Filed 12/31/19 P. v. Lundquist CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Plaintiff and Respondent,

v.

DAVID JAMES LUNDQUIST,

Defendant and Appellant.

H046277

(Santa Clara County

Super. Ct. No. C1886475)
After a jury trial, defendant David James Lundquist was convicted of possession of methamphetamine for sale, in violation of Health and Safety Code section 11378. On ppeal, he contends that the trial court engaged in judicial misconduct by denigrating the defense expert in front of the jury. We will affirm the judgment.

Background

At approximately 1:50 a.m. on March 12, 2018, police officer Gerald Cuyle was on patrol in a marked vehicle near downtown San Jose when he saw two people standing close to each other under an overpass. One, later identified as defendant, was straddling his bicycle without headlights. Suspecting narcotics activity based on his training and experience, Officer Cuyle approached the two individuals and activated his red light to detain them. The pedestrian walked away; and when Officer Cuyle approached on foot, defendant rode away from him on his bicycle. A pursuit ensued, during which other officers in the area were alerted. One reached defendant and restrained him in handcuffs. Upon searching defendant incident to arrest for resisting a police officer, Officer Cuyle found a black leather zippered pouch in defendant’s pocket. The pouch contained a plastic baggie, inside of which was a substance the officer recognized as crystal methamphetamine. In defendant’s backpack were three additional baggies containing what appeared to be the same substance, as well as a glass narcotics pipe like those commonly used to smoke methamphetamine. Officer Cuyle also searched defendant’s wallet, which contained $84 in denominations of $20 or less. When examined, defendant did not show any signs of being under the influence of methamphetamine. The methamphetamine in one baggie was later tested at the crime lab and found to weigh 12.34 grams; the others contained “very little powder” and were not tested.

Defendant was charged by amended information with possession of a controlled substance for sale. The primary issue at trial was whether he intended to sell the methamphetamine. Two expert witnesses testified on this point. Trevor Hendrickson, a police officer in San Jose’s Downtown Services Unit, was an expert in the area of possession for sale of methamphetamine, including identification and determination of a usable amount. The area where defendant was arrested was known for narcotics activity.

Officer Hendrickson explained that currently it was common for a methamphetamine dealer downtown not to carry a cutting agent, a scale, or other indicia of sales. Instead, dealers in that area would typically break pieces off the rocks and sell those pieces after estimating the weight, which was faster than weighing them and easier to grab from a pocket. He further explained that one gram would commonly cost a downtown buyer $20; in a rapid transaction half a gram might be sold for $10, a quarter gram for $5. So 12.34 grams of methamphetamine could generate “close to about $240.” Having spoken with hundreds of methamphetamine users, Hendrickson estimated that an average user would ingest “maybe half [a] gram, maybe a gram” a day, and most could not afford to carry more than one to two grams at any time. He could think of no user he had spoken with in that area who “stocked up”; most of them were homeless and could not afford to “buy in bulk,” or they did not want to be caught with an amount that would subject them to being charged with sales, or they were concerned about their drugs being stolen from them.

Officer Hendrickson expressed the opinion that in hypothetical circumstances reflecting those underlying defendant’s arrest, 12.34 grams was an amount possessed for sale. He had never considered such a quantity of methamphetamine to be for personal use in the downtown area of San Jose. Carrying a pipe did not contraindicate an intent to sell, because some dealers allow purchasers to use the pipe with the methamphetamine in it or sell the preloaded pipe. The homeless people found in that area did not typically run from police when approached because they did not usually carry more cash or methamphetamine than an amount that would constitute a misdemeanor. Dealers, on the other hand, were more likely to run.

Sheigla Murphy, Ph.D., a research medical sociologist, testified for the defense as an expert on “the possession for sale versus personal use of methamphetamine.” In her research she designed interview-based studies focused on drug use, drug sales, and substance abuse. Between 400 and 500 of the two-to-four-hour “life history interviews” she or her staff had conducted were with methamphetamine users; 80 to 100 were methamphetamine sellers. Most study participants were from either San Francisco or the East Bay, while “maybe ten” lived in San Jose. In forming her expert opinion Dr. Murphy had been given the facts from the police report, which defense counsel had summarized for her.

Dr. Murphy’s testimony conflicted with Officer Hendrickson’s in notable respects. She was unaware of any scientific research supporting Hendrickson’s suggestion that a typical use was 100th of a gram. She suggested that a quarter of a gram would be about the smallest dose a regular user would ingest. Someone with a high tolerance might use up to a gram, depending on the method of ingestion; a heavy user who smoked methamphetamine might have 3.5 grams a day. The most she had ever heard of a person using was five grams in a day. That interview took place in about 2010; she conceded that the potency of methamphetamine had increased significantly since then, but she adhered to her estimate of the amount ingested by heavy users based on information she had received.

Dr. Murphy further disagreed with Officer Hendrickson’s statement that users typically did not have more than one gram on them at a time; on the contrary, they tried to buy as much as they could at once because the “unit price” would be lower. The same would be true of users who were homeless; methamphetamine is so compelling that when they have money, buying the drug is a priority. She also discussed the challenges for a homeless seller of keeping his methamphetamine in a secure place, selling at a location where customers know they can find him, and ensuring an accurate amount for each sale. Consequently, a seller would have a scale and deal in prepackaged quantities to facilitate a quick transaction. He would not be likely to keep it all in one bag and break off the estimated amount needed for the sale; otherwise, there was a risk of spilling the substance. If a dealer did break off a piece for a purchaser, it would not be to sell that piece, but to allow the purchaser to test its potency before buying a larger amount. In this respect she again disagreed with Hendrickson’s description of a typical street sale. She noted the defined amounts (e.g., a “teener,” 1.75 grams; an “eighth,” 3.5 grams; a half ounce, 14 grams) that were accompanied by set prices; 12.34 grams, on the other hand, would be difficult to price without doing the math, and that was “just not typical.”

Dr. Murphy did not know the specific elements legally distinguishing possession for use from possession for sale or the legal definition of a usable amount. To know if methamphetamine was possessed for sale she would determine whether it was packaged in units typical of amounts for sale. Possessing cash, the person’s location, and possession of multiple unused baggies “definitely could” indicate sales, though there were other explanations. Possession of a cell phone was “one component of somebody[’s] being a drug seller,” but not necessarily, “since we all have cell phones.” If a user is glad that the police had not found his cell phone, that could mean that the user was relieved that the phone numbers of his or her dealers were not exposed.

When offered a hypothetical scenario based on Officer Cuyle’s testimony, Dr. Murphy expressed the opinion that the methamphetamine found on defendant was possessed for personal use. The packaging in a tied sandwich bag would have been a precarious way to sell drugs, as they could have spilled; moreover, a purchaser would have no way of knowing how much he or she was getting. The specified amount of 12.34 grams was less than half an ounce, so the hypothetical user would probably have already used some in the bag, especially since the pipe was there as well and no scale was found.

During cross-examination Dr. Murphy qualified her statement that 12.34 grams was not a normal amount to sell on the street; some dealers “short” the amount sold, especially if they use some of it for themselves. She also acknowledged that 12.34 grams would be “six times as much as what the typical homeless person would have on their person,” and that five grams could also be an amount to sell. And she agreed that while sellers usually carried a scale, sometimes they had to “eyeball” the amounts, especially among homeless sellers. But even then—if a downtown seller were in the habit of “eyeballing” and pulled the drugs from a pouch and baggies from a backpack—she would still conclude that the drugs were possessed for personal use because they were “not ready to be sold.”

Dr. Murphy further acknowledged that there can be variation among cities in how methamphetamine is packaged or sold. Of the 15 San Jose methamphetamine users Dr. Murphy had interviewed, she thought five were also dealers. She admitted that a police officer experienced in methamphetamine sales investigations and familiar with the specific downtown area at issue would be more aware of current changes and trends in that area. Nevertheless, she believed that “the exigencies of drug sales, the strategies, the skills, the knowledge that you need to have are not different across metropolitan cities.” She saw no reason for the common tools used by sellers to change in downtown San Jose. And sellers were more likely to tell a researcher the truth about the amounts they used than they would be with a police officer.

Officer Hendrickson was recalled to the stand by the prosecutor. He stated that he had personally observed drugs being sold in the downtown area of San Jose 30 to 40 times. In the majority of cases, officers would see sellers pull a broken shard from a large bag secreted near or on them. In response to Dr. Murphy’s suggestion that the relationship between seller and purchaser would be adversely affected by the rough practice of breaking off pieces without a scale, Hendrickson explained that both participants realize that the transaction will be less accurate than using a scale. Although being “shorted” definitely had the potential for violence, he had not seen a hand-to-hand transaction followed by an altercation between seller and buyer. And responding to a juror question, he said that officers rarely come across scales used by homeless sellers in the downtown area.

Although the court instructed the jurors with both simple possession and possession for sale, they found defendant guilty of possession for sale. On August 3, 2018 the court suspended imposition of sentence and placed defendant on formal probation for three years, subject to a jail term that was deemed served. As a further condition of probation he could be searched without a warrant at any time, including search of all electronic devices. Defendant thereafter filed a timely notice of appeal.

In early October of 2018 the People filed a petition to modify the terms of probation based on defendant’s failure to comply with four of the probation conditions. On November 28, the court revoked probation. On January 31, 2019, after defendant admitted violating probation, the court sentenced him to 16 months in the county jail.

Discussion

As noted, the primary issue in dispute at trial was whether defendant intended to sell the methamphetamine in his possession. Both the prosecution expert, Officer Hendrickson, and the defense expert, Dr. Murphy, provided critical evidence on this question. Defendant contends that the trial court, having treated Hendrickson “with respect, deference, and kindness,” engaged in judicial misconduct “by attacking the credibility of the defense expert, emphasizing her bias, and distorting her testimony with sarcastic commentary. The trial court’s discourteous and disparaging remarks discredited Dr. Murphy and created the impression that the court was allied with the prosecution.”

1. Comments on Payment of Defense Expert

The comments defendant challenges on appeal were made at two points during Dr. Murphy’s testimony on the fourth day of trial. On direct examination defense counsel established that testifying as an expert was new to the witness and that she was being paid an hourly rate for her unbiased opinion. During cross-examination the prosecutor elicited from her that she was being paid $225 an hour and that she had spent “maybe” five hours reviewing the background of the case, mainly through discussion of the relevant facts provided in the police report, which defense counsel had summarized for her. The witness acknowledged that if there had been significant information in the police report that counsel had not read to her, it might have changed her opinion. At that point the court returned to the question of payment with the following colloquy: “THE COURT: Do you get paid the 225 dollars while you wait outside the courtroom? [¶] THE WITNESS: I hope so. [¶] THE COURT: Just wondering. So you said five hours. It’s more than five hours. You have been waiting five hours here today. The witness said, “Yeah. I’m sorry, I didn’t—I was just guessing. So I probably did another hour and a half prep before.” After admonishing the jury not to discuss the case, the court appeared to address the witness, saying, “If you could be back here tomorrow nine o’clock. Thank you.” Dr. Murphy responded, “Um, Your Honor—” at which point the following brief exchange took place: “THE COURT: You need to talk to your attorney. [¶] [Defense counsel]: Well, I’m not her attorney. I— [¶] THE COURT: Well, the person that’s paying you 225 dollars an hour, talk to them.” The jurors were then excused and escorted from the courtroom.

Defendant contends that the court’s focus on the payment Dr. Murphy would receive for testifying “conveyed to the jury that [she] was nothing more than a hired gun” and was not credible. The People assert that defendant forfeited this point by failing to object. (See, e.g., People v. Seumanu (2015) 61 Cal.4th 1293, 1320 (Seumanu) [noting “general rule” that “a specific and timely objection to judicial misconduct is required to preserve the claim for appellate review”].) We disagree, at least with respect to the second exchange. Before the jury was brought in the next morning, defense counsel was permitted to address the court. She first reminded the court of the time constraints of the case and the unrelated delays that had prolonged the prosecution’s case. She then stated, “At 4:30, instead of . . . saying, Counsel, we need to wrap it up, last question, or approach to discuss timing, the Court actually interrupted Dr. Murphy while she was testifying and said we’re coming back at nine o’clock. And when she expressed some amount of just sort of like shock, she just didn’t know what was going on because she’s not used to doing this, the Court made a comment in front of all of the jurors that insinuated that her time doesn’t matter, and it was very dismissive, and . . . that, well, she’s getting paid 225 dollars an hour, and she needs to take it up with me, her attorney. And I think [the] Court’s comment . . . [¶] has the effect of diminishing her as a defense witness in the eyes of [the] juror[s]. The comments the Court makes about witnesses . . . and the way the Court treats witnesses has an effect on jurors.” Counsel then suggested that since she was at the end of her redirect at that time, Dr. Murphy’s examination “could have gone five, ten more minutes to completely finish her testimony.

The court said, “Okay. I get the point. [¶] Now here is my point.” At day five, the trial had already taken longer than the predicted three days, because both sides “ask[ed] too many questions,” with the same question being asked several different times. The court made the further observation that both sides had caused delays in starting court sessions each day, and it explained that an ending time of 4:30 was necessary to ensure that the deputy returned defendant to custody on time.

The court then invited objections on the proposed jury instructions and verdict form, and the jury was returned to the courtroom.

We find counsel’s protests of the court’s assertedly “dismissive” attitude toward Dr. Murphy’s payment arrangement to be sufficient to preserve defendant’s challenge on appeal. It was not necessary, as the People suggest, for counsel to accuse the court of misconduct outright or to request that it strike its own comments or declare a mistrial. We therefore agree with defendant that this argument was preserved for appellate review.

We do not agree, however, that the court’s comments regarding the payment of the defense expert rose to the level of judicial misconduct in the circumstances presented. A trial court “may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.” (Cal. Const., art. VI, § 10.) The court “should of course refrain from making comments before the jury that might suggest it has allied itself with the prosecution. [Citation.] For example, ‘[a] trial court commits misconduct if it “persists in making discourteous and disparaging remarks to a defendant’s counsel . . . and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense . . . . [Citation.]” ’ ” Seumanu, supra, 61 Cal.4th at p. 1320.) Further, when the court engages in a dialogue with the witness in the presence of the jury, its questioning “must be ‘ “temperate, nonargumentative, and scrupulously fair” ’ [citation], and it must not convey to the jury the court’s opinion of the witness’s credibility. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 597.)

Here, the court’s first comment went no further than to highlight the fact that Dr. Murphy had been kept waiting for an extended period; that she had to be paid for that time was an obvious inference but irrelevant and did not undermine the expert’s credibility. The comment instead called attention to the slow pace of the proceedings, a “point” the court clarified and emphasized to counsel the next morning. To the extent that the tone of the second reference to Dr. Murphy’s fee conveyed impatience, it was brief and isolated, and it directed all participants toward the need to end the proceedings for the day.

2. Comment on Defense Expert’s Response to Juror Question

Defendant also calls attention to an exchange that occurred in the morning of day five, before redirect of Dr. Murphy resumed. The court asked a question posed by a juror: “Why would a user carry multiple baggies without residue in them if they weren’t for selling?” Dr. Murphy answered, “Well, there are a number of reasons people would have sandwich bags in their backpack[s]. I have a sandwich bag in my purse right now. Maybe to carry the pipe. Maybe they were just left over bags. We don’t really know.” The court then said, “Okay. So you don’t know. Okay. And go ahead with your redirect.” Defendant now characterizes this response as a “biting sarcastic remark” which was uttered with emphasis on the word “you,” as if “the defense expert was the only one in the courtroom who did not know why a methamphetamine user would carry unused plastic bags.”

Defense counsel did not object on this occasion, however, and therefore has forfeited the argument. In any event, there is nothing in the record that establishes the court’s emphasis on “you” as the only person present who did not know the implications of the given hypothetical scenario. It could be that the court, in an exercise of control over the proceedings, merely wished to finish with the juror’s question and proceed with Dr. Murphy’s morning testimony.

3. Prejudice

Even if misconduct occurred in any of the identified remarks, we cannot conclude that they were prejudicial, individually or cumulatively. The role of a reviewing court “ ‘is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 78.) Here, even if the trial judge in those isolated moments displayed inordinate impatience, we see no indication that he thereby created the impression that he was “ ‘ “allying himself with the prosecution.” ’ [Citation.].” (People v. Harris (2005) 37 Cal.4th 310, 347.) Notably, the court in its final instructions admonished the jurors with CALCRIM No. 3530, modifying it only to emphasize that it was not making any comments about the evidence. We must assume that the jurors followed this instruction, along with those directing them to decide the facts based solely on the evidence and reminding them that they were the sole judges of the believability of any witness, including those testifying as experts. (Harris, supra, at pp. 350-351 [in assessing prejudice from judge’s questioning, reviewing court assumes jury followed instruction not to base its determination of credibility on anything the court said or implied].) We thus conclude that the intemperate remarks by the trial judge did not deprive defendant of a fair trial, and further, that it is not reasonably probable that the jury would have reached a different verdict absent the trial court’s remarks. (Cf. Seumanu, supra, 61 Cal.4th at p. 1321 [“single, fleeting, and ambiguous interjection” nonprejudicial in light of jury instruction to disregard any indication that the judge had a belief about the facts or credibility of any witness].)

4. Electronics Search Condition

As the trial court ordered at the initial sentencing hearing, the warrantless search condition of defendant’s probation required him to provide passwords or codes for his electronic devices, including cell phones, upon the request of any law enforcement officer or probation officer. Defendant filed his notice of appeal from the August 3, 2018 judgment on September 26, 2018.

In his opening brief, filed in this court on May 6, 2019, defendant contested the electronics search condition. By this time, however, the court had already revoked defendant’s probation and sentenced him to 16 months in jail. The People point out, and defendant agrees, that the argument relating to the search condition is moot and therefore need not be addressed.

Disposition

The judgment is affirmed.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

GROVER, J.

_______________________________

DANNER, J.

People v. Lundquist

H046277