaps as much as
$3 million, but she never touched anything in the compartments. She was paid $5,000 for
each round trip and sometimes she made $60,000 in a month. Other months Gamboa
would only make $10,000 or $20,000. Later, Gamboa’s job was to arrange property
rentals for the DTO, using friends or family members to sign the paperwork, and obtain
driver’s licenses for the drug couriers.
Jose, who was in charge of the DTO, was Gamboa’s boyfriend. In March of 2009,
she lived with her daughter and Jose at an apartment on La Strada Drive (La Strada
apartment) in San Jose. Gamboa paid a friend, J.G., to rent the La Strada apartment for
her. J.G. also rented the Rosemere stash house for Gamboa, but J.G. did not know
anything about the DTO.
Jose hired people to manage the DTO’s stash houses and paid them $10,000 per
month. The house manager was responsible for loading and unloading the vehicles,
counting the money, and keeping track of all the cash and the drugs. Jose mostly hired
relatives to work for the DTO, with the exception of Gamboa, Martin Villalobos,
Eduardo Gonzalez also known as “Guero,” and Jose Melendez-Ramirez. Guillermo was
Jose’s cousin and worked first as a house manager then as a courier.
Gamboa testified that everyone in the DTO had at least two cell phones, a personal
phone and a work phone, and they changed cell phones every few months to protect
11
themselves from law enforcement surveillance. When talking about drugs, they always
spoke in code. Gamboa testified that Jose also went by “Pato,” “Francisco Javier Oliva,”
“ ‘Pariente,’ ” and “ ‘Lucas.’ ” Guillermo was also known as “Aure,” “Aurelio,”
“Chapete,” and “Greda.” Emanuel’s nicknames included “Monkiki” and “Gordo.”
Gamboa herself went by “Jessica Maria Acevedo”11 at times.
When asked about the RV, Gamboa said that Jose paid for the vehicle, but
Melendez-Ramirez and his wife, Virginia, were the registered owners. The RV was
stored at the house in Gilroy, since the property was large enough to park it. Gamboa
rented that property, under the name “Jessica Acevedo,” for Melendez-Ramirez and his
family. Jose hired Melendez-Ramirez to drive the RV, “[b]ecause they [i.e., Virginia and
Jose Melendez-Ramirez] look like a reliable couple . . . [y]ou wouldn’t think [were]
transporting drugs.” Jose used the RV to transport drugs to Atlanta, where the prices
were “way higher” than in San Jose. Gamboa testified that the RV made two or three
trips to Atlanta before it was stopped in Nebraska in January 2009.
Gamboa testified that the DTO had only been using the Rosemere stash house for
a few months before it was raided by the DEA. She did not have keys to that house and
only went there when Jose directed her to do so. Emanuel, Villalobos, and Jose were the
only people who had the key to the locked bedroom upstairs.
The DTO usually changed the location of its stash house every year, but members
of the DTO were allowed inside “[i]f you had business there.” Customers were never
permitted at the stash houses and the locations were kept a secret to prevent theft.
Before Gamboa arranged for the rental of the Rosemere stash house, the DTO’s
stash house had been located on Mission Creek in Fremont. In August 2008, someone
11
When Gamboa first entered the United States at the age of nine, she was given a
birth certificate showing her name as “Jessica Maria Acevedo Garcia.” She subsequently
used that false birth certificate to obtain a driver’s license, passport, and other official
documents.
12
stole a large sum of money—perhaps more than $1 million—as well as a vehicle and
possibly some methamphetamine from the Mission Creek stash house. Jose suspected
that Gonzalez, who had been one of the Mission Creek house managers until Jose fired
him three or four weeks before the theft, and some of Gonzalez’s friends were
responsible. Jose had everybody in the DTO, including Gamboa, take a lie detector test.
Jose also called Gonzalez over to the Mission Creek stash house to take a lie detector test.
According to Gamboa, after Gonzalez took the test, someone nicknamed Chino12 and two
other men beat Gonzalez up. Chino and the other two men were Vietnamese. After
Gonzalez left, Jose told Gamboa that Gonzalez, despite the beating, denied being
involved in the theft.
Jose suspected that Luis Lopez was also involved, because Gonzalez moved in
with Lopez after he moved out of the Mission Creek stash house. Jose, Guillermo, Hugo,
Tony, Emanuel, and Gamboa planned to kidnap Lopez, “beat the crap out of him, make
him tell us who or where was the money, [sic] and maybe [] even [kill] him.” Jose would
arrange to meet Lopez at a restaurant and then take him to the La Strada apartment.
Chino and some of his men would be at the apartment and they would beat Lopez.
According to the plan, Gonzalez, who had fled to Mexico, would be kidnapped at the
same time as Lopez. Gamboa testified that Jose and the others discussed possibly killing
Gonzalez, too.
Gamboa was at the Rosemere stash house with her daughter and Martin when she
learned that Jose “and the group” were coming over with Lopez. Jose told her to “go to
the movies,” so she and her daughter, as well as Martin, left the house. When she
returned, Gamboa saw Lopez “for a brief second” in the pantry, and Jose, Guillermo,
12
Gamboa testified that Chino was one of Jose’s “business associate[s].”
13
Alejandro Ramirez,13 and Emanuel were there as well. Lopez was in the house for two or
three days and there “was a lot of tension.” Gamboa testified they had the television
volume up so “[Lopez] wouldn’t hear what we would talk about.” Jose told Gamboa that
Lopez “got beat up” at the La Strada apartment before they brought him to the Rosemere
stash house. Emanuel said he had kicked Lopez in the testicles, and Ramirez was
complaining that his hand hurt from punching Lopez. Once at the Rosemere stash house,
however, “nobody touched [Lopez].” The night before the DEA raid, Lopez ate takeout
with everyone and was released.
The next morning, Gamboa woke up to a loud noise and heard someone yell,
“ ‘D.E.A., open the door.’ ” At the police station, she asked about Jose, and Officer
Varela told her Jose would get a life sentence because of “ ‘the murder and
kidnapping.’ ” Gamboa was distraught so she told them that Lopez was alive and also
told them where he lived. When the DEA offered her a deal that day in exchange for her
cooperation, she initially turned them down and went to jail.
Gamboa listened to audio recordings of wiretapped calls and identified Jose’s
voice on exhibit 1, file Nos. 10, 13, 91, 237, 436, 481, and 1749. She also recognized
Emanuel’s voice on No. 13.
5. Evidence relating to the kidnapping
Luis Lopez lived with Gonzalez from August 2008 to October 2008 when
Gonzalez moved to Mexico. Lopez knew that Gonzalez had been working with Jose.
In August 2008, Jose telephoned Lopez and accused him of stealing money.
According to Lopez, Gonzalez also got a call from Jose “about the money that had gotten
13
Although listed in the indictment as “Alejandro Rocha aka Carnaria, Tocano,”
in some pretrial hearings this individual was referred to as “Alejandro Ramirez.” On the
court’s own motion, we have taken judicial notice of the record in his pending appeal
from his separate trial, People v. Alejandro Ramirez (H043461), at which he was also
referred to as Alejandro Ramirez. For the sake of consistency, we will refer to him herein
as Ramirez, as well.
14
lost.” Jose told Lopez that $2 million had been taken and if Lopez and Gonzalez simply
returned the money, Jose would give them $150,000 apiece. Lopez denied knowing
anything about the money. The next day, Lopez saw Gonzalez and it appeared that
Gonzalez had been beaten up.
In March 2009, Lopez and Jose made plans to meet at a restaurant and talk about
the missing money. Lopez drove his motorcycle to the restaurant and waited for Jose in
the parking lot. When Jose arrived, Lopez got into his pickup truck to talk. Jose began
driving and eventually pulled into the garage underneath a townhouse. Lopez asked what
was going on and Jose told him he just needed to pick something up.
Lopez followed Jose into the residence into the kitchen where he saw three or four
other people standing there. Their faces were covered with black masks and three of
them were holding “high-caliber weapons.” Lopez saw that one of the weapons was
equipped with a silencer. No one said anything to him and the masked men began to beat
him, a couple of times with their weapons, hitting him in the face and knocking him to
the floor. The men secured Lopez’s wrists and ankles with zip ties and put tape over his
mouth. Two of the men, in “Asian”-accented English, asked Lopez for the $2 million
and told him they would kill him if he did not give it to them.
The men took Lopez’s phone, wallet, and the keys to his motorcycle. They looked
through Lopez’s cell phone to see who he had been in contact with, and told him that
Gonzalez needed to return the money. At some point, the men covered Lopez’s head,
possibly with a pillowcase.
After about four hours, the men loaded Lopez into the trunk of a car inside the
garage and drove away. After 30 to 45 minutes, the car stopped and the men opened the
trunk. Lopez had managed to partially remove what was covering his head and saw that
he was inside a different garage. The men put the head covering back in place and
carried Lopez through an interior door into a house, placing him into a small room.
15
Lopez was in that small room next to the kitchen for three days. The first day, two
of the men beat him again, while his head was still covered, punching and kicking him in
the face and body. They again asked him for the money, but Lopez said he “had
nothing.” Eight to 10 hours later, the men returned and beat him again. The men asked
for the money and then left.
The second day, Lopez was beaten again and this time someone, perhaps
Emanuel, stomped on Lopez’s groin. Emanuel also kicked Lopez twice and hit him in
the face once while asking him about the money.
On the third day, Guillermo took the bag off Lopez’s head, cut the zip ties, and
removed the tape over his mouth. Guillermo gave Lopez something to eat and drink and
then used some rope to tie Lopez’s hands in front of his body. Jose came in later that day
and asked Lopez where the money was. Jose also asked if Lopez was willing to go to
Mexico and talk to Gonzalez to “get things cleared up.” Lopez, who was worried about
his family, agreed to do so.
Lopez was let out of the small room, and he sat down at the kitchen table with
Jose, Guillermo, and Emanuel to eat. Jose asked Lopez to forgive him, saying “ ‘I blew
it.’ ” Guillermo also asked for forgiveness, but Emanuel did not. Lopez asked about his
motorcycle and Jose told him they had pushed it over a cliff near Livermore. Jose gave
Lopez $5,000 and told him he would pay for the motorcycle.
Guillermo, Emanuel, and Ramirez put a bag over Lopez’s head again, and put him
in a vehicle. They drove him to the place where they had disposed of his motorcycle
before dropping him off near his house around 10:30 or 11:00 p.m. Lopez did not report
the kidnapping to the police because he did not want any “problems” with “Jose and his
brother and his cousin.”
On March 20, 2009, San Jose Police Department Officer Rafael Varela, who was
assigned to the DEA as part of the investigation into the DTO, interviewed Lopez at his
apartment. Lopez appeared nervous and “his hands were shaking.” The interview lasted
16
about three hours, and afterwards, Lopez got in a car with officers and confirmed the
location of the townhouse where he was initially attacked and bound.
Based on the interview with Lopez, Herrera secured additional search warrants for
the La Strada apartment and Rosemere stash house in order to look for biological
evidence establishing that Lopez had been held there. Those warrants were executed on
March 21, 2009. At the Rosemere stash house, a crime scene investigator searched for
evidence related to a potential kidnapping, such as a hood, duct tape, zip ties, as well as
possible bloodstain evidence in the kitchen pantry where Lopez was held. The
investigator found three bloodstains and some used duct tape inside that pantry. In a
trash can, the investigator found a zip tie, a rope, a water bottle, and an “El Mexicano
Yogurt drink bottle.”14 Three other zip ties were discovered in a box outside the house.
Inside a box in the garage, the investigator found a roll of unused duct tape and some
gloves. Also in the garage, the investigator discovered a gray shoe bag, which was large
enough to fit over someone’s head.
The evidence collected at the Rosemere stash house, as well as bloodstains
discovered in the trunk of one of the vehicles, was analyzed for DNA. Lopez’s DNA was
a match with the DNA found in the bloodstains in the pantry, the trunk, as well as on the
shoe bag, the rope, and the zip ties. Emanuel was identified as a possible minor
contributor of DNA on the shoe bag, on the rope, and on the three zip ties. Guillermo
was identified as a possible contributor to the DNA found on the three zip ties.
II. DISCUSSION
A. Arguments regarding wiretap authorizations
1. Relevant background
In December 2008, February 2009, and March 2009, the superior court authorized
three wiretaps on target phones associated with defendants. DEA Special Agent Patrick
14
Lopez testified that Guillermo gave him a “[s]trawberry El Mexicano” yogurt.
17
Donlin filed a lengthy declaration in support of the wiretap applications. In his
declaration, Donlin asserted that probable cause existed to believe that “the wire and
cellular telephone communications to be intercepted will tend to establish the guilt and
involvement” of the identified individuals “in the possession, sales, distribution and
manufacturing of methamphetamine and/or cocaine.”
Donlin believed that the defendants were using their phones to facilitate the
ongoing DTO. He described what police knew about the DTO by detailing Jose’s
involvement in drug trafficking beginning in 2003. In 2003, DEA agents had obtained a
wiretap on a phone being used by Fernando Ayala, “a large-scale, Los Angeles-based
cocaine trafficker.” The agents intercepted two calls from Jose to Ayala offering to
“purchase 50-100 kilograms of cocaine.” In December 2004, Arizona police stopped a
silver BMW and, after a canine unit alerted to the presence of narcotics, the officers
discovered a hidden compartment in the vehicle. The vehicle was registered to one of
Jose’s relatives and further investigation revealed that a second BMW was purchased at
the same dealership on the same day by Jose (using an alias). The purchasers paid
$110,000 in cash for the two vehicles.
In 2006, Juan Vargas-Alvarez, one of Jose’s brothers, was arrested as part of a
DEA sting operation. Juan had provided an undercover officer the keys to his pickup
truck and the officer, who had previously been given $900,000 to obtain 400 kilograms of
cocaine, was tasked with returning the truck and cocaine to Juan. After the cocaine was
loaded into the truck, the officer drove it to the agreed-upon location and left it in a
parking lot, with the keys hidden on the floorboard. Officers observed Juan retrieve the
keys and drive away. He was then stopped by the CHP and arrested. A search of the cell
phones in his possession showed that Juan was in contact with Jose shortly before and
after he got into his truck.
In a section of the wiretap application concerning “Necessity and Exhaustion,”
Donlin described other investigative techniques “which have been used or have been
18
considered in this investigation to date,” including: use of undercover agents and
confidential sources, physical visual surveillance, search/arrest warrants, pen registers
and analysis of toll records, interviews of suspects in custody, consensual recordings,
trash searches, analysis of financial records, and pole cameras. Donlin concluded that
these efforts had not succeeded to date and were unlikely to succeed.
Donlin determined that further use of confidential informants would be unlikely to
succeed because it was “unlikely” the informants would be “put in a position to identify”
the identities of other conspirators, or the inner workings of the DTO.
Prior to trial, defendants moved to compel discovery of the sealed attachments
supporting the wiretap, which contained information about the confidential informant or
informants who had provided information about Jose and the DTO. The prosecutor
opposed the motion and filed supporting declarations from Donlin and Herrera in which
they averred that unsealing the materials would endanger the lives of confidential sources
and compromise other law enforcement investigations. Following a hearing, the court
denied the discovery motion finding that the prosecution could “limit the disclosure of
the identity of the confidential informants and the contents of the sealed [wiretap]
affidavits.”
On September 24, 2010, defendants moved to suppress the evidence obtained from
the wiretaps, arguing that the redacted materials supporting the initial wiretap (No. 08-13)
did not establish probable cause and the subsequent wiretaps (Nos. 09-01, 09-02) as well
as all evidence seized in this case were thus “ ‘fruit of the poisonous tree.’ ” In
opposition, the prosecutor urged the trial court to conduct an in camera hearing during
which it could review the sealed declarations and examine any witnesses it deemed
necessary before ruling on the defendants’ motion.
At the initial hearing on November 16, 2010, the trial court advised the parties it
would conduct an in camera review in order to determine: (1) “whether the redactions
are proper or whether more information should be disclosed; [and]” (2) “whether
19
considering the entire affidavit or application . . . there is an adequate showing of
probable cause to validate the wiretap.” The court asked that defense counsel “advise the
[c]ourt of any questions they wish to have asked of any officers, agents, or confidential
informants in an in-camera review.” Defendants did not submit any questions to the
court.
At a subsequent hearing in March 2011, the trial court ruled that, after
“conduct[ing] the in-camera review” and taking testimony from “agents and/or
informants as necessary,” it found good cause to limit disclosure to the defendants due to
the “possibility of violence or retaliation to the confidential informants and/or their
families, if any.” However, it also determined that certain specified portions of the
redacted affidavits could be safely disclosed and ordered that the prosecution do so. The
trial court also denied the defendants’ motion to suppress finding that “the applications
set forth [sufficient] probable cause” to support the wiretap authorizations.
After several months, defendants moved to traverse and quash the wiretap
authorizations, again seeking to have the supporting documents unsealed. The trial court
indicated that it would conduct in camera review as it “deem[ed] appropriate” to address
the motion and again invited counsel to submit questions.
The court denied the motion in a written order dated July 27, 2012. In its order,
the court stated that it held an in-camera hearing on the motion on an “unspecified date”
during which it called DEA agents and one or more confidential informants and “asked
some or all of the questions” submitted. The court concluded that the “wiretap
applications do not include false statements made knowingly and intentionally or with
reckless disregard for the truth,” and therefore there was no “reasonable probability that
[defendants] would prevail on a motion to traverse.” The court also found that the facts
set forth in the sealed and unsealed documents “provided probable cause to believe the
target subject was in the business of narcotics sales, the wiretaps would intercept
communications regarding narcotics sales, and the target subject would be
20
communicating through the intercepted lines.” The court concluded that “normal
investigative procedures were unlikely to succeed and would have jeopardized the
ongoing investigation, and therefore the wiretaps were necessary to investigate the target
subject’s criminal enterprise.” The court restated its previous determination that the
documents were properly sealed and “must remain so.”
2. Applicable legal principles
“In general, California law prohibits wiretapping.” (People v. Zepeda (2001) 87
Cal.App.4th 1183, 1195; § 631.) A court may authorize a wiretap if the application
contains facts showing that “there is probable cause to believe that an individual has
committed, is committing, or is about to commit one or more of the listed crimes
(§ 629.52, subd. (a)); there is probable cause to believe that communications concerning
the illegal activities will be obtained through that interception (§ 629.52, subd. (b)); there
is probable cause to believe that the communications device will be used by the person
whose communications are to be intercepted (§ 629.52, subd. (c)); and ‘[n]ormal
investigative procedures have been tried and have failed or reasonably appear either to be
unlikely to succeed if tried or to be too dangerous’ (§ 629.52, subd. (d) . . . ).” (People v.
Leon (2007) 40 Cal.4th 376, 384.)
Section 1534, subdivision (a) specifies that the contents of a search warrant,
including the supporting affidavit, become public record once the warrant is executed and
returned. Recognizing the need in some cases to protect the identity of a confidential
informant, the California Supreme Court laid out the procedures for trial courts to follow
to determine whether some portion—or even the entirety—of a search warrant affidavit
may remain sealed. (People v. Hobbs (1994) 7 Cal.4th 948, 971-975 (Hobbs).) “The
procedures outlined in Hobbs, supra, [] to protect privileged information apply not only
to search warrants, but also to wiretap authorization orders.” (People v. Sedillo (2015)
235 Cal.App.4th 1037, 1054 (Sedillo).) On appeal, we review the trial court’s rulings for
abuse of discretion. (Hobbs, supra, at p. 976; Sedillo, supra, at p. 1055.)
21
“On a properly noticed motion by the defense seeking to quash or traverse the
search warrant, the lower court should conduct an in camera hearing pursuant to the
guidelines set forth in [Evidence Code] section 915, subdivision (b), and this court’s
opinion in [People v.] Luttenberger [(1990)] 50 Cal.3d [1,] 20-24.” (Hobbs, supra, 7
Cal.4th at p. 972.) “It must first be determined whether sufficient grounds exist for
maintaining the confidentiality of the informant’s identity. It should then be determined
whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e.,
whether the extent of the sealing is necessary to avoid revealing the informant’s identity.”
(Ibid.)
“If the affidavit is found to have been properly sealed, and the defendant has
moved to traverse the warrant, the court should then proceed to determine whether the
defendant’s general allegations of material misrepresentations or omissions are supported
by the public and sealed portions of the search warrant affidavit . . . . Generally, in order
to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit
included a false statement made ‘knowingly and intentionally, or with reckless disregard
for the truth,’ and (2) ‘the allegedly false statement is necessary to the finding of probable
cause.’ ” (Hobbs, supra, 7 Cal.4th at p. 974.) “If the trial court determines that the
materials and testimony before it do not support defendant’s charges of material
misrepresentation, the court should simply report this conclusion to the defendant and
enter an order denying the motion to traverse.” (Ibid.)
“[I]f the affidavit is found to have been properly sealed and the defendant has
moved to quash the search warrant [citation], the court should proceed to determine
whether, under the ‘totality of the circumstances’ presented in the search warrant
affidavit . . . , there was ‘a fair probability’ that contraband or evidence of a crime would
be found in the place searched pursuant to the warrant. [Citations.] In reviewing the
magistrate’s determination to issue the warrant, it is settled that ‘the warrant can be upset
only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence
22
supportive of the magistrate’s finding of probable cause, since it is the function of the
trier of fact, not the reviewing court, to appraise and weigh evidence when presented by
affidavit as well as when presented by oral testimony.’ ” (Hobbs, supra, 7 Cal.4th at
p. 975.) Similarly, “[a] wiretap must be supported by a finding of probable cause,
necessity, and minimization.” (Sedillo, supra, 235 Cal.App.4th at p. 1055.) “If the court
determines, based on its review of all the relevant materials, that the affidavit . . .
furnished probable cause for issuance of the warrant . . . [citation], the court should
simply report this conclusion to the defendant and enter an order denying the motion to
quash.” (Hobbs, supra, at p. 975.) “In all instances, a sealed transcript of the in camera
proceedings, and any other sealed or excised materials, should be retained in the record
along with the public portions of the search warrant application for possible appellate
review.” (Ibid.) On appeal, we review the trial court’s rulings for abuse of discretion.
(Id. at p. 976; Sedillo, supra, at p. 1055.)
3. Analysis
Defendants claim the trial court erred by relying on Evidence Code sections 1040
through 1042 and the procedure set forth in Hobbs, supra, 7 Cal.4th 948 to evaluate their
motion to compel discovery of the unredacted documents supporting the wiretap
authorizations.
We disagree. Defendants completely overlook two published decisions, i.e.,
Sedillo, supra, 235 Cal.App.4th 1037 and People v. Acevedo (2012) 209 Cal.App.4th
1040 (Acevedo), which have expressly held to the contrary. Defendants do not cite
Sedillo or Acevedo in their briefing, let alone attempt to explain why this court should not
follow their reasoning.
We find the analysis in Sedillo and Acevedo compelling. A defendant’s right to
challenge the affidavit supporting a wiretap authorization or right to disclosure of the
entirety of its contents cannot be absolute but rather must be balanced against the
“privileges that protect official information and the identity of confidential informants.”
23
(Acevedo, supra, 209 Cal.App.4th at p. 1055.) The procedures set forth in Hobbs strikes
that balance thereby “ ‘assur[ing] the defendant[s] of a judicial check on possible police
misrepresentations, while preventing both unfounded fishing expeditions and inadvertent
revelations of the identity of confidential police informants.’ ” (Acevedo, supra, at
p. 1057.) As a result, we find that the trial court did not err in applying Evidence Code
sections 1040 through 1042 and the procedure set forth in Hobbs in evaluating
defendants’ motion to compel disclosure of the affidavits supporting the wiretap
authorizations.
Defendants have also asked that this court independently review the sealed
materials related to their motions to unseal, quash, and traverse the wiretap authorizations
as well as their motion to suppress the wiretap evidence. The Attorney General did not
object to this request.
We have reviewed the sealed and public portions of the wiretap affidavits. We
conclude that the court properly ordered the sealed portion of the transcript to remain
sealed to protect the identity of the confidential informant(s). (Hobbs, supra, 7 Cal.4th at
pp. 972-973.) Additionally, we find that under the totality of circumstances presented in
the affidavits, there was a fair probability that communications concerning the crimes
would be found pursuant to the wiretaps. (Hobbs, supra, at p. 975; Sedillo, supra, 235
Cal.App.4th at p. 1055.) Therefore, the court properly denied defendants’ motions to
quash and traverse the search warrant and suppress evidence.
B. Motion to suppress evidence obtained through GPS tracking device
Jose claims that the trial court erred in denying his motion to suppress evidence
seized as a consequence of the installation of GPS vehicle trackers on the RV, because
that vehicle was parked within the curtilage of the Gilroy residence. We conclude that
the driveway of that residence was not within the curtilage of the residence and that
placing the GPS devices on the RV did not violate the Fourth Amendment.
24
1. Relevant background
Jose moved to suppress the evidence discovered during the search of the RV
following the traffic stop in Omaha, Nebraska, arguing that agents “invad[ed] the
curtilage” of the Gilroy residence while placing GPS trackers on that RV. The RV’s
subsequent detention in Nebraska was unlawful, according to Jose, because it was the
“illegally attached” GPS tracking devices which led the DEA to connect Jose
Melendez-Ramirez to the RV and create a profile for him in the DEA database as a
suspected drug trafficker.
In opposition, the prosecutor asserted that Jose did not have standing to challenge:
(1) the entrance onto the Gilroy property, as well as the placement of the GPS devices; or
(2) the detention of the RV in Nebraska.
a. Evidence regarding Jose’s privacy interest in RV
At the November 27, 2012 hearing on the motion to suppress, Jose testified
regarding his privacy interest in the RV. According to Jose, he purchased the RV in
October 2008 along with the Melendez-Ramirezes. Jose paid $90,000 of the $134,000
purchase price and the Melendez-Ramirezes paid the balance. The RV was registered to
the Melendez-Ramirezes because Jose “knew that the RV was going to transport drugs”
and he did not want his name associated with it. However, Jose paid for all the
maintenance on the RV, including purchasing new tires.
As to the Gilroy residence, Jose testified that he directed Gamboa to rent it in
November 2008. Jose told Gamboa to rent a “stand alone” house with a fence encircling
the entire property. Jose paid the rent and all of the utility bills for the property. He slept
overnight at the Gilroy residence twice and had the only set of keys to it, but no one
“actually live[d]” in the residence until December 2008. Jose initially planned to live in
the Gilroy house himself, but in December 2008, he allowed the Melendez-Ramirezes to
move in.
25
Following Jose’s testimony, the prosecutor introduced several exhibits including:
(1) subpoenaed documents from the RV dealership that sold the RV; (2) rental records for
the Gilroy residence; and (3) a DMV printout of the RV’s registration history.
After reviewing the evidence, the trial court found that Jose had demonstrated by a
preponderance of the evidence that he had standing to “assert Fourth Amendment
violations as to the RV for both the GPS installation and the stop in Nebraska.”
b. Evidence regarding attachment of GPS devices
In November 2008, agents learned of the Gilroy residence and the RV, which
corroborated information they had received from confidential informants, as well as
Jose’s discussion of an RV in several wiretapped conversations. The RV was registered
to Virginia and Jose Melendez-Ramirez.
On November 26, 2008, Donlin and another DEA agent conducted surveillance at
the Gilroy residence, taking photographs of the residence and an RV parked in the
driveway. A wrought iron fence, with a pedestrian gate and driveway gate, ran along the
front of the property.
At around 2:00 a.m. on December 16, 2008, Donlin, Herrera, and a third DEA
agent drove to the Gilroy residence and parked by an orchard on the adjacent property to
the west of the Gilroy property. The agents crossed a culvert which appeared to separate
the two properties and approached the Gilroy property from the west. There was no
fence separating the properties and the grass in the area was “muddy” and “unkempt,”
unlike the manicured lawn in the front of the Gilroy residence. There were no signs
posted warning against trespass.
The agents approached the 136-foot driveway which extended all the way from the
street, made a right turn at the corner of the residence, and ended at a detached garage.
The RV was parked in the driveway, with its rear end approximately 30 feet from the
garage and its front end approximately seven feet from the closest point of the residence
26
itself. The driveway was illuminated by a light attached to a utility barn on the western
edge of the driveway.
While the other agents kept a lookout, Herrera crawled under the RV and affixed a
battery-powered GPS tracking device on its undercarriage. Herrera estimated it took him
about two minutes to attach the device, after which the agents retraced their steps to leave
the property.
That same morning, Herrera logged into the GPS tracking software and learned
that the tracking device was not sending a signal, so he and Donlin, along with a Santa
Clara County sheriff’s deputy, Josh Singleton, returned to the Gilroy residence around
11:00 p.m. The three men parked in the same location as before and again entered the
Gilroy property from the west. Herrera and Singleton went under the RV, where Herrera
repositioned the first tracking device so that the antenna was closer to the outside of the
vehicle while Singleton attached a second GPS tracking device.15 Again, it took
approximately two minutes to both reposition the first device and place the second one.
The next morning, Herrera confirmed that both tracking devices were “emitting their
location.”
Over the next few days, Herrera and other agents maintained surveillance on the
Gilroy property. Herrera believed that, based on intercepted telephone calls and activity
observed in and around the RV, the DTO was preparing the RV to travel to Los Angeles
to pick up drugs. At around 10:15 a.m. on December 20, 2008, Donlin and Herrera were
notified that the tracking devices showed the RV was moving. Using the GPS signal,
Herrera and Donlin located the RV at a gas station in San Martin. They observed Jose
and Melendez-Ramirez pumping gasoline into the RV and filling the propane tanks.
15
Singleton testified that Herrera worked on the first transmitter “towards the back
of the vehicle” while he went up “a little bit further towards the front . . . [and] crawled
underneath it” to place the second transmitter.
27
The agents then followed the RV to a parking lot at a shopping mall in Gilroy. Jose and
Jose Melendez-Ramirez got out of the RV and began looking at the tires, climbing onto
the roof and examining what looked like an air conditioning unit. A few minutes later,
the agents saw Virginia Melendez-Ramirez and her daughter arrive in a separate vehicle
and begin loading groceries into the RV.
After his surveillance of Melendez-Ramirez with the RV, Herrera created a profile
for him in a DEA database which included a physical description and the following
narrative: “ ‘[A]ssisted Jose Vargas-Alvarez prepping RV for suspected run to Los
Angeles for narcotics. Jose Melendez-Ramirez is suspected to be interstate driver for
Jose Vargas-Alvarez.’ ”
On either December 22 or 23, 2008, agents learned through intercepted phone
calls that Jose and Gamboa found and removed one of the tracking devices on the RV.
Herrera believed the second tracking device stopped functioning sometime between
January 1 and January 6, 2009. Agents conducted spot checks of the Gilroy property but
the RV was not there and as of January 6, 2009, Herrera and the other agents had “no
idea” where it had gone.
When Herrera returned to the property in preparation for the hearing on the motion
to suppress, he observed that a fence had been installed along its western boundary.
However, even that new fence would not have impeded their access to the property if it
had been in place in 2008 because it did not extend all the way to the public road.
After hearing argument from the attorneys, the trial court denied the motion to
suppress, finding that the RV was not parked within the curtilage of the Gilroy residence
and that the agents entered the property through an “open field.”
2. Applicable legal principles
a. Standard of review
The Fourth Amendment to the United States Constitution requires state and
federal courts to exclude evidence from unreasonable searches and seizures. (People v.
28
Williams (1999) 20 Cal.4th 119, 125.) Section 1538.5 allows a defendant to move to
suppress evidence obtained in an improper seizure. Our standard of review is well
established. “In reviewing a trial court’s ruling on a motion to suppress, we defer to the
trial court’s factual findings, express or implied, where supported by substantial evidence.
[Citation.] And in determining whether, on the facts so found, the search was reasonable
for purposes of the Fourth Amendment to the United States Constitution, we exercise our
independent judgment.” (People v. Simon (2016) 1 Cal.5th 98, 120.)
b. Curtilage and open fields
The Fourth Amendment to the United States Constitution prohibits warrantless
searches of places where someone has a reasonable expectation of privacy. (Coolidge v.
New Hampshire (1971) 403 U.S. 443, 454.) In Oliver v. United States (1984) 466 U.S.
170, the United States Supreme Court “recognized that the Fourth Amendment protects
the curtilage of a house and that the extent of the curtilage is determined by factors that
bear upon whether an individual reasonably may expect that the area in question should
be treated as the home itself.” (United States v. Dunn (1987) 480 U.S. 294, 300 (Dunn).)
Dunn articulated the relevant factors a court should use to determine whether a location
falls within the curtilage, including “the proximity of the area claimed to be curtilage to
the home, whether the area is included within an enclosure surrounding the home, the
nature of the uses to which the area is put, and the steps taken by the resident to protect
the area from observation by people passing by.” (Id. at p. 301.) However, “these factors
are useful analytical tools only to the degree that, in any given case, they bear upon the
centrally relevant consideration—whether the area in question is so intimately tied to the
home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment
protection.” (Ibid.)
3. Analysis
Applying the Dunn factors to the facts of this case, we conclude the trial court was
correct in finding that the RV was not encompassed within the curtilage of the Gilroy
29
residence and the agents did not violate the Fourth Amendment in accessing the property
and placing tracking devices on that vehicle.
First, the proximity of the driveway to the Gilroy residence does not clearly weigh
in favor of concluding that the driveway was part of the home’s curtilage. The 136-foot
long driveway extended from the public road, past the residence, and ended at a detached
garage structure. The RV was parked on that driveway with its rear approximately 30
feet from the garage and its front approximately seven feet from the residential structure.
Depending on whether the tracking devices were placed closer to the rear or the front of
the 39-foot long vehicle—facts which are not precisely disclosed in the record—the
agents were anywhere between 46 and seven feet from the residence when they crawled
underneath the RV.
The second Dunn factor examines “whether the area is included within an
enclosure surrounding the home.” (Dunn, supra, 480 U.S. at p. 301.) This factor favors
the prosecution. The agents testified that, while a 62-inch tall wrought iron fence ran the
length of the front of the property, there was no fencing at all along its western boundary.
Anyone entering the property from the west could walk unimpeded through muddy,
unmown grass, across the driveway, past the RV, and reach the residence.
Third, the occupants of the Gilroy residence did not incorporate the driveway
closely into the “ ‘ “activity of home life.” ’ ” (Collins v. Virginia (2018) 138 S.Ct. 1663,
1671 [2018 U.S. Lexis 3210].) The driveway was very long and was apparently the only
paved access to the residence from the public road. However, there was no wall or other
enclosure along the driveway for the agents to climb over to access the RV, nor was there
any testimony that any doors from the residence provided direct access to any portion of
the driveway where the RV was parked. (See id. at p. 1670 [driveway partially enclosed
by “height of a car” brick walls with side door directly accessing that portion of
driveway].) The driveway at the Gilroy residence was not an area to which “ ‘ “the
30
activity of home life extend[ed]” ’ ” aside from a means of egress to the public road. (Id.
at p. 1671.)
Finally, Jose did not take “steps” to “protect the area [of the driveway] from
observation.” (Dunn, supra, 480 U.S. at p. 301.) There were no “No Trespassing” signs
posted anywhere on the property, there was no fence or other such structure along its
western boundary, and even the fence along the front of the property was neither solid
nor especially tall. There was no carport or other structure protecting the RV from view.
Any activities the residents undertook on the driveway would have been visible as well.
Nothing obstructed a pedestrian’s path from the western side of the property to the
driveway, aside from mud and tall grass.
Furthermore, even if the driveway itself were considered curtilage, “the law is
clear that not every technical trespass onto the curtilage amounts to a search. Just like
any other visitor to a residence, a police officer is entitled to walk onto parts of the
curtilage that are not fenced off. ‘Whether a driveway is protected from entry by police
officers depends on the circumstances. The fact that a driveway is within the curtilage of
a house is not determinative if its accessibility and visibility from a public highway rule
out any reasonable expectation of privacy.’ ” (People v. Zichwic (2001) 94 Cal.App.4th
944, 953.)
As a result, the trial court did not err in denying Jose’s motion to suppress
evidence based on the placement of the GPS trackers on the RV at the Gilroy residence as
he had no reasonable expectation of privacy in the driveway where that vehicle was
parked.
C. Suppression of evidence seized in detention of the RV in Nebraska
Jose next argues claims that his motion to suppress should have been granted
because the detention of the RV in Nebraska was unduly prolonged and that Jose
Melendez-Ramirez was unlawfully detained at the time he consented to a search of the
RV. We disagree, for two reasons. Contrary to the trial court, we find that Jose did not
31
have a privacy or property interest in the RV which would enable him to challenge the
Nebraska traffic stop. But, even if he did, the stop was not unduly prolonged under the
totality of the circumstances and Melendez-Ramirez’s consent to search was valid.
1. Evidence regarding traffic stop of the RV in Nebraska
Douglas County Sheriff’s Deputies Edward Vanburen and Jason Bargstadt
testified at the suppression hearing regarding the detention of the RV on Interstate 80 in
Nebraska. On January 19, 2009, around 1:00 p.m., Vanburen and Bargstadt were
patrolling Interstate 80 as part of a “criminal interdiction” unit, specifically tasked with
looking for anyone “using the interstate or highway system to commit major crimes[]
[such as] trafficking in guns, stolen property, drugs, drug proceeds, terrorist activity,
[etc.]”
Vanburen had worked as a trainer for that unit for 10 years and had been involved
in “well over” 200 interdiction investigations over his career. He had completed over
300 hours of criminal interdiction training which covered a wide range of topics,
including how to examine vehicles for evidence of criminal activity, such as hidden
compartments, and how drivers and passengers may behave when contacted by law
enforcement. In his training, Vanburen learned about common travel routes, driving
patterns, as well as how to conduct traffic stops safely and efficiently. At the time of the
stop, Vanburen was supervising five K-9 deputies, including Bargstadt. Bargstadt had
also received training on criminal interdiction and had participated in over 100 such
investigations since 2005.
Vanburen learned from a Nebraska State Patrol trooper stationed near Lincoln that
a large motor home was travelling eastbound on Interstate 80. The trooper thought the
vehicle was “slightly suspicious” and was “out of place for the area, date, and time, and
season.” Vanburen testified that “[v]ery few” RVs travel the highway during winter.
Bargstadt elaborated that the icy roads are dangerous for vehicles of that size and an
RV’s water lines and tanks are subject to freezing.
32
Vanburen was driving westbound on Interstate 80, but turned around after he saw
the RV traveling eastbound. He contacted Bargstadt, who informed him that he had also
seen the RV and was following it. Less than a mile after Bargstadt began following the
RV, he saw that it “began to veer out of its lane, . . . and drive onto the shoulder, crossing
the white fog line with its dualie wheels.” Bargstadt testified that driving on the shoulder
was a violation of the Nebraska State Traffic Code. The RV drove on the shoulder for no
more than 10 seconds before it corrected onto the roadway. However, perhaps 30
seconds later, it drifted onto the shoulder again for less than five seconds.
Based on the erratic driving, Bargstadt decided to conduct a traffic stop of the RV
at 1:06 p.m. Vanburen, who had caught up to Bargstadt and the RV, pulled his vehicle
behind them on the side of the highway around 1:07 p.m.
Bargstadt approached the passenger side of the RV and asked the driver, identified
as Jose Melendez-Ramirez, to step out of the vehicle with his driver’s license and
registration so they could talk. After Jose Melendez-Ramirez exited the RV, Bargstadt
informed him that he had stopped him for driving on the shoulder and asked for his
license, registration, and proof of insurance. Bargstadt asked if he was tired, how long he
had been driving that day, and whether he felt he was okay to continue driving. In
accordance with Bargstadt’s “common practice,” he asked Melendez-Ramirez to come
back to his patrol car while he wrote a citation and checked Melendez-Ramirez’s
documents so they could avoid standing outside in below-freezing weather.
Melendez-Ramirez climbed into the front passenger seat of Bargstadt’s patrol car
and their conversation in the vehicle was recorded. As Bargstadt filled out his reports
log, ran the RV’s registration through “state records,” and conducted a criminal history
check of Melendez-Ramirez, Bargstadt asked him about his trip. Melendez-Ramirez
replied that he and his family were traveling to Kansas City, Missouri. Bargstadt was
suspicious and asked why they were not taking Interstate 70, as that was the more direct
route to Kansas City from California.
33
In the meantime, Vanburen contacted Virginia Melendez-Ramirez and her
daughter in the RV and they invited him into the vehicle. Vanburen remained just inside
the entrance and talked to them for approximately five minutes. He asked Virginia about
their “travel itinerary” and she replied they were headed to Kansas City to visit her
husband’s cousins. Virginia said they were thinking of moving to Kansas City, but she
had no relatives there, and that her husband was unemployed and recently had to sell his
catering business.
About 1:13 p.m., Vanburen walked over to Bargstadt’s patrol car and asked Jose
Melendez-Ramirez to join him in his patrol car so that Bargstadt could complete an
“EPIC check” of Jose. Once in Vanburen’s vehicle, Melendez-Ramirez told him that
they were traveling to Kansas City to visit both his cousins and his wife’s cousins, even
though Virginia had just told Vanburen she had no relatives in that city. When asked,
Melendez-Ramirez could not provide his cousins’ names or any contact information for
them and said he had not seen them in five or six years. Melendez-Ramirez appeared
surprised by these questions and told Vanburen they intended to stay with some friends,
but again could not provide the names of these friends. Given that Melendez-Ramirez
was traveling halfway across the country, Vanburen found it odd that he did not know the
names of the people whom they were visiting. Despite having just told Vanburen that he
had not seen his cousins in five or six years, Melendez-Ramirez then said that he had just
been to Kansas City about a month ago. First he said that his wife was with him on that
recent visit, but then he said that his daughter came with him. Vanburen asked
Melendez-Ramirez about his employment and he replied that he owned a bakery, but it
was “closed while he was out of town.” Vanburen thought this was strange since
Virginia had said he was unemployed and had recently sold his business. When
confronted with this information, Melendez-Ramirez said that “he didn’t tell her.”
In the meantime, Bargstadt conducted the EPIC (El Paso Information Center)
check and as he waited for the results, he had decided not to issue a citation for driving
34
on the shoulder, but would instead let Melendez-Ramirez continue his trip with a
warning. The EPIC dispatcher informed Bargstadt at 1:16 or 1:17 p.m. that
Melendez-Ramirez was under active investigation by the DEA. Bargstadt got the name
of a DEA case agent from the EPIC dispatcher and attempted to contact the agent but was
not successful.
According to Vanburen’s notes, his conversation with Melendez-Ramirez lasted
about four minutes. He got out of his car and walked up to Bargstadt’s vehicle, telling
him he was suspicious and he thought “that vehicle’s loaded.” Bargstadt informed
Vanburen of the EPIC hit. At this point, based on the conflicting suspicious responses
from Melendez-Ramirez and his wife about their travel plans, the indirect route to Kansas
City, the fact they were driving an RV through Nebraska in the dead of winter, and the
EPIC hit, Vanburen and Bargstadt suspected that the Melendez-Ramirezes were engaged
in drug trafficking.
At about 1:19 p.m., Vanburen asked Melendez-Ramirez if there were any drugs,
weapons, or large amounts of money in the RV. Melendez-Ramirez told Vanburen he
could check the vehicle. Bargstadt gave Melendez-Ramirez a consent-to-search form,
along with his license and registration, around 1:24 or 1:25 p.m. At Vanburen’s request,
Melendez-Ramirez read the form aloud before signing it at 1:26 p.m. or 1:27 p.m.
Vanburen told Melendez-Ramirez several times, both before and after he signed, that he
had the right to refuse consent to search and that he was free to leave. Vanburen also told
him that he could withdraw his consent at any time during the search and tell them he
wanted to leave. Vanburen also told Virginia that she could decline the search at any
time and they were free to leave.
Melendez-Ramirez gave consent to search about 20 minutes after the stop
commenced. Officers began searching the RV and ultimately discovered a hidden
compartment in the floor of the vehicle containing 100 kilograms of cocaine.
35
2. Applicable legal principles
It is settled “that a defendant can urge the suppression of evidence obtained in
violation of the Fourth Amendment only if that defendant demonstrates that his Fourth
Amendment rights were violated by the challenged search or seizure.” (United States v.
Padilla (1993) 508 U.S. 77, 81.) “[I]n order to claim the protection of the Fourth
Amendment, a defendant must demonstrate that he personally has an expectation of
privacy in the place searched, and that his expectation is reasonable; i.e., one that has ‘a
source outside of the Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized and permitted by
society.’ ” (Minnesota v. Carter (1998) 525 U.S. 83, 88.)
“[O]wnership of a vehicle is largely irrelevant to the question of whether a given
defendant has standing to challenge the stop of that vehicle.” (United States v. Powell
(7th Cir. 1991) 929 F.2d 1190, 1194 (Powell).) Powell explained that, when examining a
defendant’s Fourth Amendment rights, courts must “distinguish between different
government intrusions that implicate different constitutionally protected interests.
Searches implicate expectations of privacy in the places or things searched. Possessory
interests are often important in deciding who has standing to challenge a search because
of our society’s shared belief that, to a greater or lesser extent, ownership carries with it a
right to exclude. Ownership creates, in other words, an expectation of privacy ‘that
society is prepared to recognize as “reasonable.” ’ [Citation.] The Fourth Amendment
protects this expectation.” (Id. at pp. 1194-1195.) “By contrast to the expectation of
privacy in places and things implicated by a search, the interests implicated by a vehicle
stop are motorists’ ‘freedom from random, unauthorized, investigatory seizures’
[citation] and the interest in avoiding the ‘substantial anxiety’ [citation] these stops may
create. Both these interests are personal to the driver and passengers in the car stopped,
who have their travel interrupted by the sight of a state patrol cruiser or police car
looming large in the rear view mirror, are detained on the side of the road, have their
36
identifying documents inspected by the trooper or policeman, and may even be asked to
leave their vehicles for the duration of the questioning.” (Id. at p. 1195.)
3. Analysis
The trial court found that Jose had a legitimate expectation of privacy in the RV
implicated by the Nebraska stop because he had supplied $90,000 of the $134,000
purchase price and also paid to maintain the vehicle.
However, even assuming, as the trial court found, that Jose having supplied the
money for the purchase of the RV and its upkeep were enough to establish ownership of
the vehicle, it is undisputed that he was not in the RV when Deputy Bargstadt stopped the
vehicle for driving on the shoulder. Because vehicle owners who are absent at the time
their vehicle is stopped cannot challenge the stop, the trial court erred in concluding that
Jose had standing to raise the instant Fourth Amendment claim.
Because “the intrusion a vehicle stop causes is personal to those in the car when it
occurs,” a vehicle owner, such as Jose, “who is not in his car at the time it is stopped
should not, absent unusual circumstances not present in this case, have standing to object
to the stop.” (Powell, supra, 929 F.2d at p. 1195.) Jose, whose name did not appear on
the vehicle registration and thus had no apparent ownership interest in the vehicle,
essentially bestowed that vehicle upon the Melendez-Ramirezes for the purposes of their
cross-country trip. We fail to see how these facts are not dispositive of his assertion of a
reasonable expectation of privacy in the vehicle. Once the Melendez-Ramirezes began
their trip, Jose had no (direct) control over where they went and what happened to the
vehicle. The Melendez-Ramirezes could have sold, exchanged, or even abandoned the
vehicle in Salt Lake City or Dallas or Alberta, Canada and Jose would have no legal
recourse against them. Having set them up as strawmen owners to camouflage his
interest in a vehicle he was using to smuggle drugs, it is incongruous to permit Jose to
step in and assert a privacy interest when that vehicle is stopped and the smuggled drugs
37
are discovered. As a result, we find that Jose had no reasonable expectation of privacy in
the RV and had no basis for moving to suppress the evidence seized in Nebraska.
However, even if Jose did have such a privacy interest, the trial court did not err in
denying his motion to suppress because that traffic stop did not violate the Fourth
Amendment.
“The law is settled that in Fourth Amendment terms a traffic stop entails a seizure
of the driver [and passengers] ‘even though the purpose of the stop is limited and the
resulting detention quite brief.’ ” (Brendlin v. California (2007) 551 U.S. 249, 255.)
“[I]nvestigative activities beyond the original purpose of a traffic stop, including warrant
checks, are permissible as long as they do not prolong the stop beyond the time it would
otherwise take.” (People v. Brown (1998) 62 Cal.App.4th 493, 498.) However,
“[c]ircumstances which develop during a detention may provide reasonable suspicion to
prolong the detention.” (People v. Russell (2000) 81 Cal.App.4th 96, 102 (Russell).)
In People v. Arebalos-Cabrera (2018) 27 Cal.App.5th 179 (Arebalos-Cabrera), a
CHP officer observed defendant’s tractor-trailer weaving and speeding on the freeway.
(Id. at p. 184.) After he was pulled over, defendant handed “his driver’s license, logbook,
and paperwork for the trip” to the officer and exited the cab as requested. (Ibid.) The
officer asked defendant about his logbook which showed defendant had not taken any
trips in his vehicle for about a month and the officer believed that was unusual.
Defendant appeared to be nervous during this conversation and, approximately five to 10
minutes after the stop, another CHP officer arrived. The second officer ran a check on
defendant’s driver’s license and tractor-trailer, while the first officer had defendant
perform a field sobriety test. Defendant did not appear to be impaired, so the officer
returned his documents and said defendant was free to leave. As defendant began to walk
back to the tractor-trailer, the officer asked if he could search the vehicle. Defendant
consented to a search, “both orally and in writing.” (Ibid.) Fifteen to 20 minutes had
elapsed from the time defendant was pulled over to his giving consent to search.
38
A police dog trained to detect narcotics examined the tractor and found two secret
compartments, one of which contained more than 10 kilograms of heroin and more than
four kilograms of methamphetamine. (Id. at pp. 183-184.)
On appeal from the denial on the motion to suppress, the court concluded that
defendant was not detained when he provided his consent to search and thus there was no
Fourth Amendment violation. (Arebalos-Cabrera, supra, 27 Cal.App.5th at p. 185.) The
court noted that the officer asked reasonable questions of defendant and conducted the
field sobriety test for about 15 to 20 minutes. The second CHP officer did not engage in
“any unusual show of authority.” (Id. at p. 189.) “Because [the officer] had returned
Arebalos’s documents, told him he was free to leave, and allowed him to walk partway
back to his vehicle, a reasonable person in Arebalos’s position would in fact believe he
was free to go when [the officer] asked for consent. Arebalos was no longer detained at
that time.” (Ibid.)
In this case, Melendez-Ramirez offered to let the officers search the RV when
Vanburen asked if there were any drugs or weapons in it. After Melendez-Ramirez made
that offer, Bargstadt gave him a consent-to-search form along with his driver’s license
and registration. As Melendez-Ramirez was reading the form aloud and before he signed
it, Vanburen told him several times that he was free to leave, could refuse to allow
officers to search the RV, and could even withdraw his consent after the search began.
Because a reasonable person in the same position would believe he was free to go,
Melendez-Ramirez “was no longer detained at that time.” (Arebalos-Cabrera, supra, 27
Cal.App.5th at p. 189.)
Furthermore, Melendez-Ramirez’s detention was not unduly prolonged. The
officers held onto his driver’s license and other paperwork only for the amount of time
required to run those documents and for Bargstadt to run the EPIC check. From the time
he was pulled over to the time he signed the consent form, approximately 15 to 20
minutes elapsed. The questioning was not, as Jose contends, an unauthorized “fishing
39
expedition” but rather consisted of reasonable questions regarding the
Melendez-Ramirezes’ itinerary and travel plans prompted in large part by the fact that it
was highly unusual and therefore suspect for anyone to be driving an RV through
Nebraska in mid-winter. In addition, all of this questioning took place while Bargstadt
was checking the paperwork and calling EPIC.
Moreover, an officer may prolong a detention where developing circumstances
give rise to reasonable suspicion. (Russell, supra, 81 Cal.App.4th at p. 102.) Reasonable
suspicion arises when an officer has a “ ‘particularized and objective basis’ ” for
suspecting the person has committed or is about to commit a crime. (United States v.
Arvizu (2002) 534 U.S. 266, 273.) In evaluating an officer’s claim of reasonable
suspicion, the court looks to “ ‘ “both the content of information possessed by police and
its degree of reliability[,]” ’ [citation] . . . tak[ing] into account ‘ “the totality of the
circumstances . . . .” ’ ” (People v. Brown (2015) 61 Cal.4th 968, 981.)
In this case, the inconsistent and, in some cases unbelievable, answers that Jose
Melendez-Ramirez and Virginia Melendez-Ramirez gave to Vanburen when he talked to
them individually gave the officers a reasonable suspicion of criminal activity. Jose
Melendez-Ramirez was visiting family and/or friends in Kansas City, but he could not
recall anyone’s name or contact information. He had not visited his cousins in several
years, but then he had traveled to Kansas City about a month ago with his wife. Or
perhaps it was his daughter. The RV was traveling on Interstate 80 to Kansas City from
California, even though Interstate 70 was a more direct route. Jose Melendez-Ramirez
owned a bakery, which was closed while he was gone, but according to Virginia, he was
not employed and had recently sold his catering business. These inconsistent statements
and the other circumstances, such as the incongruity of an RV with California license
plates traveling through Nebraska in the middle of winter, combined with the deputies’
training and experience in criminal interdiction, reasonably led them to believe that the
40
Melendez-Ramirezes were involved in drug trafficking and that further investigation was
justified.
D. Admission of wiretap recordings and transcripts
Defendants argue that admission of the numerous audio recordings that were not
played in court and the accompanying transcripts violated the hearsay rule as well as their
constitutional rights to due process and confrontation. We find that defendants have
waived this argument by failing to object, but even assuming no waiver, the claim is
without merit.
1. Relevant background
Before trial, the prosecutor moved to admit the audio of the wiretap recordings and
associated transcripts into evidence, and the trial court advised the parties that it would
hold an Evidence Code section 402 hearing (402 hearing) prior to Dalida testifying in
front of the jury regarding her identification of the voices on those recordings. The
prosecutor stated he would call Dalida and Gamboa to lay the foundation for admission
of the transcripts and recordings. Jose’s counsel asked that all of the recordings “be
played to the jury so that they can hear the voice sounds and in that way discharge their
responsibility as . . . fact finders.” When the prosecutor indicated his intent to play all of
the recordings and provide the jury with transcripts which included Dalida’s
identifications of the speakers, Jose’s counsel objected.
The court responded that the purpose of the 402 hearing was to determine if there
was a sufficient basis to associate a particular voice with a particular defendant, and “[i]f
it is a sufficient basis to go to the jury, then the appropriate way for introduction of
evidence in a foreign language is exactly as counsel indicated, they get a binder and it has
the designation of who stated what, that’s already been—a foundation has already been
laid. The jury’s free to disagree with it, you’re free to cross-examine on it.” The court
further cautioned that it would exclude the evidence “[i]f I don’t believe the jury could
reasonably conclude the foundational fact or authentication.”
41
At the 402 hearing, Gamboa first explained how she knew the defendants before
the prosecutor played 10 wiretap recordings and asked Gamboa to identify the voices on
each call. Gamboa identified Jose’s voice on nine of the calls, Guillermo’s voice on one
call, and Emanuel’s voice on one call.
Dalida testified that “[a]bout 80 percent” of her job as a wiretap monitor “was to
identify voices on a wiretap.” To do so, she would rely on the phone numbers, the
context of the conversations, the people with whom they spoke, distinctive vocal
characteristics, and self-identification if it occurred. The court ruled that Dalida could
offer her opinion to the jurors regarding the identities of the speakers and that defendants’
objections to her authentication of the voices “go to the weight, rather than the
admissibility” of that evidence.
At trial, Dalida testified that she had reviewed and prepared all of the transcripts
contained in the wiretap binder, People’s exhibit 32. When the court admitted the binder
in evidence, it admonished the jurors that, although the transcripts identified individuals
“as participants in the phone calls,” that was “just for labeling purposes and for following
[along with the audio].” The court reminded the jurors they were ultimately responsible
for determining the identities of the participants on the calls. The prosecutor then played
39 of the 87 corresponding audio recordings. Dalida identified each defendants’ voice on
at least one call.
During Gamboa’s trial testimony she identified Jose’s voice on multiple calls and
Emanuel’s voice on one call.
2. Waiver
When a party raises an objection, the party is obligated to make some effort to
obtain a ruling on that objection from the court. “[W]hen the point is not pressed and is
forgotten the party will be deemed to have waived or abandoned the point and may not
raise the issue on appeal.” (People v. Brewer (2000) 81 Cal.App.4th 442, 461.)
42
It appears from the record the prosecutor intended to play all of the audiotapes in
open court, and more importantly, defense counsel supported that course of action. For
undisclosed reasons, the prosecutor only played certain recorded calls, but regardless, the
court admitted the CD containing all of the audio files as well as the binder containing all
of the transcripts of those calls, without objection. In fact, during closing argument,
Jose’s defense counsel urged the jurors to “listen to these tapes,” without specifying any
particular audio calls, and “draw your own conclusions.”
Before the close of evidence, defendants should have requested that all the
recordings be played in front of the jury and the transcripts read in open court. By failing
to do so, we presume they were content to have the jury hear only those calls which were
played and for the jury to have the entirety of the calls and transcripts for their review
during deliberations.
3. Defendants’ claim lacks merit
The trial court, in any event, did not err by allowing the jury to take the unplayed
recordings and accompanying transcripts into the jury room. The exhibits were admitted
in evidence in their entirety. The jury, therefore, was entitled to review them during
deliberations. “ ‘[The] law allows the jury to take with them into the jury room all
exhibits except depositions.’ ” (People v. Douglas (1977) 66 Cal.App.3d 998, 1006.)
Defendants rely mainly on the Ninth Circuit Court of Appeal’s decision in United
States v. Noushfar (9th Cir. 1996) 78 F.3d 1442, but we find that case is inapposite. In
Noushfar, undercover agents surreptitiously recorded a number of potentially
incriminating conversations with the defendants. (Id. at p. 1444.) Over defense
counsel’s “vigorous objections,” the lower court allowed the jury, while in deliberations,
to listen to 14 tapes of those conversations—none of which had been played in open
court. (Ibid.) The Ninth Circuit found this constituted structural error as it was a
violation of the federal rule of criminal procedure which guaranteed the defendant a right
to be present during the introduction of evidence against him and, “possibly, the
43
Confrontation Clause.” (Id. at p. 1445; Fed. Rules Crim. Proc., rule 43(a).) By
permitting the jury to listen, without instruction from the court, to recordings that had
never been played in open court was “akin to allowing a new witness to testify privately,
without cross-examination, to the jury during its deliberations” (Noushfar, supra, at
p. 1445) and undermined “one of the most fundamental tenets of our justice system: that
a defendant’s conviction may be based only on the evidence presented during the trial.”
(Ibid.)
With due respect to our sister federal courts, “the decisions of the lower federal
courts are persuasive but not controlling.” (In re Tyrell J. (1994) 8 Cal.4th 68, 79,
disapproved on another ground in In re Jaime P. (2006) 40 Cal.4th 128, 139.)
Furthermore, unlike the defendant in Noushfar, defendants here did not object to
admission of the CD and transcripts into evidence, which permitted the jury to review
them at their discretion while deliberating. Defense counsel also had every opportunity
to question Dalida and Gamboa about the calls which were played, and certainly could
have played all the other calls had they desired.
United States v. Franco (9th Cir. 1998) 136 F.3d 622 (Franco) is more analogous
to this case. In Franco, the prosecution introduced audio tape recordings of
approximately 110 conversations—all in Spanish—between several of the defendants.
(Id. at p. 625.) The recordings were admitted in evidence, but not played for the jury in
court. English-language transcripts were also placed in evidence, but only 18 of those
were read in full to the jury. (Ibid.) However, all 110 transcripts were provided to the
jury during deliberations. (Ibid.)
The Ninth Circuit distinguished Noushfar in part because the trial court in that
case had sent the unplayed recordings to the jury “ ‘over vigorous objections,’ ” and the
defendant in Franco had raised no objection in the lower court. (Franco, supra, 136 F.3d
at p. 625.) By failing to object, the defendants had “acquiesced” in the challenged
procedure. (Id. at p. 628.)
44
Under these circumstances, the trial court did not err in sending the CD and
transcripts to the jury room.
E. Ineffective assistance of counsel
Defendants, recognizing that the failure to object may have resulted in waiver,
argue their trial counsel rendered ineffective assistance. We reject this claim as well.
To establish ineffective assistance of counsel, defendants must show that counsel’s
performance was deficient and that they were prejudiced by the deficiency. (People v.
Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, it is defendants’
burden to show a reasonable probability that, but for trial counsel’s errors, the result
would have been different. (Id. at pp. 217-218.) A reasonable probability is one
“ ‘sufficient to undermine confidence in the outcome.’ ” (Id. at p. 218, quoting
Strickland v. Washington (1984) 466 U.S. 668, 693-694.)
As explained above, the CD containing the audio recordings and the entire binder
of transcripts were admitted in evidence. As a result, those exhibits were properly
considered by the jury. An attorney does not provide deficient assistance if he or she
fails to make a meritless objection. (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
Finally, however, assuming there was error, we conclude that defendants cannot
show they were prejudiced thereby because the other evidence elicited at trial
overwhelmingly supports the convictions returned by the jury. Under either the
“harmless beyond a reasonable doubt” test applicable to federal constitutional error
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)) or the “reasonable
probabilities” test applicable to error under California law (People v. Watson (1956) 46
Cal.2d 818, 836-837), the claimed error in providing the jury with the CD and the
accompanying transcripts is not sufficiently prejudicial to warrant reversal.
For example, Jose’s kidnapping conviction was supported by Lopez’s testimony
that Jose arranged to meet with him then drove him to the La Strada apartment, where
Lopez was beaten, bound, thrown into the trunk of a car, transported to the stash house,
45
then held in a kitchen pantry for two or three days. DNA evidence connected Lopez to
the pantry and to the trunk of the BMW. Officers discovered zip ties and an empty
strawberry yogurt container in the garage of the stash house. Emanuel and Guillermo
were convicted of misdemeanor false imprisonment based on this evidence, plus Lopez’s
testimony that he interacted with both of them while he was being held. Gamboa’s
testimony corroborated Lopez’s and she independently implicated all three defendants in
the kidnapping plot.
Turning to the drug-related convictions, the evidence showed that all three
defendants were present at the stash house during the takedown. In the ensuing search of
that location, officers discovered 85 kilograms of cocaine, over half a million dollars in
cash, methamphetamine, firearms, vehicles with hidden compartments, pay/owe ledgers,
and various other indicia of drug sales. Gamboa’s testimony provided a firsthand
account of defendants’ involvement in the DTO.
DEA agents testified they observed Jose getting the RV ready for travel and
Gamboa testified that Jose purchased it for the purpose of smuggling drugs cross-country.
Furthermore, during final argument, Guillermo and Emanuel’s counsel conceded their
guilt as to the drug-trafficking and possession charges. Emanuel’s attorney told the jury:
“He was criminally liable for his activities of the organization. He knew that they were
dealing in drugs, and he participated in that.” Guillermo’s attorney acknowledged that
“Guillermo and Emanuel share exactly the . . . same counts: the conspiracy to traffic
cocaine; . . . the possession of cocaine for sale; the possession of methamphetamine for
sale. [¶] I told you during my opening argument I’m not contesting those facts.
The evidence is overwhelming. I’m not going to . . . try to convince you that there’s a
defense for that. I mean, at the point of the takedown, with that amount of cocaine and
the wiretaps and everything else, the evidence is probably sufficient to find Guillermo
guilty of those three charges.” Given the weight of the evidence, any error in admitting
46
the unplayed recordings and accompanying transcripts was harmless beyond a reasonable
doubt. (Chapman, supra, 386 U.S. at p. 24.)
F. Instructional error regarding identification of defendants on wiretaps
The defendants next argue that the trial court’s instructions to the jury regarding
coconspirators’ statements and Dalida’s identifications of defendants in the wiretap
transcripts lowered the prosecution’s burden of proof, violating their due process rights.
We disagree.
1. Relevant background
During a break in Dalida’s trial testimony, Jose’s attorney again raised his
objection to admission of the wiretap transcripts identifying the speakers on the calls.
The prosecutor argued that “the proper foundation ha[d] been laid for [] Dalida to give
her opinion about the participants” on the call based on “[her] testimony this morning at
the [Evidence Code section] 402 hearing, her testimony on the stand, and then []
Gamboa’s testimony at the 402 hearing on June 28th of 2017.” Jose’s attorney asked that
the court instruct the jury during Dalida’s testimony that it was their role to determine the
identity of the participants and “there must be proof beyond a reasonable doubt as to the
identity.” The court replied that it would give a pinpoint instruction informing the jury
that it was the prosecution’s “ ‘burden, by a preponderance of the evidence, to [] prove
who the voices are in the recording[, and] [i]f [the prosecutor] [has] not satisfied that
burden,’ ” the jury “ ‘must disregard that evidence.’ ”
After Dalida returned to the witness stand, the trial court admitted the binder of
transcripts into evidence and instructed the jury, without objection, as follows:
“[T]here’s labels associated with names of—as participants in the phone calls in these
transcripts. That’s just for labeling purposes and for following [along]. . . . But just
because it’s written down that way, doesn’t mean it’s true. It’s up for [sic] you to
determine. [¶] So, for example, the first one, it says ‘Participants: Vargas-Alvarez, Jose,
aka Pato, Lucas, Pariente.’ That’s in there, and that’s going to help keep track of the
47
testimony. But just because it’s written down doesn’t mean it’s true. That’s one of the
factual findings for you to determine, that it is—after listening to [] Dalida’s testimony, []
Gamboa’s testimony, all of the testimony, you will determine whether, in fact, that is—
Jose [] is one of the participants in the phone call. [¶] If it is, you determine that by a
preponderance of the evidence, then you consider the content of the phone call, along
with all the other evidence. If you’re not persuaded that it’s [] Jose [] on that particular
phone call, then you can’t consider it against him. [¶] So, in other words, basically what
I’m saying is just because it’s labeled that way, doesn’t mean it’s true. It’s for you to
determine whether it’s true or not.”
Prior to deliberations, the court gave the following instruction (CALCRIM
No. 418) on coconspirator statements: “In deciding whether the People have proved the
defendants committed any of the crimes charged, you may not consider any statement
made on the wiretap or statements made by [] Gamboa in furtherance of the alleged
conspiracy unless the People have proved by a preponderance of the evidence that: [¶]
1. Some evidence other than the statement itself establishes that a conspiracy to commit a
crime existed when the statement was made; [¶] 2. Jose, Guillermo, and Emanuel were
members of and participating in the conspiracy when they made the statement; [¶]
3. Jose, Guillermo, and Emanuel made the statement in order to further the goal of the
conspiracy; and [¶] 4. The statement was made before or during the time the defendants
were participating in the conspiracy. [¶] . . . [¶] Proof by a preponderance of the evidence
is a different standard of proof than proof beyond a reasonable doubt. A fact is proved by
a preponderance of the evidence if you conclude that it is more likely than not that the
fact is true.” There was no objection.
2. Applicable legal principles
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court
reviews the wording of a jury instruction de novo and assesses whether the instruction
accurately states the law. [Citation.] In reviewing a claim of instructional error, the court
48
must consider whether there is a reasonable likelihood that the trial court’s instructions
caused the jury to misapply the law in violation of the Constitution. [Citations.] The
challenged instruction is viewed ‘in the context of the instructions as a whole and the trial
record to determine whether there is a reasonable likelihood the jury applied the
instruction in an impermissible manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561,
579.) “Jurors are presumed to understand and follow the court’s instructions.” (People v.
Holt (1997) 15 Cal.4th 619, 662.)
Evidence Code section 1223 authorizes the admission of a coconspirator’s hearsay
statement if: “(a) The statement was made by the declarant while participating in a
conspiracy to commit a crime or civil wrong and in furtherance of the objective of that
conspiracy; [and] [¶] (b) The statement was made prior to or during the time that the
party was participating in that conspiracy.” Evidence Code section 1223 “is a statutory
application of the standard of Evidence Code section 403 to the foundational requirement
of a conspiracy for the purposes of admission of a coconspirator’s statement.” (People v.
Herrera (2000) 83 Cal.App.4th 46, 61.) Where the “proffered evidence is of a
statement . . . of a particular person and the preliminary fact is whether that person made
the statement,” the evidence is inadmissible unless the court first determines there is
sufficient evidence to sustain a finding of that preliminary fact. (Evid. Code, § 403,
subd. (a)(4).)
“If the court admits the proffered evidence under this section, the court: [¶] []
May, and on request shall, instruct the jury to determine whether the preliminary fact
exists and to disregard the proffered evidence unless the jury finds that the preliminary
fact does exist.” (Evid. Code, § 403, subd. (c).) In applying Evidence Code section 403,
“[t]he proper standard is that of preponderance of the evidence.” (People v. Marshall
(1996) 13 Cal.4th 799, 832.)
49
3. Analysis
In this case, the jury was instructed that it could not consider the wiretap calls as
evidence against the defendants unless it found by a preponderance of the evidence that
the recorded statements were actually made by the persons alleged to have made them.
This instruction was correct.
Both the authenticity of an audio recording and the identity of a participant in a
phone call are preliminary facts, which the proponent of that evidence has the burden to
prove. (See, e.g., Evid. Code, § 403, subd. (a)(4) [where proffered evidence is of a
statement and “the preliminary fact is whether that person made the statement”]; Evid.
Code, § 403, subd. (a)(3) [“The preliminary fact is the authenticity of a writing”].) For
party admissions under Evidence Code section 1220, the identity of the declarant is the
only preliminary fact that must be proven. (Evid. Code, §§ 115, 403, subd. (a)(4).)
Where the existence of a preliminary fact is at issue, the proponent must offer evidence
sufficient for the trier of fact to determine that the preliminary fact is more likely than not
to be true. (People v. Herrera, supra, 83 Cal.App.4th at p. 61.)
The trial court’s instruction informed the jury that before it could consider an
out-of-court statement made by one of the coconspirators it had to first find that the
prosecution had proved by a preponderance of the evidence: (1) that some other
evidence, beyond the statement itself, established that a conspiracy existed at the time the
statement was made; (2) the defendants were members of and participating in the
conspiracy at the time the statement was made; (3) the statement was made in order to
further the conspiracy; and (4) the statement was made either before or during the time
that the defendants were participating in the conspiracy. This instruction correctly
described the standard of proof required to permit the jury to consider statements which
otherwise would be inadmissible hearsay.
Defendants’ argument would perhaps have merit if this were the only standard of
proof instruction the jury received, but it was not. The trial court instructed the jury with
50
CALCRIM No. 220, informing it that the prosecution had to prove its case against the
defendants “beyond a reasonable doubt,” and that unless the evidence proved defendants
“guilty beyond a reasonable doubt, they are entitled to an acquittal and [the jury] must
find them not guilty.” In addition, the instructions on each of the substantive offenses
also advised the jury that the prosecution had to prove every element of those offenses
beyond a reasonable doubt.
As to out-of-court statements specifically, the trial court instructed the jury that a
“defendant may not be convicted of any crime based on his out-of-court statements
alone,” and that the jurors “may not convict a defendant unless the People have proved
his guilt beyond a reasonable doubt.” Based on this constellation of instructions, no
reasonable jury would have concluded that the prosecution’s burden of proof on the
substantive offenses was only preponderance of the evidence.
We also look to the arguments of counsel in evaluating a claim that the jury
misapprehended the instructions given. (People v. Young (2005) 34 Cal.4th 1149, 1202.)
Jose’s counsel argued that the jurors must be convinced of the voice identification on the
audio “beyond a reasonable doubt” and encouraged the jurors to “draw your own
conclusions about whether there is sufficient uniqueness to the voices so that you can
conclude beyond a reasonable doubt that it’s the voice of a particular person.” The
defense attorneys, as well as the prosecutor, expressly reminded the jury that it was the
prosecution’s burden to prove defendants’ guilt beyond a reasonable doubt.
G. Instructional error regarding aider and abettor liability
Defendants claim that the trial court violated their right to due process, a fair trial,
and the right to a jury determination beyond a reasonable doubt when it failed to instruct
the jury that liability for a coconspirator’s acts must be limited to acts “in furtherance of”
the conspiracy. We disagree.
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1. Relevant background
The trial court instructed the jury regarding the possession offenses (counts 10, 11,
12, 14, 15, 16, 17 & 28) in relevant part, as follows: “You must first decide whether the
defendant is guilty of conspiracy to traffic cocaine. If you find the defendant is guilty of
this crime, you must then decide whether he is guilty of the possession offenses. [¶]
Under certain circumstances, a person who’s guilty of one crime may also be guilty of
other crimes that were committed at the same time. [¶] To prove the defendant is guilty of
the possession offenses, the People must prove that: [¶] 1. The defendant is guilty of
conspiracy to traffic cocaine; [¶] 2. During the commission of that conspiracy, a
coparticipant in that conspiracy committed the possession offenses; and [¶] 3. Under all
of the circumstances, a reasonable person in defendant’s position would have known that
the commission of the possession offenses was a natural and probable consequence of the
commission of conspiracy to traffic cocaine. [¶] A coparticipant in a crime is the
perpetrator or anyone who aided and abetted the perpetrator. . . . [¶] A natural and
probable consequence is one that a reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a consequence is natural and probable,
consider all of the circumstances established by the evidence. [¶] To decide whether the
possession offenses were committed, please refer to the separate instructions I will give
you on that crime.”
In addition, the court instructed the jury on both general principles of aiding and
abetting (CALCRIM No. 400) and aiding and abetting intended crimes (CALCRIM
No. 401).
2. Applicable legal principles
“A conspirator is vicariously liable for the unintended acts by coconspirators if
such acts are in furtherance of the object of the conspiracy, or are the reasonable and
natural consequence of the object of the conspiracy.” (People v. Hardy (1992) 2 Cal.4th
86, 188.) Like a conspirator, “an aider and abettor . . . is liable for unintended crimes.”
52
(People v. Smith (2014) 60 Cal.4th 603, 615 (Smith).) “An aider and abettor is guilty not
only of the intended, or target, crime but also of any other crime a principal in the target
crime actually commits (the nontarget crime) that is a natural and probable consequence
of the target crime.” (Id. at p. 611.)
3. Analysis
As the California Supreme Court explained in Smith, the difference between aider
and abettor liability and coconspirator liability justifies the omission of an “in furtherance
of” limitation from the former: “An aider and abettor is someone who, with the
necessary mental state, ‘by act or advice aids, promotes, encourages or instigates, the
commission of the crime.’ [Citation.] Because the aider and abettor is furthering the
commission, or at least attempted commission, of an actual crime, it is not necessary to
add a limitation on the aider and abettor’s liability for crimes other principals commit
beyond the requirement that they be a natural and probable, i.e., reasonably foreseeable,
consequence of the crime aided and abetted.” (Smith, supra, 60 Cal.4th at pp. 616-617.)
However, a coconspirator “can be liable for a crime committed by any other conspirator,
and the defendant need not do (or even encourage) anything criminal except agree to
commit a crime.” (Id. at p. 616.) Accordingly, a conspirator is not liable for a
coconspirator’s crime if it is “ ‘ “a fresh and independent product of the mind of one of
the confederates outside of, or foreign to, the common design.” ’ ” (Ibid.)
“[A] natural and probable consequence of a conspiracy need not be an act in
furtherance of the conspiracy; it simply must be a ‘ “reasonably foreseeable consequence
of the [target crime] aided and abetted.” ’ ” (People v. Zielesch (2009) 179 Cal.App.4th
731, 741.) In this case, the “target crime” was conspiracy to traffic cocaine and the trial
court properly instructed the jury that, if it found defendants guilty of the target crime, it
could also find them guilty of the possession offenses so long as it determined that the
possession offenses were a natural and probable consequence of aiding and abetting the
drug-trafficking conspiracy.
53
In any event, even if the trial court’s instruction was erroneous, we find that
defendants cannot show prejudice.
We review claims of inadequate instruction under the Chapman harmless error
standard and must reverse the conviction unless we “determine[] the error was harmless
beyond a reasonable doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 13.) Under
Chapman, “[t]he reviewing court must reverse the conviction unless, after examining the
entire cause, including the evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt.” (Aledamat, supra, at
p. 13.)
Here, the record demonstrates that any instructional error was harmless beyond a
reasonable doubt. All three defendants were present at the stash house during the
takedown and thus were in constructive possession of the drugs, cash, vehicles with
hidden compartments, and other indicia of sales found during the search. According to
Gamboa, Emanuel and Jose had keys to the locked bedroom where much of the
contraband was found, and Guillermo had recently driven a load of drugs to the house
from Los Angeles. During final argument, Emanuel and Guillermo’s counsel essentially
conceded their guilt on the possession offenses.
Furthermore, as a threshold matter, the jury had to conclude that defendants
were involved in the DTO in order to find them guilty of conspiracy to traffic cocaine
(count 1). Gamboa testified that Jose was in charge of the entire operation, Emanuel ran
the stash house, and Guillermo transported large quantities of drugs and the cash to buy
those drugs in vehicles equipped with hidden compartments. “No reasonable jury that
made all of those findings could have failed to find” that defendants also possessed the
cocaine, methamphetamine, and hidden vehicle compartments discovered at the stash
house. (People v. Merritt (2017) 2 Cal.5th 819, 832.)
54
H. Instructional error regarding weight enhancement
Guillermo, joined by Emanuel, argues the weight enhancement attached to their
conviction for possessing cocaine for sale (count 10) must be reversed because the trial
court failed to instruct the jury that it was required to find each of them was “substantially
involved” in the offense. Their claim fails.
1. Relevant background
Pursuant to CALCRIM No. 3200, the trial court instructed the jury that to convict
defendants of the conspiracy to traffic cocaine charged in count 1, it must find that
defendants “possessed more than 80 kilograms of cocaine by weight” and were
“substantially involved in the planning, direction, execution, or financing of the
conspiracy to traffic the cocaine.” With respect to the cocaine possession charge
(count 10), however, the court gave the following challenged instruction: “If you find the
defendant guilty of the crime charged in Count 10, possession of cocaine for sale, you
must then decide whether, for each crime, the People have proved the additional
allegation that the crime involved more than a specified amount or more [sic] of a
controlled substance. You must decide whether the People have proved this allegation
for each crime and return a separate finding for each crime. [¶] To prove this allegation,
the People must prove that: [¶] 1. The defendant possessed more than 80 kilograms of
cocaine by weight.”
The jury convicted Guillermo and Emanuel of the conspiracy charged in count 1,
but expressly found that neither was “substantially involved” in the conspiracy. The jury
also convicted them of possessing cocaine for sale and found true the attached weight
enhancement, but the jury was not instructed to also find that the defendants were
substantially involved.
2. Applicable legal principles
At the time of the charged offenses, Health and Safety Code section 11370.4
provided: “(a) Any person convicted of a violation of, or of a conspiracy to violate,
55
Section 11351, 11351.5, or 11352 . . . shall receive an additional term as follows: [¶] . . .
[¶] (6) Where the substance exceeds 80 kilograms by weight, the person shall receive an
additional term of 25 years. [¶] The conspiracy enhancements provided for in this
subdivision shall not be imposed unless the trier of fact finds that the defendant
conspirator was substantially involved in the planning, direction, execution, or financing
of the underlying offense.”
Health and Safety Code section 11370.4 does not require substantial involvement
where a defendant is convicted not of a conspiracy, but of another substantive offense
based on a theory of conspiracy liability. The only reference to any “conspiracy
enhancement” in subdivision (a) of that statute is the reference to “[a]ny person convicted
of . . . a conspiracy to violate” one of the enumerated sections. (Health & Saf. Code,
§ 11370.4, subd. (a).) “The doctrine of conspiracy plays a dual role in our criminal law.
First, conspiracy is a substantive offense in itself. . . . Second, proof of a conspiracy
serves to impose criminal liability on all conspirators for crimes committed in furtherance
of the conspiracy.” (People v. Salcedo (1994) 30 Cal.App.4th 209, 215 (Salcedo).)
“[T]he only conspiracy enhancement identified in [Health and Safety Code section
11370.4] is one that applies to the substantive offense of conspiracy.” (Id. at p. 216.)
“It is apparent [Health and Safety Code] section 11370.4 does not require
substantial involvement where a defendant is convicted of a substantive offense upon a
theory of joint conspirator liability.” (Salcedo, supra, 30 Cal.App.4th at p. 216.)
“[B]efore 1989, the weight enhancements provided for in [Health and Safety Code
section] 11370.4 did not apply to a defendant convicted of conspiracy to commit a drug
offense. [Citation.] This oversight was remedied by enactment of Assembly Bill
No. 2448 in 1989 which added ‘Any person convicted of . . . a conspiracy to violate . . .’
in subdivision (b) of the statute. [Citations.] The amendment also added the ‘substantial
involvement’ language discussed above.” (Ibid.) The Senate Judiciary report on
Assembly Bill No. 2448 described the purpose of the bill as follows: “ ‘This bill would
56
apply the above [weight] enhancements where a defendant is convicted of conspiracy to
commit the above offenses. However, the conspiracy enhancements apply only where the
defendant was substantially involved in the planning, direction, execution, or financing of
the underlying offense. [¶] The purpose of this bill is to extend sentence enhancements to
large narcotic traffickers who do not personally handle the narcotics but who are often
prosecuted for conspiracy.’ ” (Salcedo, at p. 217.) Thus, as Salcedo concluded, the
legislative history of the statute supports the conclusion that substantial involvement is
required only where the weight enhancement is attached to a conspiracy conviction.
3. Analysis
The trial court instructed on several theories of liability with respect to count 10,
including aiding and abetting, the natural and probable consequences doctrine, and joint
and constructive possession. Defendants argue that, because they could have been
convicted of those crimes on a theory of vicarious liability as coconspirators, the jury was
required to expressly find that they were substantially involved in the conspiracy.
However, as explained in Salcedo, the weight-enhancement statute, Health and Safety
Code section 11370.4, does not require substantial involvement where a defendant is
convicted not of a conspiracy, but of another substantive offense based on a theory of
conspiracy liability. Accordingly, the trial court properly instructed the jury regarding
the weight enhancement attached to count 10.
I. Trial court responses to jury questions regarding possession
Defendants’ final substantive argument is that the trial court erroneously removed
a factual issue from the jury’s consideration by its answers to two jury questions posed
during deliberations regarding the meaning of the term possession. Again, we disagree.
1. Relevant background
On August 14, 2017, the jury sent a note to the trial court asking, “In order to
possess something, do you have to know its exact location?” Without objection, the court
responded as follows: “A: No, a person does not have to know the exact location of
57
something to possess it. [¶] Actual or constructive possession is the right to exercise
dominion and control over the contraband or the right to exercise dominion and control
over the place where it is found. [¶] Actual possession means the object is knowingly in
the defendant’s immediate possession or control. A defendant has actual possession
when he himself has the object. [¶] Constructive possession means the object is not in the
defendant’s physical possession, but the defendant knowingly exercises control or the
right to control the object. A person has constructive possession when the contraband,
while not in his actual possession, is nonetheless under his dominion and control, either
directly or through others. [¶] Exclusive possession is not necessary. A person has
constructive possession if his knowing exercise of dominion and control over the place
where the contraband is located is shared with others.”
Two days later, on August 16, 2017, the jury submitted another question about
possession: “This is a question w.r.t.[16] possession. If a person has a control [sic] over a
place and a prohibited item is found in this place, can this person be held liable for
possession of this item even if this person does not know that this item existed? In other
words, can this person possess something without knowing that it exists (knowing that he
has it) as long as it is found in the area he controls[?]” With the parties’ concurrence, the
court responded: “No, a person cannot be found guilty of possession if that person does
not know the item exists. Knowledge of the presence of the item is a required element
(See Element #2 in instruction 2302), although, as explained in Answer to Jury Question
#2, knowledge of the exact location is not required.”
2. Applicable legal principles
On appeal, the court “review[s] de novo the legal accuracy of any supplemental
instructions provided” by the trial court. (People v. Franklin (2018) 21 Cal.App.5th 881,
887.) “When an appellate court addresses a claim of jury misinstruction, it must assess
16
We presume “w.r.t.” is an abbreviation for “with regard to.”
58
the instructions as a whole, viewing the challenged instruction in context with other
instructions, in order to determine if there was a reasonable likelihood the jury applied
the challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44
Cal.4th 758, 803 (Wilson).) “We of course presume ‘that jurors understand and follow
the court’s instructions.’ ” (Ibid.)
3. Analysis
Constructive possession “is established by showing that defendant maintained
some control or right to control over contraband in the physical possession of another.”
(People v. Rogers (1971) 5 Cal.3d 129, 134.)
Defendants contend that the trial court’s responses to the jury’s questions,
particularly the response to Jury Question #2 about “possession,” “included an overbroad
definition” of the concept of constructive possession. As the Attorney General points
out, the court’s answer to that question is almost identical to the Court of Appeal’s
description of possession set forth in People v. Rushing (1989) 209 Cal.App.3d 618:
“Actual or constructive possession is the right to exercise dominion and control over the
contraband or the right to exercise dominion and control over the place where it is found.
[Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction
if his right to exercise dominion and control over the place where the contraband was
located is shared with others.” (Id. at p. 622.) “Constructive possession occurs when the
accused maintains control or a right to control the contraband; possession may be
imputed when the contraband is found in a place which is immediately and exclusively
accessible to the accused and subject to his dominion and control, or to the joint
dominion and control of the accused and another.” (People v. Williams (1971) 5 Cal.3d
211, 215.)
The court’s responses to the questions about possession properly instructed the
jury that defendants had to: (1) know the contraband existed; and (2) either maintain
control or a right to control the contraband, or have dominion or control (sole or joint)
59
over the place where the contraband is found. We are not persuaded by defendants’
argument that the court’s definition would result in convictions of persons who knew of
contraband and had control over the place it was located, but had no control over the
contraband itself. The trial court here expressly informed the jury that the defendant
must have “dominion and control” over the contraband.
Viewing the instructions as a whole, the trial court’s responses to the jury’s
questions did not lessen the prosecution’s burden of proof. (Wilson, supra, 44 Cal.4th at
p. 803.) The trial court correctly instructed the jury that a person possesses something “if
the person has control over it or the right to control it, either personally or through
another person.” It also instructed the jury on the knowledge element of the possession
offenses. It is not reasonable to presume that the jury misunderstood these instructions
and applied them improperly.
Finally, there was overwhelming evidence supporting the possession convictions.
Jose and Emanuel were living at the stash house when the takedown occurred. The
defendants were taken into custody at the residence and, according to Gamboa, Emanuel
managed the stash house for the DTO while Jose was in charge of the entire operation. It
was therefore reasonable for the jury to infer that Jose had control over all the DTO’s
contraband and that Emanuel had at least constructive control over it due to his job as
house manager. Guillermo was directly involved in driving vehicles filled with drugs and
cash to and from the stash house, and thus also was reasonably found to be in
constructive possession of the contraband.
J. Cumulative error
Defendants argue that their convictions must be reversed due to cumulative
prejudice, but there are no errors to cumulate. Since we have not found error, defendants’
cumulative error argument fails. (In re Reno (2012) 55 Cal.4th 428, 483; Sedillo, supra,
235 Cal.App.4th at p. 1068.) To the extent we have assumed error for purposes of
analysis, none of these errors increases the impact of any other and their cumulative
60
impact did not deprive defendants of a fair trial or the right to due process. (See People
v. Thomas (2011) 51 Cal.4th 449, 508.)
K. Senate Bill No. 567
1. Relevant background
In this case, the trial court sentenced Emanuel and Guillermo to the upper term
of four years for possession of cocaine plus a 25-year weight enhancement (Health &
Saf. Code, §§ 11351, 11370.4, subd. (a); count 10), and imposed and stayed a middle
term sentence of four years for conspiracy to transport cocaine conviction. (§ 182,
subd. (a)(1); Health & Saf. Code, § 11352; count 1.) Emanuel was also sentenced to
concurrent two-year middle term sentences for possession of methamphetamine (Health
& Saf. Code, § 11378; count 11), and possession of false compartments (Health & Saf.
Code, § 11366.8, subd. (a); counts 16 & 17).
At sentencing, the trial court explained its rationale as follows: “I am going to
impose the sentences recommended by Probation based on the fact that this is a
multimillion dollar, hundreds of pounds of cocaine, drug trafficking organization. And as
the district attorney pointed out in his moving papers, the average dose of cocaine for use
is 1/10 of a gram, and what was recovered here, 85 kilograms, makes 850,000 doses of
cocaine into our community. And that is why I’m sentencing them. [¶] It is [section]
1170(h) and . . . the change in the law that seems to be growing more lenient on drug
users has no role for major, major drug dealers, which is what we have here.”
2. Amendments to section 1170
At the time Emanuel and Guillermo were sentenced, former section 1170 provided
that when a judgment of imprisonment is to be imposed and a statute specifies three
possible terms, “the choice of the appropriate term shall rest within the sound discretion
of the court.” (Former § 1170, subd. (b).) Senate Bill No. 567 amended section 1170,
effective January 1, 2022. (Stats. 2021, ch. 731, § 1.3.) Under the newly-amended
version of section 1170, when a judgment of imprisonment is to be imposed and a statute
61
specifies three possible terms, “the court shall, in its sound discretion, order imposition of
a sentence not to exceed the middle term, except as otherwise provided in [section 1170,
subdivision (b)(2)].” (§ 1170, subd. (b)(1).) Section 1170, subdivision (b)(2) provides
that the trial court may impose a sentence exceeding the middle term “only when there
are circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial.”
Senate Bill No. 567 also added subdivision (b)(6) to section 1170, which now
provides the following: “Notwithstanding [section 1170, subdivision (b)(1)], and unless
the court finds that the aggravating circumstances outweigh the mitigating circumstances
that imposition of the lower term would be contrary to the interests of justice, the court
shall order imposition of the lower term if any of the following was a contributing factor
in the commission of the offense: [¶] (A) The person has experienced psychological,
physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence. [¶] (B) The person is a youth, or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of the offense. [¶]
(C) Prior to the instant offense, or at the time of the commission of the offense, the
person is or was a victim of intimate partner violence or human trafficking.” (Stats.
2021, ch. 731, § 1.3.) Section 1016.7, subdivision (b) defines a “youth” as “any person
under 26 years of age on the date the offense was committed.”17
17
The indictment in this case alleged that the crimes committed by Emanuel and
Guillermo occurred between August 2008 and mid-March 2009. Emanuel was born on
September 1, 1989, and was 18 or 19 years old on the dates of the offenses. Guillermo
was born on December 2, 1982, and was thus “under 26 years of age” (§ 1016.7,
subd. (b)) during the first few months of the conspiracy, i.e., from August 1, 2008, to
December 2, 2008.
62
In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the California Supreme Court
held that, where an “amendatory statute lessening punishment becomes effective prior to
the date the judgment of conviction becomes final,” and there is no clear expression of
legislative intent to the contrary, the amended statute will apply. (Id. at p. 744.)
As this case is not yet final, Emanuel and Guillermo are entitled to the retroactive
application of section 1170, subdivision (b) as amended by Senate Bill No. 567 because
the amendments are ameliorative and nothing in Senate Bill No. 567 indicates that the
Legislature intended those amendments to apply solely prospectively. (See People v.
Flores (2022) 73 Cal.App.5th 1032, 1039; see also People v. Frahs (2020) 9 Cal.5th 618,
627-630.) Accordingly, we will reverse the judgments against Emanuel and Guillermo
and remand the matter for resentencing under section 1170, as amended by Senate Bill
No. 567.
The Attorney General argues that, on remand, the district attorney should be given
the opportunity to either prove the existence of aggravating circumstances before a jury
in compliance with section 1170, subdivision (b)(2) or submit to resentencing based on
the state of the current record. The Attorney General claims that such an election is
proper because the district attorney was not obligated to comply with the amended
version of section 1170, subdivision (b)(2) at the time of defendants’ trial or at
sentencing, and such an election would not violate either the double jeopardy clause or
constitute an ex post facto violation.
We agree with the Attorney General. Even if we assume that the double jeopardy
clause applies to sentencing factors, Emanuel and Guillermo have never been tried on any
of the aggravating circumstances, rendering this constitutional provision inapplicable.
(See People v. Monge (1997) 16 Cal.4th 826, 832 [double jeopardy clause “ ‘protects
against a second prosecution for the same offense after acquittal’ ”].) Moreover,
section 1170, subdivision (b)(2) does not increase the punishment for an offense because
the same statutorily-prescribed sentencing range remains intact. (See Collins v.
63
Youngblood (1990) 497 U.S. 37, 46 [ex post facto law is one that imposes an additional
punishment to what was originally prescribed].) Thus, on remand, the district attorney
should be given the opportunity to prove the existence of aggravating circumstances in
compliance with the amended statute.
L. Criminal laboratory analysis and drug program fees
Defendants18 claim the trial court miscalculated the criminal laboratory analysis
fee (Health & Saf. Code, § 11372.5) and the drug program fee (id., § 11372.7) as well as
the corresponding penalty assessments. The Attorney General concedes the argument,
and further points out that the trial court erred by failing to stay certain fees pursuant to
section 654. We agree the concession is well taken.
1. Relevant background
At sentencing, the trial court imposed on Jose: (1) a $200 criminal laboratory
analysis fee, with $560 in penalty assessments; and (2) a $600 drug program fee, with
$1,680 in penalty assessments. Emanuel and Guillermo were each ordered to pay:
(1) $350 criminal laboratory fees, plus $980 in penalty assessments; and (2) $1,050 drug
program fees, plus $2,940 in penalty assessments.
2. Laboratory analysis fee
Pursuant to Health and Safety Code section 11372.5, subdivision (a), “[e]very
person who is convicted of a [qualifying section of the Health and Safety Code] . . . shall
pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each
separate offense.” The fee must also be imposed on convictions for conspiracy to
commit one of the specified offenses. (People v. Ruiz (2018) 4 Cal.5th 1100, 1119.)
18
Although we are reversing the judgments against Emanuel and Guillermo, we
include our analysis of the fines and fees imposed on them for the trial court’s guidance
at their resentencing hearings.
64
Since this fee constitutes punishment, it “must be stayed under section 654” where
appropriate. (People v. Sharret (2011) 191 Cal.App.4th 859, 869 (Sharret).)
The crime lab fee is subject to seven mandatory penalty assessments. (Sharret,
supra, 191 Cal.App.4th at pp. 862-864.) At the time of defendants’ offenses in 2008 and
2009, those assessments were (1) a 100 percent state penalty assessment (§ 1464,
subd. (a)); (2) a 20 percent state surcharge (§ 1465.7); (3) a 35 percent state court
construction penalty (Gov. Code, §§ 70372, subd. (a), 70375, subd. (b)); (4) a 55 percent
additional penalty (Gov. Code, § 76000, subds. (a), (e)); (5) a 20 percent emergency
medical services penalty (Gov. Code, § 76000.5); (6) a 10 percent penalty for
implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act
(Gov. Code, § 76104.6, subd. (a)(1)); and (7) a 40 percent state-only DNA penalty (Gov.
Code, § 76104.7). (See People v. Hamed (2013) 221 Cal.App.4th 928, 940-941.)
In this case, Jose was convicted of four qualifying offenses: (1) two counts of
conspiracy to traffic cocaine (§ 182, Health & Saf. Code, § 11352; counts 1, 8);
(2) possession of cocaine for sale (Health & Saf. Code, § 11351; count 10); and
(3) possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 11).
The trial court correctly calculated Jose’s criminal laboratory analysis fee at $200 ($50
multiplied by four counts) with $560 in penalty assessments.19 However, because the
court stayed punishment for Jose’s conviction on count 1 under section 654, it should
19
At the time the offenses were committed in 2008 and 2009, the appropriate
multiplier for penalty assessments on crime lab fees was 280 percent, consisting of:
(1) a 100 percent state penalty assessment (§ 1464, subd. (a)); (2) a 20 percent state
surcharge (§ 1465.7); (3) a 35 percent state court construction penalty (former Gov.
Code, §§ 70372, subd. (a), 70375, subd. (b)); (4) a 55 percent additional penalty (Gov.
Code, § 76000, subds. (a), (e)); (5) a 20 percent emergency medical services penalty
(Gov. Code, § 76000.5); (6) a 10 percent penalty for implementation of the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act (Gov. Code, § 76104.6,
subd. (a)(1)); and (7) a 40 percent state-only DNA penalty (Gov. Code, § 76104.7).
65
have also stayed the $50 crime lab fee and $140 of the penalty assessment associated
with that count. (Sharret, supra, 191 Cal.App.4th at pp. 869-870.)
Emanuel and Guillermo were convicted of three qualifying offenses:
(1) conspiracy to traffic cocaine (§ 182, Health & Saf. Code, § 11352; count 1);
(2) possession of cocaine for sale (Health & Saf. Code, § 11351; count 10); and
(3) possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 11).
The trial court imposed $350 criminal laboratory analysis fees on Emanuel and
Guillermo, rather than $150 ($50 per each of three counts) as it should have.20 The
associated total penalty assessments must also be reduced to $420 (280 percent of $150).
As with Jose, the trial court stayed punishment on count 1 for both Emanuel and
Guillermo pursuant to section 654. As a result, it should have also stayed $50 in criminal
laboratory analysis fees and $140 in penalty assessments imposed in connection with that
count.
3. Drug program fee
Health and Safety Code section 11372.7, subdivision (a), states: “Except as
otherwise provided . . . each person who is convicted of a violation of this chapter shall
pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for
each separate offense.” Like the crime lab fee, the drug program fee is punitive and is
therefore subject to both section 654 and the same penalty assessments. (Sharret, supra,
191 Cal.App.4th at pp. 869-870; People v. Sierra (1995) 37 Cal.App.4th 1690,
1695-1696.)
20
It appears the trial court relied on the figures set forth in the probation reports.
Because Emanuel and Guillermo were each found guilty of seven separate violations of
the Health and Safety Code, we surmise that the probation department believed that each
of those seven violations was a qualifying conviction under Health and Safety Code
section 11372.5 and multiplied $50 by seven, rather than three.
66
Jose was convicted of eight qualifying offenses: conspiracy to traffic cocaine
(§ 182, subd. (a)(1), Health & Saf. Code, § 11352; counts 1, 8); possession of cocaine for
sale (Health & Saf. Code, § 11351; count 10); possession of methamphetamine for sale
(Health & Saf. Code, § 11378; count 11); possessing more than $100,000 for the
purchase of drugs (Health & Saf. Code, § 11370.6; count 14); and possession of a false
compartment (Health & Saf. Code, § 11366.8, subd. (a); counts 15, 16, 17).
At sentencing, the trial court imposed a total drug program fee of $600, or $75 per
qualifying conviction. The court did not explain why it decided to impose a fee less than
the statutory maximum of $150 per conviction but the Attorney General rightly notes that
the trial court acted within its discretion in doing so. (See Health & Saf. Code,
§ 11372.7, subd. (a) [drug lab fee “not to exceed” maximum of $150].) Having stayed
punishment on count 1 under section 654, the court should also have stayed the $75 drug
program fee imposed on that count as well as the corresponding $210 in penalty
assessments.
Guillermo and Emanuel were each convicted of seven offenses subject to the drug
program fee: conspiracy to traffic cocaine (§ 182, subd. (a)(1), Health & Saf. Code,
§ 11352; count 1); possession of cocaine for sale (Health & Saf. Code, § 11351;
count 10); possession of methamphetamine for sale (Health & Saf. Code, § 11378;
count 11); possessing more than $100,000 for the purchase of drugs (Health & Saf. Code,
§ 11370.6; count 14); and possession of a false compartment (Health & Saf. Code,
§ 11366.8, subd. (a); counts 15, 16, 17). While the trial court imposed the maximum
drug program fee of $150 per conviction ($1,050 in total), it should have stayed the $150
fee and $420 in penalty assessments imposed on count 1.
M. Impact of Government Code section 6111
As of July 1, 2021, the statutory provisions pursuant to which the court ordered
defendants to pay a $259.50 criminal justice administration fee were repealed, and
newly-enacted Government Code section 6111 became effective. Government Code
67
section 6111 provides: “(a) On and after July 1, 2021, the unpaid balance of any
court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550,
and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is
unenforceable and uncollectible and any portion of a judgment imposing those costs shall
be vacated. [¶] (b) This section shall become operative on July 1, 2021.”
Because this change in the law became effective after the parties had submitted
their briefs in this matter, we requested that the parties provide supplemental briefing on
the question of the effect of the repeal of former Government Code section 29550 et seq.
and the enactment of Government Code section 6111 on this pending appeal.
In response to our request for supplemental briefing, defendants argue that they
are entitled to having that portion of the judgment imposing the criminal justice
administration fees vacated pursuant to Estrada, supra, 63 Cal.2d 740. The Attorney
General agrees that the any unpaid portion of the criminal justice administration fees is
uncollectible and must be vacated.
Pursuant to the plain language of Government Code section 6111, the unpaid
balance of the criminal justice administration fees is unenforceable and uncollectible, and
the portion of the judgments imposing such costs must be vacated. Accordingly, we will
exercise our authority to modify Jose’s judgment21 as mandated by the new law.
N. Impact of section 1465.9
Emanuel’s supplemental brief also notes that section 1203.1b, which authorized
the imposition of a presentencing report fee and a monthly probation supervision fee, has
also been repealed effective July 1, 2021. Section 1465.9, which became operative on
July 1, 2021, provides in pertinent part, as follows: “(a) The balance of any
court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5,
21
As we are reversing the judgments against Emanuel and Guillermo for
resentencing, modifying those judgments would be an idle act.
68
Section[] . . . 1203.1b, . . . as those sections read on June 30, 2021, shall be unenforceable
and uncollectible and any portion of a judgment imposing those costs shall be vacated.
[¶] (b) On and after January 1, 2022 the balance of any court-imposed costs pursuant to
Section 1001.15, 1001.16, 1001.90, 1202.4, 1203.1, 1203.1ab, 1203.1c, 1203.1m,
1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or 2085.7, as those sections read on
December 31, 2021, shall be unenforceable and uncollectible and any portion of a
judgment imposing those costs shall be vacated.” (§ 1465.9; Assem. Bill No. 1869
(2019-2020 Reg. Sess.) § 62, amended Stats. 2021, ch. 257 § 35 (AB 177), effective
Sep. 23, 2021.)
At Emanuel and Guillermo’s sentencing hearing, the trial court imposed a $450
presentencing report fee (§ 1203.1b, subd. (a)) and a $110 per month probation
supervision fee (§ 1203.1b, subd. (a)). Section 1465.9 provides that the unpaid balance
of those fee orders is “unenforceable and uncollectible” and the portion of the judgment
imposing those fees must be vacated. Since we are reversing the judgments against
Emanuel and Guillermo and remanding for resentencing, this issue is now moot.
III. DISPOSITION
Defendant Jose Vargas-Alvarez’s judgment is modified as follows: (1) $50 of the
$200 criminal laboratory analysis fee, along with $140 of the $560 in associated penalty
assessments, are stayed pursuant to Penal Code section 654; (2) $75 of the $600 drug
program fee, along with $210 of the $1,680 in associated penalty assessments, are stayed
pursuant to Penal Code section 654; and (3) any portion of the $259.50 criminal justice
administration fee imposed by the court pursuant to Government Code section 29550.1
that remains unpaid as of July 1, 2021, is vacated. As modified, defendant Jose
Vargas-Alvarez’s judgment of conviction is affirmed. The trial court is directed to
correct the minute orders and abstract of judgment to reflect the modifications set forth
above and forward a copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation.
69
The judgments as to defendants Emanuel Vargas-Alvarez and Guillermo
Velasquez are reversed and the matters are remanded for resentencing under Penal Code
section 1170 as amended by Senate Bill No. 567. On remand, the trial court may
reconsider all of its sentencing decisions, and the district attorney may elect to prove
circumstances in aggravation permitting the imposition of upper terms as required under
Penal Code section 1170, subdivision (b)(2) or to submit to resentencing on the current
record.
70
_______________________________
Greenwood, P. J.
I CONCUR:
________________________________
Elia, J.
People v. Vargas-Alvarez
H045450
Grover, J., Concurring and Dissenting
I agree with the majority opinion in all respects except for its analysis (in
section II.B.3.) of the motion to suppress evidence obtained through a GPS tracking
device installed by DEA agents on an RV parked in the driveway of a home in Gilroy.
As I will explain, I believe the warrantless placement of tracking devices on the RV
violated the Fourth Amendment and necessitates reversal of the conviction in count 8 for
conspiracy to traffic cocaine. I respectfully dissent as to that issue.
Placing a GPS transmitter on a vehicle and using it to monitor the vehicle’s
movements is a search for Fourth Amendment purposes. (United States v. Jones (2012)
565 U.S. 400, 404.) Here the agents did not obtain a warrant to place a GPS device on
the RV. Because the Fourth Amendment prohibits warrantless searches of places where
someone has a reasonable expectation of privacy (Coolidge v. New Hampshire (1971)
403 U.S. 443, 454), the controlling question is whether the RV was in such a place. In
my view, the prosecution did not meet its burden to prove there was no reasonable
expectation of privacy in the home driveway where the RV was parked and the GPS
devices affixed on successive nights. (People v. Williams (1999) 20 Cal.4th 119, 127
[prosecution has the burden of proving a warrantless search was constitutionally
reasonable].)
It is well settled there is a reasonable expectation of privacy in the area
“immediately surrounding a dwelling house,” often referred to as the curtilage. (United
States v. Dunn (1987) 480 U.S. 294, 300 (Dunn).) As the majority notes, to determine
whether a location falls within the curtilage, a court may consider several factors,
including “the proximity of the area claimed to be curtilage to the home, whether the area
is included within an enclosure surrounding the home, the nature of the uses to which the
area is put, and the steps taken by the resident to protect the area from observation by
people passing by.” (Id. at p. 301.) The inquiry is ultimately whether “the area in
question is so intimately tied to the home itself that it should be placed under the home’s
‘umbrella’ of Fourth Amendment protection.” (Ibid.)
Applying the Dunn factors, I conclude the RV was within the curtilage of the
Gilroy residence. Regarding the first (and arguably most important) factor—proximity—
the RV was on the driveway with its front approximately seven feet from the residence
and its rear approximately 30 feet from the garage. Depending on whether the tracking
devices were placed closer to the rear or the front of the 39-foot long vehicle (something
not precisely disclosed in the record) the agents were anywhere between 46 and seven
feet from the residence when they crawled underneath the RV. Located at the end of a
long driveway extending 136 feet from the public roadway, the area is closer to the home
than to any publicly accessible place. Applying Dunn to these facts, I consider the
location where the agents placed the GPS devices to be close to the residence.
I acknowledge that the second factor—whether the area is within an enclosure
surrounding the home—weighs in favor of legality, but only slightly. There was a fence
along the front of the property, but it did not extend around the entire parcel.
Nonetheless, the presence of some fencing increases the expectation of privacy by
conveying a private boundary, although not to the same degree as completely enclosing
the area.
The third consideration is the nature of the area’s use, and whether it has been
incorporated closely into the “ ‘ “activity of home life.” ’ ” (Collins v. Virginia (2018)
138 S.Ct. 1663, 1671.) The record contains little information on this point, but what is
there indicates the area was associated with home life activity. Parking a vehicle on a
driveway leading to an associated garage is consistent with typical home use.
The final consideration is whether any steps were taken to protect the area from
outside observation. An approximately five-foot tall wrought iron fence runs for 223 feet
across the front of the residence. Although a wrought iron fence would not block view of
the driveway from the outside, it signals to the public that the area is not accessible.
2
More significant is that the area in question is remote enough (at the end of a 136-foot
driveway) to prevent it from being closely observed by passersby. The area at the end of
a long driveway on this relatively rural property is fundamentally different from the
driveway of a residence in a more urban setting abutting a public sidewalk. (Compare
People v. Zichwic (2001) 94 Cal.App.4th 944, 953 [driveway of apartment building not
within curtilage because it was next to the sidewalk; its accessibility and visibility ruled
out any reasonable expectation of privacy].) The driveway of the detached residence here
was sufficiently inaccessible to create an expectation of privacy.
On balance, I believe the Dunn factors weigh in favor of finding that the RV was
parked within the curtilage and therefore entitled to the umbrella of privacy protection
afforded to the home. The prosecution did not negate a reasonable expectation of privacy
in the area, as would be required to justify this warrantless search. Placing the GPS
devices on the RV without a warrant therefore violated the Fourth Amendment, and the
trial court should have granted the motion to suppress evidence obtained through them.
An error in denying a motion to suppress will not result in reversal when it is
beyond reasonable doubt the appellant would not have seen a more favorable outcome
had the evidence been suppressed. (People v. Camel (2017) 8 Cal.App.5th 989, 998.)
The effect of the error turns on the evidence obtained and whether it would have been
discovered by other means. The tracking device on the RV driven by Jose Melendez-
Ramirez directly affects the conviction in count 8 because it appears the contraband
would not have been discovered were it not for DEA agents’ use of the device.
According to the testimony of DEA agents at the suppression hearing, a few days
after it was installed, the GPS device signaled that the RV was in motion, and agents used
the GPS signal to track the RV to a gas station where they observed the activities of Jose
Vargas-Alvarez and Jose Melendez-Ramirez. At that time they added a profile for
Melendez-Ramirez to the DEA’s El Paso Information Center (EPIC) database, noting
“Jose Melendez-Ramirez is suspected to be interstate driver for Jose Vargas-Alvarez.”
3
According to the testimony of Nebraska sheriff’s deputies at the hearing, it was the EPIC
database entry that led them to detain Melendez-Ramirez after a traffic stop and
ultimately discover 100 kilograms of cocaine hidden in the RV he was driving.
Although other surveillance of Jose Vargas-Alvarez and Jose Melendez-Ramirez
was occurring at the time the GPS devices were installed, it is not clear from the record
that a database profile would have been created for Melendez-Ramirez had agents not
observed his conduct at the gas station. And but for the GPS alert and tracking, that
observation would not have occurred. It would be speculative to conclude that an EPIC
profile would have been created for Melendez-Ramirez independent of the gas station
observation and before the Nebraska traffic stop one month later.
On this record, I believe the DEA should have obtained a warrant allowing GPS
devices to be placed on the RV, and I see no rationale for not doing so. I would therefore
reverse Jose Vargas-Alvarez’s conviction on count 8 and allow the prosecution to either
retry or dismiss that count.
4
______________________________________
Grover, J.
H045450 -People v. Vargas-Alvarez et al.