People v. Covarrubias

202 Cal. App. 4th 1, 134 Cal. Rptr. 3d 455, 2011 Cal. App. LEXIS 1587
CourtCalifornia Court of Appeal
DecidedDecember 20, 2011
DocketNo. D058298
StatusPublished
Cited by40 cases

This text of 202 Cal. App. 4th 1 (People v. Covarrubias) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Covarrubias, 202 Cal. App. 4th 1, 134 Cal. Rptr. 3d 455, 2011 Cal. App. LEXIS 1587 (Cal. Ct. App. 2011).

Opinion

Opinion

AARON, J.

I.

INTRODUCTION

Authorities at the San Ysidro port of entry, at the border between Mexico and the United States, discovered approximately 193 pounds of marijuana hidden in a truck that Feliciano Covarrubias was driving. A jury found Covarrubias guilty of possession of marijuana for sale (Health & Saf. Code, § 11359) (count 1) and transporting more than 28.5 grams of marijuana into California (Health & Saf. Code, § 11360, subd. (a)) (count 2). With respect to count 2, the jury also found true an allegation that the marijuana was not for [4]*4personal use (Pen. Code, § 1210, subd. (a)). The trial court placed Covarrubias on formal probation for three years, subject to various conditions, including that he serve 240 days in jail.

On appeal, Covarrubias contends that the trial court erred in admitting the expert testimony of Immigration and Customs Enforcement Special Agent Andrew Flood. Agent Flood testified concerning the structure and practices of drug trafficking organizations, among other issues. We agree that the court erred in admitting Agent Flood’s testimony concerning the structure and practices of drug trafficking organizations, but conclude that any error in admitting this testimony was harmless. Accordingly, we affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial proceedings concerning Agent Flood’s testimony

During a pretrial hearing, defense counsel indicated that the People had provided her with Agent Flood’s curriculum vitae, and that it appeared to defense counsel that the People intended to have Agent Flood testify as an expert witness “as to drug trafficking issues.” Defense counsel orally moved to exclude “profile evidence and other evidence associated with drug trafficking organizations,” arguing that the evidence was irrelevant because Covarrubias was not being charged with “being a drug courier,” and that the evidence was more prejudicial than probative. Counsel requested that Agent Flood not be permitted to testify “to things such as the structure of . . . drug organizations and how Mr. Covarrubias and his conduct may have played into that structure.”

The prosecutor responded by clarifying that she intended to have Agent Flood testify as to “how these organizations work and why they would use a mule[1] to traffic the drugs across the border.” The prosecutor contended that the evidence was “highly relevant.” After hearing argument from both counsel, the trial court requested that the parties submit written briefing on the issue.

In response to the court’s request, Covarrubias filed a motion in limine to exclude “profile/modus operand! evidence and testimony.” In his motion, Covarrubias argued that expert testimony offered to establish that a defendant fits a certain criminal profile is inadmissible. Covarrubias also argued that [5]*5testimony concerning the structure of drug trafficking organizations is inadmissible to establish a defendant’s knowledge of the presence of drugs in his possession. Covarrubias argued that case law permitting “modus operandi” testimony regarding specific techniques that drug couriers use to smuggle drugs was distinguishable because here there was no evidentiary foundation for such testimony. Specifically, Covarrubias argued that the trial court should preclude Agent Flood from testifying that drug trafficking organizations do not entrust large quantities of drugs to people who are unaware that they are transporting such drugs. Covarrubias contended that the court should not permit Agent Flood to testify as to the value of the drugs seized because such testimony was inflammatory. Finally, Covarrubias argued that testimony as to the value of the marijuana seized was irrelevant because it relied on a “double inference: (first inference) that [Covarrubias] knew [h]e was carrying drugs because; (second inference) drug dealers would not entrust drugs to unknowing individuals.”2

The People filed a brief in which they maintained that the trial court should admit expert testimony concerning “drag trafficking organizations and how they work” at trial. The People argued: “Here, ... the People do not intend to introduce any testimony that defendant meets the profile of a drug carrier or drug mule. The expert will not be testifying about the facts of this particular case. Rather, the expert will testify about marijuana and about drug smuggling in general. The expert will testify to the value of marijuana. The expert will also testify that drug trafficking organizations will pick couriers who they trust. The expert will testify that the organizations are dependent on drivers to get the drugs to their desired destination.” The People argued that such testimony was relevant to disprove Covarrubias’s anticipated defense that he did not know that there was marijuana in his truck.

The trial court held a hearing pursuant to Evidence Code section 4023 to consider the admissibility of Agent Flood’s testimony. At the hearing, Agent Flood testified about his prior law enforcement experience and training, including his experience conducting narcotics and gang investigations. Agent Flood discussed the various ways in which drugs are packaged for smuggling and stated that many different types of vehicles may be used in smuggling operations. Agent Flood also stated that law enforcement officials were less likely to detect marijuana being transported across the San Ysidro border crossing at times when traffic is lighter, and that the middle of the night was not a high traffic time.

[6]*6Agent Flood also discussed the quantity of marijuana that a person might possess for personal consumption and indicated that more than an ounce of marijuana is considered to be a distributable quantity. Agent Flood also discussed the price of marijuana and various factors that affect price, including quality, location, and quantity. Agent Flood testified that the retail value of 193 pounds of marijuana in San Diego was approximately $185,000.

Agent Flood described the various roles that individuals in drug trafficking organizations perform, including growing marijuana, finding vehicles to transport marijuana, building compartments in vehicles to hide the marijuana, recruiting drivers to transport the marijuana, transporting marijuana, distributing marijuana to street level dealers, and selling it on the streets. Agent Flood explained that a “mule” is a person who transports drugs on behalf of the drug trafficking organization. The organization uses recruiters to find mules who are willing to transport drugs for money. Agent Flood stated that drug trafficking organizations often provide vehicles to mules for transporting drugs, but also said that it is common for the vehicle to be registered in the mule’s own name, and that a border inspector will often ask more questions of a person who is driving a vehicle that is not registered in his or her own name.4 Agent Flood explained that drug trafficking organizations also will perform “dry runs” in which a vehicle that the smugglers intend to use at a later time to transport drugs across the border will be driven across the border with no drugs hidden in it, in order to practice the operation and to establish a history of border crossings with a driver and a particular vehicle.

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Cite This Page — Counsel Stack

Bluebook (online)
202 Cal. App. 4th 1, 134 Cal. Rptr. 3d 455, 2011 Cal. App. LEXIS 1587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-covarrubias-calctapp-2011.