People v. Frando
| Decision Date | 27 May 2020 |
| Docket Number | D075481 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DANIEL FRANDO, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Daniel Frando was stopped while driving by border patrol agents conducting a roving patrol (or highway interdiction). After obtaining Frando's consent to search his vehicle, the agents discovered two suitcases containing cocaine. Frando was convicted of transporting over 20 kilograms of cocaine and sentenced to 18 years in prison. Frando appeals, contending (1) the trial court erroneously denied his motion to suppress evidence obtained as a result of his unlawful detention by border patrol agents, (2) his conviction is unsupported by substantial evidence, (3) expert testimony was erroneously admitted despite lack of proper foundation, and (4) the prosecutor committed prejudicial misconduct by misstating the law and the facts and by introducing matters outside the evidence during closing arguments. We find no merit to Frando's contentions and affirm the judgment.
Border Patrol Agent Oliver O. has patrolled the San Clemente station and immigration checkpoint for over seven years. His duties include inspecting that stretch of the I-5 freeway for behavior suggesting individuals are violating United States immigration laws or engaging in criminal activity. That stretch of freeway is known as a high-narcotics trafficking area, as it connects Mexico to the interior of the United States. While on roving patrol, Agent O. and his partner were in a marked border patrol vehicle parked just north of the checkpoint. His attention was drawn to Frando's vehicle because of the "nervous" behavior Frando displayed when he noticed the agents' marked vehicle. After he noticed the agents, Frando immediately placed his hands on the "ten and two" position of the steering wheel, with his arms "fully extended" and "stiffened." Frando's behavior was noteworthy because, in the officer's experience, it was similar to behavior he had witnessed in connection with previous narcotics arrests and drug seizures. Theagents pulled their marked vehicle onto the freeway to further observe Frando. Frando slowed his speed, and as soon as the agents pulled behind him, he changed lanes in a manner the agent perceived to be unsafe, squeezing himself between two cars where there was very little room and forcing the vehicle behind him to brake. The agents moved behind Frando, who repeatedly checked his mirrors to observe the border patrol vehicle, causing his vehicle to drift between lanes. The agents conducted a vehicle records check which indicated the vehicle had not crossed the border that day and had not previously been stopped on suspicion of smuggling. Frando began to "shake" and "bob" his head and tap his fingers, while his hands remained at the "ten and two" position. The agent described this behavior as "noteworthy" because he had seen other detainees and suspects behaving similarly. Based on Frando's behavior, the agents decided to pull him over (about five miles north of the checkpoint).
Frando presented a California identification card and told the agents he was traveling from San Diego to Los Angeles to "show a friend a house," but he was unable to tell the agents where the house was or his friend's name. Frando consented to a search of his vehicle. The agents discovered two suitcases in the vehicle's trunk; inside the bags were 33 individually wrapped bundles containing a total net weight of approximately33 kilograms of cocaine.1 Frando was arrested under suspicion of transporting cocaine for sale.
A detective on the border crime suppression team within the narcotics and gang division of the San Diego County Sheriff's Department interviewed Frando. Frando told the detective he was separated from his wife and living in his car. After being advised of his rights, Frando told the detective he had never driven drugs before. Frando said he had agreed to drive a woman to Los Angeles for his acquaintance Alex, who promised to give him $800 for the job. When the agent laughed—apparently expressing skepticism at the idea of getting paid $800 for driving someone—Frando acknowledged he "knew it wasn't, like, legit." Frando further stated, 2 He then explained the events that unfolded. When he arrived to pick the woman up, he was directed to back into the garage. A woman was there with her child, and there was also a man with tattoos. They closed the garage door, loaded two bags into his trunk, and directed that one bag should be delivered to "address A," while the other bag should be delivered to "address C." They told him he would not get the actual address until after he passed the border patrol checkpoint. Frando said the woman was supposed to go with him and hedid not know why that changed. After the detective told Frando he was transporting "almost a million dollars of drugs," Frando offered to cooperate with law enforcement by continuing the delivery so the agents could discover the destination location, stating, The detective advised Frando that cooperating in that manner was "too dangerous."
The detective testified as an expert at trial, opining that the street value of 33 kilograms of cocaine ranged from $1.3 to $2.6 million. Based on his training and experience, he did not think a first-time drug courier would be given such an extensive amount of cocaine. To prevent the possibility of theft, a drug trafficking organization would typically vet an employee by providing the employee with smaller amounts of drugs or different tasks until the employee demonstrated his trustworthiness and reliability.
Frando testified in his own defense at trial. He acknowledged he thought it was "strange" to be paid $800 to drive a woman to Los Angeles but claimed he "wasn't under the impression that [he] was doing anything illegal." Alex was a friend of Frando's good friend Joel, and Alex had contacted Frando attempting to reach Joel. Because Joel was out of the country, Alex asked if Frando would drive a woman to Los Angeles. Frando agreed. When he arrived at a townhouse to pick the woman up, he was directed to back into the garage. He saw a little girl inside, and a woman and a man were there. They closed the garage and loaded a pair of bags into the trunk. He was told there was a change of plans, and he should call to receive the addresses to deliver the bags after hepassed the border patrol checkpoint. He admitted he felt "uncomfortable," but felt perhaps a family needed his help to bring the bags to Los Angeles.
Frando claimed he told the agents he was going to Los Angeles to show a house because he had a restricted driver's license allowing him to drive only between home and work. He feared losing his car or his license for driving in violation of the restriction. After the agents searched his trunk, they told him he was being arrested for drug trafficking. He stated that he "should have known there was something wrong" with the job he was being asked to do but insisted he did not know there were 30 kilograms of cocaine in his car. However, on cross-examination, he admitted part of the reason he suspected "something was wrong" was because he knew that "Alex runs drugs to Joel," and Joel had told him he "engage[d] in these unsavory jobs, these driving jobs for Alex."
The jury convicted Frando of one count of transportation of a controlled substance, cocaine (Health & Saf. Code, § 11352, subd. (a)) and found true the allegations that the weight of the substance involved in the offense was 57 grams or more of a substance containing cocaine (Pen. Code, § 1203.073, subd. (b)(1)) and the substance containing cocaine exceeded 20 kilograms by weight (Health & Saf. Code, § 11370.4, subd. (a)(4)). The trial court sentenced him to a total term of 18 years, with eight years to be served in prison and 10 years suspended, to be served under supervised probation.
Frando contends his detention was unlawful because it was not supported by reasonable suspicion, in violation of his Fourth Amendment rights. He argues he was pulled over on a mere "hunch," and the trial court therefore erred when it denied his pretrial motion to suppress evidence obtained as a result of the unlawful detention. He further contends trial counsel provided ineffective assistance by failing to renew the motion to suppress at trial to preserve the issue for appeal.3
At the preliminary hearing, the border patrol agent described his duties including highway interdiction (or roving patrol)—i.e., driving and looking for suspicious behavior associated with "transport[ing] drugs or human smuggling." Frando captured the border patrol agent's attention because, when Frando noticed the agent's vehicle, "his hands immediately went to the 10 and 2 position, elbows locked, arms dipped." The agent testified Frando's behavior was "inconsistent with the general motoring public," and given his...
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