Filed 10/5/17 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E065359
v. (Super.Ct.No. RIF1301585 &
RIF1209515)
BOBBY JOHNNIE MCCLOUD,
ORDER MODIFYING OPINION
Defendant and Appellant. AND DENYING PETITION FOR
REHEARING
[NO CHANGE IN JUDGMENT]
We deny the People’s petition for rehearing and modify the opinion filed in this
matter on September 27, 2017 as follows:
1. Add the following language at the end of footnote 1 on page 2:
The People filed a petition for rehearing requesting we advise the trial court that it
had erred in deeming possession for sale a subordinate count requiring a reduced
sentence (one-third the middle term). They point out Penal Code section 1170.1’s
principal/subordinate sentencing formula does not apply to felonies punishable by
indeterminate terms, like McCloud’s transportation for sale conviction. We
decline to address the issue, as our reversal of the indeterminate term conviction
renders it moot.
1
2. Delete the text of the disposition and replace it with:
We reverse the judgment as to the transportation for sale count, affirm the
judgment in all other respects, and remand to the trial court for resentencing. The
People may elect to retry McCloud for transportation for sale at the option of the
prosecuting attorney.
Except for these modifications, which do not affect the judgment, the opinion
remains unchanged.
CERTIFIED FOR PARTIAL PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
2
Filed 9/27/17 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E065359
v. (Super.Ct.No. RIF1301585 &
RIF1209515)
BOBBY JOHNNIE MCCLOUD,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed in part; reversed in part with directions.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Kristen
Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
* We certify this opinion for publication under California Rules of Court, rules
8.1105(b) and 8.1110, except for parts II.B, and II.C.
1
In late 2012, the police searched a residence where Bobbie Johnnie McCloud
happened to rent a room. The officers were initially there to perform a probation search
of someone else, but ended up arresting McCloud when they found crack cocaine and a
loaded gun inside his bedroom. In early 2013, after McCloud had been released from
custody on bail for charges related to that incident, police once again found him in
possession of crack cocaine.
The prosecution charged McCloud with felony possession for sale for the 2012
incident, along with three felonies based on firearm possession. For the 2013 incident,
the prosecution charged him with felony transportation for sale (Health & Saf. Code,
§ 11352, subd. (a)), misdemeanor possession of a stun gun by a felon, and misdemeanor
resisting an officer. The jury convicted McCloud of all the charges except the three
firearm-related felonies. In a subsequent bench trial, the court found McCloud had a
prison prior, a prior strike conviction for robbery, and three prior super strike convictions
for assaulting an officer with a machine gun, and it sentenced him to a total of 28 years 8
months to life.1
McCloud raises three arguments on appeal. He contends we must reverse his
transportation for sale conviction because the trial court failed to instruct the jury that
“transportation” means for the purpose of sale following the 2014 amendment to Health
1 The court deemed transportation for sale the principal count and imposed an
enhanced sentence of 25 years to life as a result of the super strikes (Pen. Code,
§ 1170.12, subd. (c)(2)(A)), plus a two-year enhancement for committing the offense
while out on bail (Pen. Code, § 12022.1). It imposed an eight-month sentence for the
possession for sale count, plus a one-year term for the prison prior.
2
and Safety Code section 11352. The People agree the instruction was erroneous but
argue the error was harmless because the evidence of intent to sell was overwhelming.
Next, he argues we must also reverse the possession for sale conviction because the
evidence supporting the charge was the fruit of an unlawful warrantless search. Finally,
he argues the trial court abused its discretion by allowing the prosecution to amend the
super strike allegations to correct a clerical error after the jury had been discharged.
We conclude McCloud’s second and third arguments lack merit, but his first does
not. In the published portion of this opinion, we conclude the jury instructions for
transportation for sale omitted an essential element of the offense and the evidence
supporting the missing element was not overwhelming. We therefore reverse that
conviction, but affirm the judgment in all other respects.
I
FACTUAL BACKGROUND
A. The 2012 Incident
In September 2012, a Riverside County gang task force arrived at probationer
R.F.’s residence to perform a probation search. McCloud was standing in the driveway
of the home but ran inside and turned off the porch light when he saw the patrol cars
approaching. Upon entering the home, the officers encountered four men playing
dominoes in the kitchen. One of the officers recognized R.F. and another man he knew
to be a gang member, but McCloud did not appear to be among the group.
3
At this point, the officers began a protective sweep of the house, ordering
everyone to come out of the rooms. McCloud’s cousin, Antonio, came out of McCloud’s
bedroom. McCloud was in the bathroom and remained there for about thirty seconds and
a few more commands before flushing the toilet and emerging. The officers swept
through McCloud’s room to see if anyone else was inside, and in so doing saw what
appeared to be crack cocaine and drug paraphernalia in plain view on a table.
The officers requested and obtained McCloud’s consent to more thoroughly search
his room. In total, they found 0.9 grams of crack cocaine; a digital scale; a ceramic plate;
pills; a Ziploc bag containing about 100 smaller plastic bags; a marijuana grinder and
pipe; an operable .22 revolver loaded with six live rounds of ammunition under the
mattress; and over $750 in cash, in denominations of $20 or less, stashed in various
places near the cocaine. Half of the cocaine lay on the ceramic plate and the other half
was packaged inside two plastic baggies. There was cocaine dust on the scale and on a
razor blade sitting on the plate.
A cell phone lying in the hallway just outside McCloud’s room contained text
messages addressed to him. One of the messages was from earlier that day and said,
“Can you bring a dime, please?” McCloud had responded, “No. Don’t have any.”
At trial, a deputy who was part of the search team testified as the prosecution’s
drug expert. He believed McCloud intended to sell the cocaine found in his bedroom.
He based his opinion on the fact McCloud did not appear to be under the influence during
the search and was not in possession of a pipe or other device for ingesting the cocaine.
4
McCloud was, on the other hand, in possession of several indicia of sale. The ceramic
plate and razor blade would be used to cut the rocks into sellable, smaller amounts that
would fit inside a pipe; the scale would ensure the accuracy of those amounts; and the
small baggies would be for individual packaging. The expert estimated the cocaine found
in McCloud’s bedroom was worth about $40 total—there was $20 worth on the plate and
$10 worth inside each of the two plastic bags. He explained dealers do not typically keep
large amounts of cash on them, but do tend to accumulate money until they have enough
to buy more supply. That McCloud had a large amount of cash and a relatively small
amount of cocaine indicated he may have been getting ready to resupply. The messages
in McCloud’s cell phone also indicated he intended to sell the cocaine, as a “dime” refers
to $10 worth of a substance and the police found two baggies with $10 worth of cocaine
in his room.
The expert also said when he searched the bathroom, he noticed the plunger was
wet, indicating it had been recently used. In his experience serving search warrants on
suspected drug dealers, they often will try to flush drugs down the toilet as soon as the
police arrive. He believed this may have been why McCloud was in the bathroom
flushing the toilet when the officers began the sweep.
B. The 2013 Incident
In February 2013, while out on bail for the charges stemming from the 2012
search, McCloud initially resisted a pat down search during which officers found a pill
bottle containing marijuana in his pocket. On the passenger seat of the car he had been
5
driving, the officers found a pill bottle containing 1.4 grams of crack cocaine, a stun gun,
$45 in cash, and two cell phones.2
According to the prosecution’s drug expert, the circumstantial evidence of intent
was not as strong as it was in the 2012 incident, and he could not be sure whether
McCloud planned to sell or use the cocaine the officers found in his car. In response to
the prosecutor’s question whether McCloud possessed the 1.4 grams of cocaine “for
purposes of sale,” the expert answered, “It could be and it could not be.” He explained:
“[N]ormally . . . to prove that it’s for sales we want to see things like packaging . . . We
want to see a pay-owe sheet. Someone could conceivably possess [1.4 grams] of cocaine
for their personal use.” The expert said if it had been his case, he would have
investigated McCloud’s cell phone to see if it contained call logs indicative of dealing.
As for the cash McCloud was carrying, the expert viewed $45 as a neutral amount,
noting, “He’s got money. Everybody has money, but it’s hard to say one way or the other
on that.”
When the prosecution asked the expert how the absence of a crack pipe and the
presence of a stun gun and two cell phones factored into his analysis, he responded those
facts made him “lean[] more towards sales.” He explained that drug dealers often carry
weapons to defend themselves and their product because “you’re dealing in a business
you can’t call the police if something happens.” He also noted 1.4 grams was “quite a bit
for a user to possess for a casual or regular user.”
It is unclear from the officers’ testimony whether the cell phones were in
2
McCloud’s pocket or his car, but the point is not material to our analysis.
6
On cross-examination, defense counsel attempted to elicit a more definite opinion
on McCloud’s intent. The following exchange occurred:
“Q. Deputy Williams, he could have been possessing it for sales, or he could
not have been possessing it for sales, really is what you testified to?
A. Yes, sir.
Q. So he might have been selling drugs, or he might have . . . possessed
those for personal use, you just don’t know?
A. Without more facts, no, sir, I couldn’t really say positively one way or the
other.
Q. Okay. So he might have been, you just don’t know?
A. That’s correct.”
On redirect, the prosecutor asked whether the expert’s conclusion changed if he
considered the contraband found in McCloud’s bedroom during the 2012 search. The
expert responded, “Based upon what I knew when I was at his house, absolutely I would
say he’s back in business. That he’s selling.” On recross, defense counsel asked the
expert to confirm his opinion was that McCloud “might have possessed it for sales, might
have possessed it for personal use,” and the expert replied, “[b]ased upon the facts of this
case alone, yes, sir.”
C. Defense Evidence
McCloud’s cousin Antonio had been arrested on the evening of the 2012 search
and pled guilty to possession of a controlled substance while armed with a firearm. At
McCloud’s trial, Antonio said he used to sell drugs to make ends meet. He said on the
day of the 2012 search he had sold McCloud three rocks of cocaine for $50. McCloud
7
did not sell drugs—he had a job working as a “sign twirler”—but he had a drug problem
and smoked crack at least once a day. McCloud would smoke “primos,” a modified type
of “blunt” made by cutting open a cigar with a razor blade and replacing the tobacco with
marijuana and cocaine. Antonio did not like when McCloud got high and he did not like
selling him drugs, but he felt it was necessary to avoid becoming homeless. Antonio also
said the gun under McCloud’s mattress belonged to him.
D. The Verdict
The jury found McCloud guilty of possession for sale (Health & Saf. Code,
§ 11351), transportation for sale (Health & Saf. Code, § 11352, subd. (a)), misdemeanor
being a felon in possession of a stun gun, and misdemeanor resisting an officer. It found
him not guilty of possessing cocaine while armed with a loaded, operable firearm (Health
& Saf. Code, § 11370.1), being a felon and narcotic addict in possession of a firearm
(Pen. Code, § 29800), and being a felon in possession of ammunition (Pen. Code, §
30305).
II
DISCUSSION
A. Transportation for Sale Instruction
The parties correctly agree the trial court failed to instruct the jury with an
essential element of transportation for sale (Health & Saf. Code, §11352)—that when
McCloud transported the cocaine he intended to sell it. Their disagreement concerns only
whether the instructional error was prejudicial. McCloud contends it was because the
8
prosecution’s circumstantial evidence of intent to sell was not strong and the entire
defense theory was based on evidence McCloud was an addict, not a dealer. The People
contend the error was harmless because there was overwhelming evidence of an intent to
sell. We agree with McCloud. In our view, the circumstantial evidence of McCloud’s
intent was conflicting, and not particularly strong one way or the other. As a result, we
cannot say with confidence the jury would have found him guilty of the offense had it
been properly instructed transportation means not just movement from one place to
another, but movement for the purpose of sale.
1. Additional factual background
The prosecution charged McCloud with the offense in February 2013. At the
time, a defendant could be guilty of violating Health and Safety Code section 11352 if he
or she simply transported the proscribed substances. (Health & Saf. Code, § 11352,
former subd. (a); Stats. 2011, ch. 15, § 154.) As we explained in People v. Lua (2017) 10
Cal.App.5th 1004, 1012 (Lua): “Prior to January 1, 2014, section 11379 provided that
any person who ‘transports’ specified controlled substances, including
methamphetamine, shall be punished by imprisonment. (§ 11379, former subd. (a); Stats.
2011, ch. 15, § 174.) The courts had interpreted the word ‘transports’ to include
transporting controlled substances for personal use. [Citations.] The statute provided
enhanced penalties for a person who ‘transports for sale,’ as opposed to for some other
purpose, but a defendant could be convicted of the offense without proof of intent to sell.
(§ 11379, former subd. (b); Stats. 2011, ch. 15, § 174.)”
9
Effective January 2014, the Legislature amended the statute by adding a new
subdivision that states, “[f]or purposes of this section, ‘transports’ means to transport for
sale.” (Health & Saf. Code, § 11379, subd. (c); Stats. 2013, ch. 504, § 2.) In August
2014, the CALCRIM authors amended CALCRIM No. 2300 to reflect the 2014 statutory
amendment by inserting the words “for sale” after the word “transported”: “To prove
that the defendant is guilty of this crime, the People must prove that: [¶] 1. The
defendant (. . . transported for sale . . .) a controlled substance.” (CALCRIM No. 2300
[August 2014 update], italics added; see also Lua, supra, 10 Cal.App.5th at p. 1012
[discussing the CALCRIM update].) The authors also added the words “for sale” to the
instruction’s definition of the term “transports”: “A person transports something if he or
she carries or moves it from one location to another for sale, even if the distance is
short.” (CALCRIM No. 2300, second italics added.)
McCloud’s trial began in November 2015. For the transportation for sale charge,
the trial court instructed the jury with a pre-amendment version of CALCRIM No. 2300
that did not contain the “for sale” additions:
“The defendant is charged . . . with selling/furnishing/administering/giving
away/transporting/importing cocaine base, a controlled substance in violation of [Health
& Safety Code section] 11352.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant transported a controlled substance;
2. The defendant knew of its presence;
10
3. The defendant knew of the substance’s nature or character as a controlled
substance;
4. The controlled substance was cocaine base;
AND
5. The controlled substance was in a usable amount. [¶] . . . [¶]
A person transports something if he or she carries or moves it from one location to
another, even if the distance is short.”
During closing argument, the prosecutor argued McCloud was guilty of the
offense because he “transported for sale a controlled substance, [1.4 grams] of crack
cocaine.” As to the transportation element, the prosecutor said, “[A] person transports
something if he carries or moves it from one location to another, even if the distance is
short. So somebody might be thinking transportation. Okay. That means he had to
transport it from Mexico to California. No. Any short distance whatsoever is sufficient.
Any movement. [¶] . . . [¶] So the fact that [McCloud] was in the vehicle driving with
that on the passenger seat constitutes transportation.”
Defense counsel argued McCloud was a drug addict who intended to use, not sell,
the cocaine the police found in his car. He pointed out the lack of packaging and
paraphernalia indicative of sales and the fact the drug expert could not even be sure of
McCloud’s intent: “[The drug expert] himself testified that based on the fact that there
were no baggies, there were no scales, there were no pay-owe sheets, there isn’t an
11
excessive amount of cash. . . . His testimony was that might have been, might have been
for sales, or it might have been for personal use.”
2. Analysis
Health and Safety Code section 11352 as amended at the time of McCloud’s trial
provided transportation was a crime only if the prosecution established beyond a
reasonable doubt the transportation was for sale. The jury instruction did not include the
new “for sale” element, and as a result it was erroneous. (People v. Mil (2012) 53 Cal.4th
400, 409 (Mil) [it is error to omit from instructions an essential element of an offense and
defendant need not object to preserve the claim for appeal].) As noted, the parties agree
on this point. The issue is whether the instructional error was harmless.
Omission of an element of an offense is not reversible per se but rather is subject
to the harmless-beyond-a-reasonable-doubt standard articulated in Chapman v. California
(1967) 386 U.S. 18. (Neder v. United States (1999) 527 U.S. 1, 4 (Neder); People v.
Merritt (2017) 2 Cal.5th 819, 826, cert. filed May 22, 2017 (Merritt).) In cases of
omitted elements, our high court has cautioned the error “will be deemed harmless only
in unusual circumstances, such as where each element was undisputed, the defense was
not prevented from contesting any [or all] of the omitted elements, and overwhelming
evidence supports the omitted element.” (Merritt, at p. 828, italics added.)
“Our task, then, is to determine ‘whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted element.’” (Mil, supra,
53 Cal.4th at p. 417.) In Neder, the United States Supreme Court instructed appellate
12
courts to “conduct a thorough examination of the record” and “[i]f, at the end of that
examination, the court cannot conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error—for example, where the defendant contested
the omitted element and raised evidence sufficient to support a contrary finding—it
should not find the error harmless.” (Neder, supra, 527 U.S. at p. 19, italics added.) As
our high court has explained, review for overwhelming evidence is essentially the reverse
of a review for substantial evidence to support a conviction: “[U]nder [a substantial
evidence review] . . . we would view the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of any facts the jury
might reasonably infer from the evidence,” however, “our task in analyzing the prejudice
from the instructional error is whether any rational fact finder could have come to the
opposite conclusion.” (Mil, at p. 418.) Applying this standard here, we must find the
error prejudicial if the record contains evidence to support a finding McCloud intended to
use, rather than sell, the cocaine.
Having reviewed the record, we conclude it contains such evidence. First of all,
and as the prosecution’s drug expert pointed out, McCloud was in possession of none of
the typical indicia of sales. The cocaine was in a single container (the pill bottle)—
McCloud had no baggies or other packaging, no scale, no pay-owe records, and we do
not know whether his phone contained any evidence of sales. Additionally, McCloud’s
cousin testified McCloud was a drug addict who smoked crack on a daily basis, and that
his preferred method of ingestion was smoking repurposed cigars filled with marijuana
13
and cocaine, or “primos.” That McCloud was found carrying not just the cocaine but also
marijuana supports an inference he planned to combine both drugs into a primo. This
evidence, coupled with the expert’s inability to definitively conclude McCloud intended
to sell the cocaine, reasonably supports a finding he did not intend to sell the cocaine but
rather would have smoked it to support his addiction.
Two recent California Supreme Court cases inform our analysis. In Merritt, the
Court found the trial court’s failure to instruct the jury with any of the elements of the
charged robbery offenses harmless due to the strength of the evidence and the defense
theory of the case. (Merritt, supra, 2 Cal.5th at pp. 831-833.) The defendant had been
charged with robbing two different clerks on two different occasions, and both crimes
had been caught on the surveillance cameras. (Id. at pp. 822-824.) At trial, the defense
conceded there was “no question [the victims] were robbed,” but argued the defendant
had been wrongly identified as the perpetrator from the surveillance videos. (Id. at
p. 824) Based on this concession and the fact the crimes were recorded, the Court
concluded it was impossible the jury would have acquitted the defendant of robbery if
they had been instructed on the elements of that offense. The only real issue at trial was
identity—there was no dispute the crimes that had been committed satisfied the elements
of robbery. Having decided the identity issue against the defendant, it was a foregone
conclusion the jury would find the elements of robbery had been satisfied. (Id. at
pp. 831-833.)
14
The prejudice analysis came out differently in Mil. There, the defendant was
convicted of first degree murder with robbery-murder and burglary-murder special
circumstances under an aiding and abetting theory of liability. (Mil, supra, 53 Cal.4th at
p. 405.) The Court held the trial court erred by failing to instruct on two elements: (1)
the defendant was a “major participant” in the burglary and robbery and (2) had acted
with reckless indifference to human life. (Id. at pp. 408-409.) At trial, defendant
contested whether he acted with reckless indifference to human life, and that issue
became the focus on appeal. The appellate court concluded the failure to instruct on
reckless indifference was harmless, citing all of the evidence supporting an inference the
defendant was subjectively aware of a grave risk of death when he participated in the
burglary and robbery. (Id. at pp. 417-418.) The prosecution had presented evidence the
defendant knew his associate, the direct perpetrator of the murder, liked to carry “‘big old
steak knives with her,’” as well as evidence he himself had violently attacked the victim
during the burglary-robbery. (Id. at p. 418.)
The Supreme Court concluded the appellate court had used the “less demanding”
substantial evidence standard and instead should have looked for evidence to support an
inference the defendant was not subjectively aware of the risk of death when he
participated in the burglary-robbery. (Mil, supra, 53 Cal.4th at pp. 417-418.) Using the
more demanding standard, the Supreme Court found the record contained evidence the
defendant told the police during an interview that he was unaware his associate had
planned to use any physical violence during the burglary and robbery and that he was
15
unaware she had been armed with a knife. (Id. at pp. 418-419.) The Court also noted the
evidence about the defendant’s physical attack on the victim was conflicting. There was
some evidence he had engaged in a violent fist attack, but other evidence suggested his
blows did no more than leave the victim a little dazed. (Id. at p. 419.)
Based on the fact the record contained some evidence to support the defendant’s
claim he had no subjective knowledge of the risk of death, the Court concluded “a
rational juror, given proper instructions, could have had a reasonable doubt whether
defendant was subjectively aware of a grave risk of death when he participated in this
burglary and robbery.” (Mil, supra, 53 Cal.4th at p. 419.) “It follows,” the Court
explained, “omission of the element concerning defendant’s state of mind was prejudicial
and requires reversal of the burglary-murder and robbery-murder special circumstances.”
(Ibid.)
Reviewing the trial record under the overwhelming evidence standard articulated
in Mil, we find our case to be more like Mil than Merritt. Unlike Merritt, the evidence
supporting the omitted element (intent to sell) was not overwhelming, the event was not
recorded, and defense counsel did not stipulate the evidence satisfied the omitted
element. Rather, the prosecution and the defense adduced conflicting evidence on the
issue, as was the case in Mil.
The People argue the evidence of intent to sell was overwhelming because the
expert opined McCloud intended to sell the cocaine and because McCloud had more
cocaine on him that evening than he did in 2012. We see two problems with this
16
argument. First of all, the 2012 and 2013 incidents are distinct, and it would be improper
for the jury to assume an intent to sell for the transportation charge based on the strength
of the evidence supporting the possession charge. Second, the People overstate the
expert’s opinion on McCloud’s intent. The difference between 0.9 (the amount McCloud
possessed in 2012) and 1.4 grams (the amount he had in 2013) is relatively minor, and the
expert himself said a person “could conceivably possess . . . [1.4 grams] of cocaine for
their personal use.” Contrary to the People’s characterization, we find the expert was
ultimately unable to commit to the sales theory. He began his testimony by stating he
could not be sure about intent because McCloud did not possess the typical indicia of
sale, and the closest he came to expressing a definite opinion was to say he was “leaning”
towards intent to sell based on the presence of the stun gun and the two cell phones. At
multiple points before and after that statement, however, he confirmed he was unsure one
way or the other.
We find the expert’s refusal to express a firm opinion on intent crucial to our
prejudice analysis. If the very person trained to discern the difference between dealers
and users expressed doubts about McCloud’s intent, it is only reasonable to assume a
properly instructed jury would as well. Where even the expert on the omitted element
does not view the pertinent evidence as strong, we cannot conclude the evidence is so
overwhelming as to compel a conviction despite the omission.
We also cannot conclude the prosecutor’s reference to the offense as
“transportation for sale” during closing argument rendered the error harmless. In certain
17
circumstances, the “possibility of confusion” occasioned by an instructional error may be
“diminished by the parties’ closing arguments.” (People v. Hajek and Vo (2014) 58
Cal.4th 1144, 1220, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th
1192.) Here, however, while the prosecutor called the offense “transportation for sale,”
her commentary on the transportation element, if anything, compounded the instructional
error. She never told the jury the transportation must be for the purpose of sale. Instead,
she conveyed the crucial point about transportation was it could be over any distance, no
matter how small: “Any short distance whatsoever is sufficient. Any movement. [¶] . . .
[¶] So the fact that [McCloud] was in the vehicle driving with that on the passenger seat
constitutes transportation.” Far from correcting the instructional error, this commentary
emphasized the pre-amendment version of the statute, where any movement, for any
purpose, was sufficient to constitute a violation.
Given the state of the evidence on intent to sell, we hold McCloud was prejudiced
by the incomplete instruction and reverse his transportation for sale conviction.
B. Admissibility of the Evidence Supporting Possession for Sale
Next, McCloud argues the trial court erroneously admitted the evidence found
during the 2012 search because the police lacked a warrant to search his bedroom and
cell phone. We find no error.
1. McCloud’s Suppression Motion
Two members of the gang task force who performed the search testified at the
hearing on McCloud’s motion to suppress. The district attorney investigator said the
18
search team arrived in a five-car convoy to R.F.’s residence around 8:30 p.m. The
residence was a two-story house located in the Eastside, which according to the
investigator, is a neighborhood of Riverside known to have two predominant gangs,
heavy violence, drug sales, and prostitution. The investigator noticed McCloud standing
next to a car in the driveway as they approached. When McCloud saw the police cars he
“panicked, and then ran” into the house. The investigator and another officer walked
over to the side of the house and heard what sounded like someone stepping on aluminum
cans on the upstairs balcony. The officer shined his flashlight on the balcony and
reported that he saw someone with black curly hair—a description that did not match
McCloud—retreat inside. At trial, Antonio said he was the person on the balcony.
The sheriff’s deputy, who rode in the fourth car in the convoy, said when he
reached the house two officers told him McCloud had just run inside and the front porch
light had gone off. Both the investigator and deputy thought McCloud’s behavior was
suspicious.
The house manager happened to be on a bicycle near the front door, and the
deputy asked him if he knew the name of the man who had just run from them. The
manager identified McCloud, said his room was at the end of the hallway on the second
floor, and gave the deputy the key to the front door. The residence appeared to be a
single-family home, and only after the search did the deputy learn it contained seven
separately rented rooms.
19
The front door opened into a staircase, so the only option was to go upstairs. The
deputy announced his presence and walked into the second-floor kitchen, where four men
appeared to be playing dominoes. Three of these men said they were on probation.
While the deputy remained in the kitchen, the other officers performed a protective sweep
of the house, ordering anyone who was inside a room to come into the hallway.
From his vantage point, the deputy could see the door to McCloud’s room. The
door was closed and there was what appeared to be clothing and a cell phone lying on the
floor next to it. In response to the officers’ commands, Antonio came out of the room,
leaving the door open behind him. After a few more commands, McCloud flushed the
toilet and emerged from a bathroom directly across the hallway. The officers continued
the sweep after McCloud and Antonio complied with the order to lie down, at which
point they found the cocaine, paraphernalia, and cash in plain view in McCloud’s room.
The deputy told McCloud they wanted to search his room and his car based on the
contraband they found in his room, and McCloud signed a consent form allowing the
police to search both areas. It was during the more thorough search of his bedroom that
the officers found the gun under the mattress. The officers also searched the phone lying
outside the room to see whom it belonged to, and in doing so found the drug-related text
messages.
McCloud’s counsel argued the search of his room was unlawful because once the
officers learned it belonged to someone other than the probationer they were there to
search, they should have sought a warrant. He also argued the search of McCloud’s cell
20
phone was unlawful following the United States Supreme Court’s decision in Riley v.
California (2014) 573 U.S. ___ [134 S.Ct. 2473] (Riley), which requires police to obtain
a warrant before exploring the contents of a cell phone. He asked the court to exclude the
text messages, drugs, paraphernalia, and gun from evidence.
The court denied the motion, finding the protective sweep lawful and McCloud’s
subsequent consent valid. The court declined to rule on the Riley issue and told McCloud
he could bring an in limine motion before or during trial. On the first day of trial, the
court denied McCloud’s renewed suppression motion on the ground the good faith
exception to the exclusionary rule applied, as the search had taken place before Riley
when California law allowed warrantless searches of cell phones incident to arrest.
2. Analysis
When reviewing a ruling on a suppression motion, we defer to the trial court’s
factual findings, if supported by substantial evidence, and independently determine the
constitutional significance of those findings. (People v. Suff (2014) 58 Cal.4th 1013,
1053.) “‘The Fourth Amendment to the federal Constitution prohibits unreasonable
searches and seizures.’” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212 (Macabeo).)
In the absence of a warrant, it is the People’s burden to show an exception applies. (Id. at
p. 1213.)
One such exception is a “protective sweep”—a cursory visual inspection of those
places in which a person might be hiding, designed to ensure officer safety. (Maryland v.
Buie (1990) 494 U.S. 325, 327.) Like a Terry stop and frisk (Terry v. Ohio (1968) 392
21
U.S. 1) and the preventative search of an automobile for weapons during a roadside
encounter (Michigan v. Long (1983) 463 U.S. 1032), a protective sweep can be justified
even though an officer lacks both a warrant and probable cause to believe his or her
safety is threatened. (People v. Ledesma (2003) 106 Cal.App.4th 857, 863 (Ledesma).)
The standard is “reasonable suspicion”: “[T]here must be articulable facts which, taken
together with the rational inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an individual posing a
danger to those on the arrest scene.” (Maryland v. Buie, at p. 334; People v. Celis (2004)
33 Cal.4th 667, 678 (Celis) [“A protective sweep can be justified merely by a reasonable
suspicion that the area to be swept harbors a dangerous person”].)
Officers may conduct protective sweeps while making a valid arrest or conducting
a valid probation search. (People v. Werner (2012) 207 Cal.App.4th 1195, 1206, citing
Ledesma, supra, 106 Cal.App.4th at p. 864.) The rationale behind a protective sweep is
obvious—“[w]hen conducting a search or an arrest in a home, police officers face the
potential danger posed by unknown persons located inside.” (Ledesma, at p. 860.)
Ledesma, where the court held a protective sweep “may properly precede a
probation search,” is instructive. (Ledesma, supra, 106 Cal.App.4th at p. 864, italics
added.) There, like here, “the officers discovered a substantial quantity of money and
controlled substances in a bedroom they would have been unable to enter during the
probation search.” (Id. at p. 860.) Also like here, the defendant “was not the subject of
22
the probation search, but occupied the bedroom where the money and drugs were found.”
(Ibid.)
In that case, there were two cars and a trailer parked out front when the police
arrived at the probationer’s address. (Ledesma, supra, 106 Cal.App.4th at p. 861.) The
defendant answered the door and seemed to be under the influence of drugs. He told the
officers the probationer had not been there in a while, but let them inside to search the
room where she sometimes stayed. (Ibid.) Before searching her room, one of the officers
told the defendant he was going to perform a protective sweep to “make sure nobody was
going to sneak up behind [them] while [they] had [their] heads buried in a dresser drawer
looking for items within [her] probation terms.” (Ibid.)
As the officers swept through the defendant’s room, they saw him stash what
appeared to be methamphetamine into one of his dresser drawers. (Ledesma, supra, 106
Cal.App.4th at p. 861.) After admitting the substance was methamphetamine, the
defendant consented to a more thorough search of his bedroom, during which the officers
found “more than an ounce of controlled substance and other evidence suggestive of drug
trafficking.” (Id. at p. 862.)
The Ledesma court concluded the protective sweep of the defendant’s bedroom
before the search of probationer’s bedroom was lawful because the “totality of the
circumstances” leading up to the sweep supported a reasonable suspicion the residence
contained dangerous individuals. (Ledesma, supra, 106 Cal.App.4th at pp. 863-865.)
The court based this conclusion on the fact the police were about to perform a potentially
23
lengthy probation search—which would involve “a careful examination of all the nooks
and crannies of a probationer’s bedroom”—while “on their ‘adversary’s “turf.”’” (Id. at
p. 864.) Additionally, the probationer was a convicted drug user and the defendant
appeared to be under the influence of drugs. These facts would justify a reasonably well-
trained officer to suspect “the residence was the site of ongoing narcotics activity.” (Id.
at p. 865.) Finally, that there were two cars and a trailer parked sufficiently close to the
residence created “a reasonable possibility that former occupants of the vehicles might be
inside.” (Id. at p. 866.)
While the facts of Ledesma are similar to ours, we view the testimony at
McCloud’s suppression hearing as even stronger support for a protective sweep. In
Ledesma, the officers encountered only one person inside the home, but the fact there
were multiple cars out front made it reasonable to suspect there might be others inside.
Here, in contrast, the officers knew there were at least six people inside the home, in
various places—McCloud, Antonio, and the four men in the kitchen. This large number
of occupants was reason enough for the officers to worry about their safety and want to
ascertain who was in the house before doing anything else.
Add to this McCloud’s behavior when the officers approached the house as well as
the neighborhood’s reputation for gang activity, crime, and violence, and the decision to
perform a protective sweep appears even more justified. The officers did not know who
or what they would find when they entered the home. Indeed, what initially appeared to
be a single-family dwelling turned out to be a residence with multiple bedrooms rented
24
out separately. And, when the officers saw McCloud dart inside the house and turn off
the porch light, they could reasonably suspect he wanted to give the impression no one
was home while warning the inhabitants (who could be dangerous) of the presence of law
enforcement. Then, when it became apparent McCloud was not among those playing
dominoes or otherwise accounted for, the officers could at that point reasonably suspect
he had run inside to arm himself and hide.
In short, the police arrived at the residence looking for probationer R.F. but what
they instead found was a house full of at least six people, one of whom had already
exhibited suspicious behavior. Based on McCloud’s furtive actions, the number of
people in the house, and the neighborhood in which the house was located, we conclude
the police were justified in worrying there could be others hiding or posing a danger to
their safety. As a result, the officers could not feel safe in diverting their attention to a
detailed probation search without first determining how many people were inside the
home. (Ledesma, supra, 106 Cal.App.4th at p. 864 [it is reasonable to conduct a
protective sweep before examining the “nooks and crannies” of a probationer’s living
quarters when in adversary territory].)
Acknowledging that California appellate courts have extended protective sweeps
based on reasonable suspicion to probation searches, McCloud argues the rule is
nevertheless a dubious one because the California Supreme Court declined to reach the
issue in Celis. McCloud is wrong; the protective sweep issue in Celis had nothing to do
with a probation search. Rather, the court assumed without deciding that the lower
25
reasonable suspicion standard—as opposed to the higher probable cause standard—
applied when police conducted a protective sweep of a home after detaining, rather than
arresting, a suspect outside the home. (Celis, supra, 33 Cal.4th at pp. 678-680
[concluding the facts failed to satisfy even the reasonable suspicion standard].) Our high
court has not questioned Ledesma’s holding that the reasonable suspicion standard
applies to a protective sweep incident to a valid probation search, and Ledesma remains
good law. (See, e.g., People v. Werner, supra, 207 Cal.App.4th at p. 1206 [approving
and following Ledesma].)
Next, McCloud argues the sweep of his bedroom was unlawful because it occurred
after he and his cousin had already emerged and thus it was “clear that the bedroom did
not harbor any other potentially dangerous persons.” Not so. Just because two
individuals had complied with the officers’ orders, it was by no means certain there were
not others still hiding. The officers were justified in suspecting there could be more
people inside any of the rooms of the house, and the only way to be sure was to sweep
through them.
We conclude the drugs, paraphernalia, and cash found in plain view were not the
fruits of an unlawful search and the trial court was right not to exclude them from
evidence. The gun was found after McCloud gave the officers written consent to more
fully search his room, so it also was admissible. (People v. Panah (2005) 35 Cal.4th 395,
466 [valid consent is an exception to the warrant requirement].)
26
We now turn to the text messages on McCloud’s cell phone, which, he argues,
should have been suppressed because the officers did not have a warrant to search the
phone, as required under the United States Supreme Court’s 2014 Riley decision. (Riley,
supra, 573 U.S. at p. __ [134 S.Ct. at p. 2489] [holding officers must generally obtain a
warrant before searching data on a suspect’s cellular phone, even when the phone is
seized incident to arrest].) Had the search of McCloud’s cell phone occurred after the
Supreme Court decided Riley, we would agree. However, People v. Diaz (2011) 51
Cal.4th 84 (Diaz), which held a cell phone “immediately associated” with an arrestee
could be searched incident to arrest, was binding appellate precedent at the time of the
search, and the officers in good faith relied on it.
The good faith exception to the exclusionary rule applies to “searches conducted
in objectively reasonable reliance on binding appellate precedent.” (Davis v. U.S. (2011)
564 U.S. 229, 232.) The rationale behind this exception is that when police “conduct a
search in compliance with binding precedent that is later overruled,” suppression “do[es]
nothing to deter police misconduct” and “come[s] at a high cost to both the truth and the
public safety.” (Ibid.) Stated differently, “the law enforcement officer may not be
penalized for the appellate judges’ error.” (People v. Youn (2014) 229 Cal.App.4th 571,
579.)
The California Supreme Court recently considered the applicability of the good
faith exception in this specific context in Macabeo, where an officer found images of
underage girls in defendant’s cell phone after detaining him for bicycling through a stop
27
sign—an infraction that could not support an arrest. (Macabeo, supra, 1 Cal.5th at
pp. 1210-1212.) Our high court acknowledged the phone search could not be justified as
“incident to arrest” under Riley. (Macabeo, at p. 1216.) But it also concluded the search
would not have been justified under Diaz either, as a reasonably well-trained officer
would know California law prohibited arrest for the cycling infraction. (Macabeo, at
pp. 1223-1224.) Because the search did not satisfy the binding appellate precedent at the
time, the court refused to apply the good faith exception. (Id. at pp. 1223-1226.)
Here, in contrast, the search of McCloud’s phone did satisfy Diaz. The phone was
immediately associated with McCloud because it lay on the floor near him and his
bedroom, and the search occurred after the police had probable cause to arrest him based
on the contraband in his bedroom.
McCloud argues the good faith exception does not apply to warrantless cell phone
searches as a matter of law because the Supreme Court did not apply the exception to
justify the search in Riley. McCloud reads too much into this fact. We do not know why
the Supreme Court did not discuss the good faith exception in Riley, perhaps the parties
simply did not raise it. In any event, neither the United States Supreme Court nor the
California Supreme Court has held the good faith exception can never apply to
warrantless cell phone searches. Our high court had occasion to make that categorical
ruling in Macabeo, but did not. Instead, it analyzed the search under the good faith
exception and held the search did not qualify on the merits. (Macabeo, supra, 1 Cal.5th
28
at pp. 1223-1226.) We engage in the same analysis here and conclude the search does
qualify.
We also reject McCloud’s contention the good faith exception does not apply
because the prosecution presented no evidence the officers considered or even knew of
Diaz at the time of the search. McCloud incorrectly assumes the good-faith standard is
subjective. “[O]ur good-faith inquiry is confined to the objectively ascertainable question
whether a reasonably well trained officer would have known that the search was illegal.”
(Macabeo, supra, 1 Cal.5th at p. 1222.) Here, we have no trouble concluding a
reasonably well-trained officer would be aware of an important California Supreme Court
decision on searches incident to arrest.
C. The Clerical Error in the Super Strike Allegations
McCloud argues the trial court violated his due process rights by permitting the
prosecution to amend the most current accusatory pleading to allege different prior
offenses after the jury had returned its verdict and been discharged. McCloud
mischaracterizes the record. In actuality, the trial court simply allowed the prosecution to
correct an obvious clerical error.
In the most current information, the prosecution inadvertently cited Penal Code
section 245, subdivision (a)(3) (assault with a machine gun on any person) as the prior
super strike offense instead of Penal Code section 245, subdivision (d)(3) (assault with a
machine gun on a peace officer). Despite the citation error, the information correctly
described the offense as assault with a machine gun on an officer. Additionally, the
29
earlier accusatory pleadings had cited the correct statutory subdivision. Defense counsel
agreed the error was clerical and admitted he was aware of it before trial. On this record,
McCloud’s claim of due process violation is meritless.
1. Additional background
The prosecution filed the initial complaint for the September 2012 incident in
November 2012, and in it alleged McCloud had suffered two prior strike convictions for
assault with a machine gun on a peace officer in violation of Penal Code section 245,
subdivision (d)(3). A few months later, the prosecution filed a complaint for the February
2013 incident, which alleged three prior strike convictions for assault with a machine gun
on a peace officer in violation of Penal Code section 245, subdivision (d)(3). After the
two cases were consolidated, the prosecution filed an amended information changing the
date of the three prior strike assault convictions from June 1994 to May 1994.3 The
amended information also cited Penal Code section 245, subdivision (d)(3) as the offense.
About two years later and just before trial, the prosecution filed a second amended
information in the consolidated case. This time, the prosecution mistakenly cited to
Penal Code section 245, subdivision (a)(3) for the three prior strikes. However, the
description of the offense remained the same as in the prior pleadings—assault with a
machine gun on an officer.
McCloud waived his right to trial on the alleged priors and, after the jury rendered
its verdict, he admitted the prior allegations as alleged in the second amended
3 The assaults arose from one incident involving three officers.
30
information. For his three prior assault convictions, he admitted he was “convicted of the
crime of assault with a machine gun on an officer, in violation of section 245, subdivision
(a), subsection (3) of the Penal Code.” (Italics added.) In other words, he admitted to the
correct offense with the incorrect Penal Code subdivision.
At the sentencing hearing, the prosecution informed the court it had made a
clerical error in the second amended information and asked for permission to correct it.
Defense counsel opposed correction because it would change the prior strikes (for
machine gun assault on any person) to super strikes (for machine gun assault on a peace
officer), thereby increasing McCloud’s exposure from a 15-year determinate term to 25
years to life.4 He added, “I knew this wasn’t properly filed. [But it’s] not my duty to
inform the DA’s office when they make a mistake like that to benefit my client.” The
court asked the parties to brief the issue and continued sentencing.
At the hearing on the prosecution’s written motion, defense counsel explained he
had not filed opposition papers because the motion was “on good grounds,” adding,
“There really isn’t anything I can do in terms of opposing it.” However, he believed
correcting the clerical error would violate McCloud’s due process because, even though
he “knew [the filing] was wrong,” he “may have” changed his trial strategy for the 2012
incident had the prosecution cited the correct statutory subdivision. Specifically, he
4 Assault with a machine gun on a peace officer constitutes a serious and/or
violent felony—what is commonly referred to as a “super strike.” (Pen. Code, § 1170.12,
subd. (c)(2)(C)(iv).) Under Penal Code section 1170.12, subdivision (c)(2)(A), a
defendant who has suffered more than two super strikes is subject to an alternative
sentence of 25 years to life.
31
might have transferred his focus from establishing the gun did not belong to McCloud to
establishing the drugs did not belong to him.
The court granted the prosecutor’s motion. It rejected the due process argument
and found McCloud and his counsel had been on notice of the alleged prior assaults by
virtue of the language describing the offenses as well as the previous pleadings citing the
correct statutory subdivision. The court vacated McCloud’s admissions on his priors and
allowed the People to present evidence of his prior assaults to “clarify the record.” The
prosecution introduced the abstract of judgment reflecting McCloud had pled guilty to
three counts of assault with a machine gun on a peace officer May 4, 1994 in violation of
Penal Code section 245, subdivision (d)(3), and the court found the allegations true.
2. Discussion
Due process requires a defendant receive notice of the charges against him and the
opportunity to defend against them. (People v. Jones (1990) 51 Cal.3d 294, 317.) Penal
Code section 1170.1, subdivision (e) states “[a]ll enhancements shall be alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact.” (Italics added.) Penal Code section 952 provides, “[i]n charging
an offense, each count shall contain, and shall be sufficient if it contains in substance, a
statement that the accused has committed some public offense therein specified. Such
statement . . . may be in the words of the enactment describing the offense or declaring
the matter to be a public offense, or in any words sufficient to give the accused notice of
the offense of which he is accused.” (Italics added.)
32
The accusatory pleading “need not specify by number the statute under which the
accused is being charged.” (People v. Thomas (1987) 43 Cal.3d 818, 826.) “More
importantly, ‘even a reference to the wrong statute has been viewed of no consequence
under the circumstances there appearing.’” (Ibid., citing People v. Schueren (1973) 10
Cal.3d 553, 558.) In other words, it is the factual allegations of a pleading that determine
what offenses or enhancements have been charged, not the statute number. (People v.
Shoaff (1993) 16 Cal.App.4th 1112, 1118, citing People v. Hernandez (1988) 46 Cal.3d
194, 208.)
In People v. Siegel (1961) 198 Cal.App.2d 676, the defendant was charged with
“attempted escape” under Penal Code section 664—the general attempt section—instead
of under Penal Code section 4532, subdivision (b)—which more specifically sets forth
the crime of attempted escape and provides specific punishments. On appeal, the
defendant argued the prosecution’s failure to specify the correct statutory section was
fatal and required reversal. The Siegel court found “[t]he mistake in the number of the
[Penal Code] section . . . unimportant.” (People v. Siegel, at pp. 683-684.) The
defendant suffered no prejudice because the pleading’s “charging language . . . is exactly
that which would support a charge under [Penal Code] section 4532, subdivision (b),”
and as a result, he “was fully apprised of the offense of which he was being tried.” (Id. at
pp. 683-684.)
Similarly, in People v. Rivers (1961) 188 Cal.App.2d 189, the defendant was
charged with sale of narcotics, but the accusatory pleading set forth the wrong Health and
33
Safety Code section. The court concluded the error was harmless because “[t]he purpose
of the requirement of certainty in an indictment or information is to apprise the accused
of the charges against him so that he may adequately prepare for his defense” and it was
“clear from the language of the information . . . that the defendant knew he was being
charged with the sale of narcotics.” (Id. at p. 195.) In short, “the defect was merely one
of artificiality rather than substance.” (Ibid.)
Under this clear authority, McCloud’s due process argument cannot stand. The
pleading defect here is even more inconsequential than those in Siegel and Rivers. Not
only did the pleading language put McCloud on notice he would have to defend against
allegations of prior convictions for assault with a machine gun on peace officers, but also
the prior pleadings cited the correct statutory subdivision for those convictions.
McCloud was equipped with everything he needed to discern the charges against him—
he had both the language of the offense (from the current pleading) and the correct
statutory subdivision (from the previous pleadings). The former alone would have been
enough to satisfy due process.
McCloud renews the argument that his counsel would have pursued a different
trial strategy had the prosecution not made the error. We are unmoved. The statutes and
case law are clear that the description of the offense controls, not the statute number. As
a result, counsel’s decision to base trial strategy on a statutory citation he knew to be
erroneous was a gamble he took at his own risk.
34
Finally, McCloud is incorrect that this case is at odds with People v. Tindall
(2000) 24 Cal.4th 767, where the court held the prosecution cannot amend the accusatory
pleading to add previously unalleged prior convictions once the jury has been discharged.
(Id. at p. 782.) Unlike in Tindall, the prosecution here did not attempt to allege new prior
convictions, thereby surprising McCloud and depriving him of the right to elect to have
the same jury decide his charges and priors. (Id. at p. 770 [acknowledging Pen. Code,
§ 1025 gives criminal defendants the right to have the same jury decide charges and prior
allegations].) This was a case of a minor pleading defect, not an eleventh-hour
augmentation.
III
DISPOSITION
We reverse the judgment as to transportation for sale and affirm in all other
respects. We remand the case to the trial court for resentencing or retrial on
transportation for sale at the option of the prosecuting attorney. (See Mil, supra, 53
Cal.4th at pp. 419-420.)
CERTIFIED FOR PARTIAL PUBLICATION
SLOUGH
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
35