People v. Kolerich
| Decision Date | 16 December 1993 |
| Docket Number | No. D017280,D017280 |
| Citation | 20 Cal.App.4th 1788,25 Cal.Rptr.2d 691 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 20 Cal.App.4th 1788, 26 Cal.App.4th 665, 31 Cal.App.4th 925, 35 Cal.App.4th 1429, 40 Cal.App.4th 283 20 Cal.App.4th 1788, 26 Cal.App.4th 665, 31 Cal.App.4th 925, 35 Cal.App.4th 1429, 40 Cal.App.4th 283 The PEOPLE, Plaintiff and Respondent, v. Jean Ann KOLERICH et al., Defendants and Appellants. |
Sheldon Sherman, San Diego, and John L. Staley, Poway, by Appointment of the Court of Appeal, for defendants and appellants.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Shons, David I. Friedenberg and William M. Wood, Deputies Atty. Gen., for plaintiff and respondent.
Jean Ann Kolerich and Timothy Dean Kolerich appeal judgments entered after a jury convicted them of possessing methamphetamine for sale (Health & Saf.Code, § 11378) and simple possession (Health & Saf.Code, § 11377, subd. (a)), and found true the allegations a firearm was used in the commission of both offenses (PEN.CODE, § 120221, subd. (a)(1)) and they were personally armed with a firearm in the commission of the possession for sale offense (§ 12022, subd. (c)). They jointly contend the trial court abused its discretion in denying their motion for a mistrial when the alternate juror admitted she had not heard all the testimony and that substantial evidence does not support the armed findings. Individually, Jean asserts there is insufficient evidence in support of her possession convictions and that the trial court abused its discretion in sentencing her to prison. Timothy argues the verdict should be set aside because the prosecutor argued facts not in evidence during her closing argument; the matter should be remanded for resentencing because the trial court's comments suggested it was not aware of its discretion to strike the enhancement under section 1170.1, subdivision (h); and the consecutive one-year sentence for the section 12022, subdivision (a)(1) enhancement should be set aside because they were sentenced on the section 12022, subdivision (c) enhancement. As we shall explain, we conclude the trial court did not abuse its discretion in denying their motion for a mistrial and that substantial evidence supports Jean's convictions. However, substantial evidence does not support the armed findings. Consequently, concluding the remaining contentions are without merit, we affirm the possession convictions, but reverse the armed findings and remand the case to the trial court for resentencing.
On January 15, 1992, at approximately 11:45 a.m., Chula Vista Police Officer John Carlson with several other officers executed a search warrant at the residence located at 5959 Albemarle Street. As they approached the open front door, they encountered Timothy, who immediately declared, "Oh shit." After making their announcement and entering the residence, Carlson inquired whether there were any narcotics in the residence. Timothy replied he thought he was out, but if there was anything it would be "pot" and "crystal," which could be found in the top drawer of his bedroom dresser. A search of the two-bedroom house followed. In the Kolerichs' bedroom, on top of a dresser, the officers recovered two film canisters, a battery powered gram weight scale with white residue on it, a foil bindle containing methamphetamine, and a glass tube and pipe for smoking methamphetamine. The foil bindle was later tested and found to contain .08 grams of methamphetamine with an approximate purity of 75 to 80 percent. In the top dresser drawer, the officers found two plastic baggies containing methamphetamine, two pay/owe sheets listing amounts and numbers corresponding to a list of names, a box containing .22-caliber ammunition, a pen knife, brass knuckles, various papers in the names of both Kolerichs, a box containing four baggies of marijuana, an aspirin bottle and a tupperware container containing white residue, two marijuana cigarette rolling devices rolling papers, two marijuana pipes, weights for an Oahu's scale and a butane lighter. In the second dresser drawer, the officers found $4,500 in various denominations, ranging from $100 bills to $5 bills, as well as an envelope addressed to Timothy. In the third dresser drawer, the officers retrieved an unloaded .22-caliber pistol and a cross-bow. They also found an unloaded .22-caliber rifle and an unloaded shotgun in the bedroom closet.
In the living room, the officers recovered a butane torch, two smoking pipes, and a UHF scanner, capable of monitoring police communications. A third smoking pipe was found under a table and two other pipes were found on a living room shelf. Additional papers in the names of both Jean and Timothy were found in the living room. On the top of the refrigerator the officers recovered a box containing razor blades, mirrors and a "tooter" (a device for inhaling narcotics).
The two baggies recovered from the first dresser drawer were analyzed and found to contain 1.94 grams and .04 grams, respectively, of methamphetamine. The former had an approximate purity of 85 to 90 percent, while the purity of the latter was approximately 50 to 60 percent. A latent fingerprint found on the baggie containing the larger, pure quantity of methamphetamine was identified as being made by Timothy's right index finger. The handwriting on the pay/owe sheets probably was Timothy's.
During the approximately two and one-half hours the officers were present at the residence, numerous people came to the door 2 or made telephone calls to the Kolerichs. One caller, a female named "Greta," asked for Timothy and when she was told he was not available, then asked for Jean. When she was advised Jean was not available, she said she wanted to get "some stuff" and, when asked how much, she said she wanted a "40" (that is, $40 worth). She also inquired if it was all right if she paid for it later. The officer who answered the telephone believed the conversation was consistent with a methamphetamine purchase.
At trial, a narcotics expert opined the pay/owe sheets were narcotics sales records, reflecting a large customer base which was consistent with the high amount of foot traffic and phone calls the officers witnessed. Moreover, the large amount of cash and relatively small amount of drugs found indicated the inventory had been sold and not yet replenished. The guns and scales were also consistent with a drug sales operation. Consequently, the expert opined the drugs were possessed for sale or distribution. 3
Jean and Timothy had been married for approximately 11 years. She and her husband shared the bedroom; however, each had their own dresser. The dresser where the drugs were found was Timothy's. Jean testified the cash in the dresser was from an inheritance she had received several months earlier. Moreover, she denied any knowledge of, or participation in, drug trafficking.
On May 29, 1992, a jury found both Jean and Timothy guilty of both offenses and found true the armed allegations. On June 25, probation was denied and both were sentenced to prison for terms of five years, four months. The lower term (16 months) was imposed for the possessing for sale convictions. An additional one-year term was added for the armed enhancement under section 12022, subdivision (a)(1) and three years were added for the personally armed enhancement under section 12022, subdivision (c). The middle term was imposed for the simple possession convictions and stayed pursuant to section 654. Both Kolerichs timely filed their notices of appeal.
The Kolerichs first contend their convictions must be reversed because a juror did not hear all the testimony, thus denying them their right to a jury trial. As we shall explain, the trial court did not abuse its discretion in denying their motion for a mistrial nor deny them their right to a jury trial by its resolution of the matter.
During trial, a juror was excused and the alternate seated in place of the excused juror. While the court was instructing the alternate juror where to sit, the alternate juror replied: The trial court then excused the other jurors and questioned the alternate. During that questioning, the alternate juror indicated she had heard most of the testimony, but had difficulty hearing when a witness would lower his/her voice. The following transpired:
Upon inquiry by the court whether she had heard the opening statements, the alternate juror indicated she had, but was momentarily distracted trying to get names. Later, she reiterated she had only had difficulty when a witness would lower his/her voice, declaring: The trial court then denied the defense motion for a mistrial and directed the court reporter to read the entire...
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...Cal.App.4th 1446, 24 Cal.Rptr.2d 542 (tracking reprint) review granted, 28 Cal.Rptr.2d 151, 868 P.2d 906 (1994); People v. Kolerich (1993) 26 Cal.App.4th 665, 25 Cal.Rptr.2d 691 (tracking reprint) review granted, 28 Cal.Rptr.2d 793, 870 P.2d 384 (1994); People v. Allen (F019147-unpub. opn.)......
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