Filed 8/28/14 P. v. Pina CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039455
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. Nos. F23107, F23036)

         v.

JAVIER PINA,

         Defendant and Appellant.


In re JAVIER PINA,                                                   H040448

         on Habeas Corpus.


         Defendant Javier Pina appeals from a conviction for possession of
methamphetamine for sale (Health & Saf. Code, § 11378). Pina advances four arguments
on appeal. First, he contends witness testimony suggesting he previously had been in jail
incurably prejudiced his due process right to a fair trial. Second, he maintains the
prosecutor committed prejudicial misconduct in his closing argument by misstating the
reasonable doubt standard. Third, Pina argues the trial court prejudicially erred by
finding three prior prison term enhancement allegations true. Finally, Pina requests that
we review the sealed portion of the affidavit underlying the search warrant authorizing
the search of his person to determine whether the affidavit was properly sealed and
whether the warrant properly issued.
       Pina also filed a petition for a writ of habeas corpus, which we have ordered
considered together with his appeal. In that petition, he asserts that his trial counsel
rendered ineffective assistance by (1) failing to move for a mistrial and advance a due
process argument based on the testimony as to his prior criminality and (2) not objecting
to the prosecutor’s statement in closing argument regarding the reasonable doubt
standard.
       Because the record does not contain all of the documents necessary for meaningful
appellate review of the fourth issued raised on appeal--the propriety of the search warrant
and the order to keep a portion of it under seal--we reverse and remand the matter. On
remand, the trial court is directed to conduct and properly transcribe an in camera hearing
with respect to Pina’s motion. If, after those proceedings, the trial court again denies
Pina’s motion to quash and unseal, it shall reinstate the judgment. If the judgment is
reinstated, Pina may again challenge on appeal the trial court’s denial of the motion, as
the record will then be adequate to provide for the appellate review we are unable to
conduct in the present appeal. The petition for a writ of habeas corpus is denied.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.       Search Warrant
       Santa Cruz Police Officer William Azua, Jr., requested a warrant authorizing the
search of (1) Pina’s person and (2) the premises at 304 3rd Street in Santa Cruz. The
search warrant was supported by Azua’s affidavit, which Azua requested be sealed to
protect the identity of an informant. On June 14, 2012, a superior court judge issued the
search warrant and signed an order sealing Azua’s affidavit.
       B.       Pina’s Arrest
       On June 21, 2012, eight Santa Cruz police officers were surveilling room 117 at a
motel on Ocean Street in Santa Cruz. Santa Cruz Police Officer Alex Martin, an agent
with the Santa Cruz County Narcotics Task Force, was the case officer in charge of the
surveillance.
                                              2
       At about 1:00 p.m., Pina and a woman named Lisa Mercuri exited room 117. Pina
was wearing a backpack and carrying a cell phone. At Agent Martin’s direction, two
uniformed officers stopped Pina and handcuffed him. Agent Martin approached Pina and
the officers and told Pina why he was being detained. Agent Martin removed Pina’s
wallet from his pocket and searched it, finding Pina’s identification and a small amount
of money. Agent Martin also searched Pina’s backpack, which contained newly
purchased T-shirts, underwear, socks, and toiletries. In one of the pairs of socks, Agent
Martin found seven small plastic baggies of crystal powder that he suspected to be
methamphetamine.
       Agent Martin tested a sample of the powder from one of the baggies and the test
indicated the substance was crystal methamphetamine. In another pocket of the backpack
Agent Martin found about two dozen empty plastic baggies of the same size as those
containing the powder. A dozen of those empty bags had a black design on them.
       For approximately an hour while Pina was detained Agent Martin had Pina’s cell
phone. The phone, which Agent Martin described as a “high end” smartphone, received
about 10 calls or texts during that time.
       Officers then searched room 117, which was registered to Mercuri. Inside the
room, officers found a duffle bag containing women’s toiletries and two small baggies of
suspected methamphetamine. Mercuri told officers the duffle bag and baggies were hers.
Officers also found an electronic pocket scale in the room. Nothing belonging to Pina
was found in the room.
       C.     The Third Amended Information
       On January 8, 2013, Pina was charged by a third amended information with
possession of methamphetamine for sale (Health & Saf. Code, § 11378). The
information alleged one prior strike conviction within the meaning of Penal Code section




                                             3
667, subdivisions (b) through (i),1 and three prior prison terms within the meaning of
section 667.5, subdivision (b).
       D.       Pretrial Motions
       Pina successfully moved to bifurcate the trial on the prior strike conviction and
prior prison terms. He also moved to quash the search warrant that authorized the June
21, 2012, search of his person and to unseal the supporting affidavit. Following an in
camera hearing, the trial court ordered portions of the affidavit unsealed but denied the
motion to quash.
       E.       Jury Trial and Guilty Verdict
       A jury trial on the drug charge was held on January 9 and 10, 2013.
       Agent Martin testified as an expert in the fields of narcotics enforcement and the
possession of methamphetamine for sale. Agent Martin testified to the events of June 21,
2012, as described above. He testified that he found approximately 17 grams of
methamphetamine in Pina’s backpack.
       Agent Martin opined that the methamphetamine was for distribution and not
personal use for several reasons. First, he stated that 17 grams, while “not an extremely
large amount,” was more than a user would possess. According to Agent Martin, 17
grams of methamphetamine amounts to “over 85 doses” and was worth about $1,400.
Even for a user who is high on methamphetamine for several days without sleeping--
something known as “going on a run”--“three or four grams over several days is a lot,”
said Agent Martin. Second, Agent Martin testified that the manner in which Pina’s
methamphetamine was packaged indicated it was for sale. Specifically, each baggie
contained a similar amount of drugs. Third, Agent Martin stated that the empty plastic
baggies in Pina’s backpack were of the type typically used to break down larger amounts
of methamphetamine into single doses for sale. According to Agent Martin, designs like

       1
           Further unspecified statutory references are to the Penal Code.

                                                4
those found on some of Pina’s baggies are used by drug dealers to indicate the amount of
methamphetamine in the baggie. Fourth, drug trafficking is common in the area in which
Pina was stopped. Finally, Agent Martin opined that cell phones are commonly used by
drug dealers.
       On January 10, 2013, the jury convicted Pina of possession of methamphetamine
for sale (Health & Saf. Code, § 11378).
       F.       Bench Trial on Priors
       The court held the bifurcated bench trial on the prior strike and three prior prison
term allegations on January 14, 2013. With respect to the section 667.5, subdivision (b)
prior prison terms, defense counsel argued that the evidence showed only two prior
prison terms because two of the sentences relied on by the People were served in a single,
continuous period of incarceration. The prosecutor disagreed. The court found that there
was a prior strike conviction as well as three prior prison commitments.
       G.       Sentencing
       The court sentenced Pina on March 25, 2013. At sentencing, the prosecutor
represented that--contrary to his argument at the bench trial--“only two valid [section]
667.5[, subdivision] (b) priors exist for the Court to sentence defendant on.” The trial
court sentenced Pina to a total term of four years eight months. His sentence consisted of
the low term of 16 months for the possession of methamphetamine for sale conviction,
which was doubled as a result of the prior strike conviction, for a term of 32 months.
Consistent with the prosecutor’s representation, the court imposed two prior prison term
enhancements of one year each and struck the third prior prison term allegation.
       Pina timely appealed.
II.    DISCUSSION
       A.       Due Process
       At trial, Agent Martin testified that he found “jail release papers” in Pina’s
backpack. Defense counsel moved to strike the testimony under Evidence Code section
                                              5
352 and the court granted that motion. The court also immediately admonished the jury
not to use or consider the stricken testimony for any purpose. On appeal, Pina contends
the reference to “jail release papers” deprived him of his due process right to a fair trial
because knowledge of his criminal record made a guilty verdict more likely.
              1.      The Due Process Challenge is Forfeited
       The People maintain Pina forfeited his due process challenge by failing to assert it
at trial. Pina argues his Evidence Code section 352 objection was sufficient to preserve
the due process argument.
       New constitutional arguments are not forfeited on appeal where they “do not
invoke facts or legal standards different from those the trial court itself was asked to
apply, but merely assert that the trial court’s act or omission, insofar as it was wrong for
the reasons actually presented to that court, had the additional legal consequence of
violating the federal Constitution.” (People v. Avila (2006) 38 Cal.4th 491, 527, fn. 22.)
So long as “the trial objection fairly informs the court of the analysis it is asked to
undertake,” the objecting party need not “inform the court that it believes error in
overruling the actual objection would violate due process.” (People v. Partida (2005) 37
Cal.4th 428, 437 (Partida).)
       Here, Pina moved to strike Agent Martin’s reference to “jail release papers” on the
ground it was more prejudicial than probative under Evidence Code section 352.
Significantly, the court agreed and did precisely as Pina asked--it struck the testimony
and admonished the jury not to consider it. For the first time on appeal, Pina takes the
position that the prejudicial effect of Agent Martin’s testimony was not cured by striking
it and admonishing the jury to disregard it. In other words, he contends the resulting
prejudice was incurable. But the question of incurable prejudice was not before the trial
court, and consequently Pina’s argument on appeal is waived. (Partida, supra, 37
Cal.4th at p. 435 [“A party cannot argue the court erred in failing to conduct an analysis it
was not asked to conduct.”].)
                                               6
          The different purposes served by motions to strike and motions for a mistrial
confirm that Pina waived his current argument. “[A] motion to strike presupposes error
of some sort” but allows “the trial . . . [to] go on to a conclusion.” (People v. Woodberry
(1970) 10 Cal.App.3d 695, 708.) By contrast, a “motion for mistrial presupposes error
plus incurable prejudice” and requires that the trial be “terminated.” (Ibid.) By not
seeking a mistrial, Pina forfeited the argument that Agent Martin’s testimony caused
incurable prejudice.
          2.    The Due Process Challenge Fails on the Merits
          Even if Pina had preserved the due process argument, we would reject it on the
merits.
          The erroneous admission of evidence violates due process where the evidence is
so prejudicial it renders the trial fundamentally unfair. (Partida, supra, 37 Cal.4th at p.
439.) “There is little doubt exposing a jury to a defendant’s prior criminality presents the
possibility of prejudicing a defendant’s case and rendering suspect the outcome of the
trial.” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580, italics added.) And “a
witness’s volunteered statement”--like Agent Martin’s here--“can . . . provide the basis
for a finding of incurable prejudice.” (Id. at p. 1581.) However, we conclude the single,
fleeting reference to jail release papers was not incurably prejudicial. Defense counsel
promptly objected and the court immediately struck the testimony and instructed the jury
to disregard it. And the jury instructions included CALCRIM No. 104, which again
ordered the jurors to disregard any testimony stricken from the record. We presume the
jury followed both the court’s admonition (People v. Wash (1993) 6 Cal.4th 215, 263)
and the instruction. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
          Exceptional circumstances are needed to overcome that presumption. (NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1224.) Whether
exceptional circumstances exist “depends upon the facts in each case.” (People v. Allen
(1978) 77 Cal.App.3d 924, 935.) Such circumstances have been found in close cases in
                                               7
which the defendant’s credibility was fundamental to his defense. For example, Allen
was “an extremely close case in which the jury had to make its fact determination based
upon the credibility of the [defendant] and his witnesses and on the credibility of the
prosecution’s witnesses.” (Ibid.) Under those circumstances, an admonition to disregard
testimony that defendant was “on parole” was held to be insufficient to overcome the
substantial danger of undue prejudice the testimony caused. (Id. at p. 938.) Similarly, in
People v. Ozuna (1963) 213 Cal.App.2d 338, the court of appeal concluded an
admonition to the jury could not remove the prejudicial effect of testimony referring to
the defendant as an “ex-convict.” Ozuna also was a close case. The defendant was
charged with his girlfriend’s murder. (Id. at p. 339.) He was the only eyewitness, and he
told the police the gun had fired accidentally. (Id. at p. 340.) His first trial ended in a
mistrial after the jury was unable to agree on a verdict. (Id. at p. 339.)
       Defendant maintains this case, like Allen and Ozuna, was a “close” one in terms of
whether he possessed the methamphetamine for sale or personal use. He contends the
jury could have concluded that he had simply stocked up for personal use during a recent
buy, a theory he claims finds support in Agent Martin’s testimony about drug users
“going on a run.” We are not persuaded. Pina possessed approximately 17 grams (or 85
doses) of methamphetamine worth about $1,400, as well as baggies of the type drug
dealers often use to sell smaller amounts of the drug. That evidence points strongly in the
direction of sale, not personal use. Nor does Agent Martin’s discussion of drug users
“going on a run” support a personal use theory. Agent Martin testified that “three or four
grams over several days is a lot,” even for a user who is high on methamphetamine for
several days without sleeping while “going on a run.” Pina was found with four times
that amount of methamphetamine.




                                               8
        In short, this case was not close like Allen or Ozuna, and no other exceptional
circumstances exist to overcome the presumption that jurors followed the court’s
admonition and the instruction to disregard the “jail release papers” statement.2
Accordingly, we reject Pina’s claim that the testimony incurably prejudiced his right to a
fair trial.
        B.     Prosecutorial Misconduct
        In his closing argument, the prosecutor told the jury “reasonable doubt is . . . the
same thing as common sense. Now you’re going to read the instruction but this is my
interpretation of it. It’s common sense.” Pina urges that by equating reasonable doubt
and common sense, the prosecutor lowered the People’s burden of proof, thereby
violating his Fifth and Fourteenth Amendment due process rights.
        Pina acknowledges that he did not object to the prosecutor’s statement at trial, but
argues that there is no waiver because an objection would have been futile under existing
California law. “Reviewing courts have traditionally excused parties for failing to raise
an issue at trial where an objection would have been futile or wholly unsupported by
substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) But this
case does not involve a situation in which an objection to the claimed misconduct would
have been futile under then-existent law but is now meritorious due to a change in the
law. Instead, Pina claims that existing law forecloses his objection. Pina points to an
opinion the California Supreme Court issued denying review of People v. Bickerstaff


        2
          Pina also relies on People v. Figuieredo (1955) 130 Cal.App.2d 498, in which
the court held that an officer’s testimony that the defendant had been incarcerated in San
Quentin deprived him of a fair trial. Like Allen and Ozuna, Figuieredo is distinguishable.
There, the deputy district attorney intentionally elicited the testimony about San Quentin
despite having assured defendant that if he admitted his prior convictions and did not
testify those priors would never be known by the jury. (Id. at p. 506.) There is no
suggestion of intentional prosecutorial misconduct in connection with Agent Martin’s
reference to jail release papers.

                                               9
(1920) 46 Cal.App. 764. In Bickerstaff, the appellate court held it was error to instruct
the jury that reasonable doubt was “a fair doubt, based upon the testimony, reason and
common sense.” (Id. at p. 772.) In denying review, the California Supreme Court
disapproved of that portion of the court of appeals’ analysis. Noting that the trial court’s
reasonable doubt instruction was similar to one it had twice approved, the Supreme Court
stated the instruction “should not be considered erroneous, although it is not as full and
possibly not as clear as the instruction usually given.” (Id. at p. 775 [Supreme Court’s
opinion on denial of hearing].)
       As the People point out, to the extent Pina is correct about the state of the law, we
can reach the merits of his claim (for an objection would have been futile) but are bound
to reject it (because binding Supreme Court precedent holds the statement was accurate).
We need not decide whether California law permits a prosecutor to equate common sense
with reasonable doubt because we conclude any error was harmless. (People v. Nguyen
(1995) 40 Cal.App.4th 28, 35 [“To establish prosecutorial misconduct . . . it is necessary
to show the right to a fair trial was prejudiced.”].) The trial court instructed the jury as to
the reasonable doubt standard, the prosecution’s burden of proof based on it, and to
ignore any contrary argument.3 “We must presume the jury followed [those]
instruction[s] [such] that [any] error was thereby rendered harmless.” (Id. at p. 37.)
       C.     Prior Prison Term Enhancement Allegations
       Section 667.5, subdivision (b) requires the trial court to enhance the sentence of a
defendant convicted of a felony by one year for “each prior separate prison term . . .
[served] for any felony.” Subdivision (g) of section 667.5 defines a separate prison term
as “a continuous completed period of prison incarceration imposed for the particular

       3
         Specifically, the trial court instructed the jury with CALCRIM No. 220
(reasonable doubt), CALCRIM No. 103 (the presumption of innocence and the People’s
burden of proof), and CALCRIM No. 200 (“If you believe that the attorneys’ comments
on the law conflict with my instructions, you must follow my instructions”).

                                              10
offense alone or in combination with concurrent or consecutive sentences for other
crimes . . . .” Accordingly, “a defendant who has served concurrent or consecutive prison
sentences on various commitments is deemed to have served only one prior prison term
for the purpose of the enhancement provisions of Penal Code section 667.5.” (People v.
James (1980) 102 Cal.App.3d 728, 733.)
       The information alleged Pina had served three prior prison terms for purposes of
section 667.5. At the bench trial on those allegations, defense counsel argued that the
evidence showed only two prior prison terms because two of the sentences relied on by
the People were served in one continuous period of incarceration. While the People now
concede defense counsel was correct, the prosecutor disagreed at the time. The trial court
found all three prior prison term enhancement allegations to be true.
       At sentencing, the prosecutor acknowledged that “only two valid [section] 667.5[,
subdivision] (b) priors exist for the Court to sentence defendant on.” Accordingly, the
trial court imposed only two prior prison term enhancements of one year each and issued
a minute order dated March 25, 2013, stating “[a]llegation of prior felony
conviction(s)/prison term(s) No. 03 is stricken.”
       Based on the sentence and the March 2013 minute order, the People maintain there
is no error to correct. Pina disagrees, arguing that the court’s finding that all three prior
prison terms were true, made on January 14, 2013, must be stricken.
       Because the abstract of judgment and sentence reflect the court’s later, corrected
decision to strike the third prior prison term allegation, we agree with the People that
there is no error to correct.
       D.      Propriety of Search Warrant and Order Sealing Supporting Affidavit
       Section 1534, subdivision (a), provides that the contents of a search warrant,
including the supporting affidavit setting forth the facts establishing probable cause for
the search, become a public record once the warrant is executed and returned. However,
in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), the California Supreme Court held that
                                              11
if certain procedures are followed to preserve the defendant’s right to challenge the
validity of a search warrant, some or all of the search warrant affidavit may be sealed to
protect the identify of a confidential informant. (Id. at pp. 955, 971-975.) On a properly
noticed motion by a defendant to quash or traverse the warrant, the trial court “should
conduct an in camera hearing.” (Id. at p. 972.) At the hearing, the court is to determine
(1) whether the affidavit has been properly sealed (id. at pp. 972-973); and (2) whether,
under the totality of the circumstances presented in the entire affidavit and any testimony
presented to the court, there was a fair probability that contraband or evidence of a crime
would be found in the place searched pursuant to the warrant. (Id. 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., italics added.)
       Here, following an in camera hearing and review of the sealed affidavit, the trial
court unsealed only portions of the affidavit and denied Pina’s motion to quash the search
warrant. Pina requests that we review the portion of the affidavit that remains sealed and
the transcript of the in camera hearing to determine whether the affidavit remains
properly sealed and whether the search warrant properly issued.
       The transcript of the in camera hearing was not part of the original appellate
record. This court ordered the record on appeal augmented to include a reporter’s
transcript of the January 7, 2013 in camera hearing and directed the trial court to provide
a copy of that transcript. In response, we received a declaration from the court reporter
stating that on January 7, 2013, “no proceedings in [this] matter were reported other than
proceedings already transcribed per original notice.”
       As noted, Hobbs requires that “a sealed transcript of the in camera proceedings,
and any other sealed or excised materials, . . . be retained in the record . . . for possible
appellate review” (Hobbs, supra, 7 Cal.4th at p. 975), “[i]n all instances.” (Ibid., italics
added.) Without the transcript, we cannot conduct the “meaningful appellate review” to
                                               12
which Pina is entitled. (People v. Galland (2008) 45 Cal.4th 354, 370.) In Galland, the
California Supreme Court considered the proper course of action when the sealed warrant
affidavit is missing from the record. The court held that, in that circumstance, “the
proper procedure [is] to remand the case to the superior court with directions to hold a
hearing to reconstruct or settle the record as to the missing search warrant affidavit and
augment the record accordingly.” (Id. at p. 373.) Consistent with Galland, we remand
the case to the superior court to conduct and transcribe a new in camera hearing in full
compliance with Hobbs.
III.   WRIT PETITION
       In his petition for a writ of habeas corpus, Pina contends that his trial counsel’s
representation fell below the standards for effective assistance because his counsel failed
to (1) move for a mistrial and advance a due process claim based on the “jail release
papers” testimony and (2) object to the prosecutor’s statement in closing argument
equating reasonable doubt and common sense.
       To obtain writ relief based on ineffective assistance of counsel, a petitioner must
make a prima facie showing that counsel’s representation fell below an objective standard
of reasonableness under prevailing professional norms, and that counsel’s deficient
performance was prejudicial, i.e., that a reasonable probability exists that, but for
counsel’s failings, the result would have been more favorable to the defendant. (In re
Hardy (2007) 41 Cal.4th 977, 1018.) “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S.
668, 669 (Strickland).) “The likelihood of a different result must be substantial, not just
conceivable.” (Harrington v. Richter (2011) __ U.S. __ [2011 U.S. LEXIS 912] [131
S.Ct. 770, 792].) We “need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of


                                              13
lack of sufficient prejudice, . . . that course should be followed.” (Strickland, supra, at p.
697.)
        Pina has failed to establish that trial counsel’s alleged failings were prejudicial.
For the reasons discussed above, Agent Martin’s reference to jail release papers was
cured by the court’s admonition and instruction not to consider the testimony. Likewise,
the court’s jury instructions as to the reasonable doubt standard, the prosecution’s burden
of proof based on it, and to ignore any contrary argument rendered any prosecutorial
misconduct related to the reasonable doubt standard harmless. Accordingly, we reject
Pina’s ineffective assistance of counsel claims.
IV.     DISPOSITION
        The order denying Pina’s motion to quash the search warrant and unseal the
supporting affidavit is reversed. The judgment is reversed and the matter is remanded to
the trial court with directions to conduct an in camera hearing with respect to Pina’s
motion consistent with this opinion and with People v. Hobbs (1994) 7 Cal.4th 948, 971-
975. If the trial court again denies Pina’s motion to quash and unseal following the in
camera hearing, it shall reinstate the judgment.
        The petition for writ of habeas corpus is denied.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
