Filed 4/24/14 P. v. Richie CA5 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

JIMMY WAYNE RICHIE et al., 

Defendants and Appellants. 

F065073 & F065207 

(Super. Ct. Nos. AF008717A & 

AF008717B) 

OPINION

 APPEALS from a judgment of the Superior Court of Kern County. Colette M. 

Humphrey and Eric Bradshaw, Judges. 

 Peter Dodd, under appointment by the Court of Appeal, for Defendant and 

Appellant Jimmy Wayne Richie. 

 Gregory Marshall, under appointment by the Court of Appeal, for Defendant and 

Appellant Robert Edward Vanderhyde, Jr. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and 

Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 
2. 

 Defendants Jimmy Wayne Richie and Robert Edward Vanderhyde, Jr., were 

convicted of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and 

cultivation of marijuana (id., § 11358) following a jury trial. In a bifurcated proceeding, 

the jury found true the allegation Richie suffered four prior prison terms within the 

meaning of Penal Code1 section 667.5, subdivision (b). The trial court found true the 

allegation Vanderhyde also suffered a prior prison term. 

 The trial court sentenced Richie to a total term of four years’ custody pursuant to 

section 1170, subdivision (h), with an additional three years to be served on mandatory 

supervision. Vanderhyde was sentenced to two years in custody pursuant to section 

1170, subdivision (h), with an additional two years to be served on mandatory 

supervision. 

 On appeal Richie contends (1) the trial court erred in denying his suppression 

motion, (2) the court improperly instructed the jury with the flight instruction, (3) 

evidence he invoked a constitutional right was improperly admitted against him, (4) 

improper character evidence was admitted against him, (5) the trial court erred in 

imposing an accounts receivable fine, and (6) the admission of documents to prove his 

prior convictions violated his right to confront and cross-examine witnesses against him. 

Without any attempt to apply them to his case, Vanderhyde joins in “any and all 

arguments” made by Richie and further argues the evidence was insufficient to support 

his marijuana cultivation conviction. We will reduce defendants’ accounts receivable fee 

to $30, and reject defendants’ remaining arguments. 

FACTS 

 On May 13, 2011, police officers served a search warrant on 1417 Bush Street. 

While serving the search warrant, officers encountered a small house located at the back 

of the property. Officers knocked on the door to the back house—later determined to be 

1417 1/2 Bush Street—announced they had a search warrant, and attempted to enter. 

 

1All further references are to the Penal Code unless otherwise indicated. 
3. 

According to Officer William Funderburk, their entry was hindered by someone holding 

the door closed. However, Officer Jose Vazquez, the first officer to make entry, testified 

the deadbolt and doorknob were locked and he could not determine if someone was 

holding the door closed. Officers were able to force the door open by hitting it repeatedly 

with their body weight. It took approximately 30 seconds for the officers to gain entry. 

Upon entry, officers discovered Richie standing directly in front of the door. Vanderhyde 

was lying on the floor next to a computer table. 

 Officers immediately noticed a surveillance monitor showing a live picture of the 

area just outside of the front door. The officers subsequently conducted a search of the 

small one-bedroom residence and discovered a pill bottle with baggies of suspected 

methamphetamine inside, a cup containing numerous pieces of plastic cut into 

approximately one-inch squares, and marijuana, some packaged and some loose, on the 

computer table. In a storage compartment of the table, officers found a notebook with 

names and dollar amounts, consistent with a pay/owe sheet, four digital scales, some with 

a white residue on top, and ziplock bags. There were also numerous documents 

addressed to Richie on the desk. A basket on top of the table held two glass pipes used 

for smoking methamphetamine with white residue. Another methamphetamine smoking 

pipe was found in an ashtray next to the bed. A billy club was found underneath the 

desk. 

 In the pocket of a pair of pants located on the floor next to Vanderhyde, officers 

found two baggies containing suspected methamphetamine in two separate pockets of the 

pants, as well as $50. A wallet containing Richie’s identification was also located in 

another pocket of the pants. The wallet contained two EBT (electronic benefits transfer) 

cards, neither of which bore the name of either defendant. 

 Officers also located a police scanner in the room next to a notepad containing 

codes and the names of various police agencies. Officer Funderburk turned on the 

scanner and heard some of his police colleagues on the radio. While conducting the 

search, a cellular telephone located on the desk rang several times. Funderburk answered 
4. 

the phone on one occasion and the caller asked for “Jimmy.” A search of the phone’s 

text messages revealed a message sent at 1:27 a.m. that morning from “David” stating he 

could “use another 20.” 

 Outside of the back house, officers found seven potted marijuana plants. There 

was also fresh soil along the east wall of the back house. A search of Vanderhyde’s 

wallet revealed a paper with instructions for growing marijuana apparently using an 

indoor system. Vanderhyde also had an EBT card in his wallet belonging to someone 

else and $56 in cash. 

 Officers spoke to Vanderhyde after he was provided with his rights under Miranda 

v. Arizona (1966) 384 U.S. 436. Vanderhyde stated “all the dope” the officers found 

belonged to him. Specifically he stated there was an “eight ball” in his jeans and a 

“teener” on the desk. An “eight ball” is an eighth of an ounce or 3.5 grams of 

methamphetamine, while a “teener” represents a sixteenth of an ounce or 1.7 grams of the 

drug. A red motorcycle was found on the property. Vanderhyde stated the motorcycle 

was his and he had traded a fourth of an ounce of methamphetamine for it. 

 Apryl Brown, a criminalist, tested the suspected methamphetamine recovered by 

the officers. She tested three of the four baggies of substance submitted and determined 

they contained methamphetamine. The net weight of the baggies she tested was 10.94 

grams. 

 Sergeant Jonathan Swanson testified as an expert regarding narcotics and narcotics 

sales. A common way to use methamphetamine is by smoking it with a glass pipe. 

Several items often associated with narcotics sales include scales, cellular telephones, 

surveillance cameras, scanners, weapons, money, packaging materials, and pay/owe 

sheets. Narcotics dealers often use surveillance systems and scanners to warn them of 

police presence. It is also common for people to trade things, such as EBT cards, for 

drugs. Often methamphetamine users will sell the drug to support their habit. This is 

done by buying a large quantity of a drug and then repackaging it in smaller quantities 

and selling it at a profit. A message asking for a “20” also indicates sales, in that a “20” 
5. 

refers to an amount of drugs. One of the baggies of methamphetamine recovered from 

the house weighed 0.16 grams, which is consistent with a “20.” 

 Regarding methamphetamine use, Swanson testified a typical user will use 

anywhere between 0.1 to 0.25 grams of methamphetamine at a time. A new user 

commonly uses 0.1 grams a few times per week. A heavy user could use between 0.1 

and 0.25 grams two to three times per day. Swanson was aware of the amount of 

methamphetamine found here, 10.94 grams. In his experience, people possessing 

methamphetamine solely for personal use possess much smaller amounts. The amount 

found comprised approximately 110 uses. 

 In his opinion, the methamphetamine was possessed for sales. Swanson based his 

opinion on a combination of factors including the large amount of methamphetamine 

found, the packaging material, the presence of a billy club, the scales with residue, and 

the presence of surveillance equipment as well as a scanner. Further, the presence of the 

EBT cards and the cell phone message further supported his opinion, as the message 

indicated sales, and people often trade EBT cards for drugs. 

Defense Case 

 Vanderhyde testified in his own defense. Vanderhyde admitted he is a 

methamphetamine user, using a gram to a gram and a half per day. He stated the 

methamphetamine found in the search belonged to him. He denied selling 

methamphetamine. 

 On the day in question, Vanderhyde was staying with Richie at his home because 

he had injured his leg and could not move around on his own. Richie had offered to let 

him stay with him and provided someone to cook him meals. The monitor for the 

surveillance camera was always on and was present when he began staying there a few 

weeks earlier. The monitor was very noticeable in the room. 

 Regarding the search of the home, Vanderhyde testified he woke up when the 

police officers arrived at the door of the home. He had been asleep on the floor and 

immediately grabbed his drugs and put them into the pocket of some pants. He thought 
6. 

the pants were his but they belonged to Richie. When he heard the noise, he could see 

the police officers on the surveillance monitor. All the methamphetamine the officers 

found belonged to him. The marijuana was also his. 

 Vanderhyde’s practice is to buy an ounce of methamphetamine, which equals 

approximately 28 grams, once a month and then divide it into smaller packages. He 

weighed his methamphetamine into individual doses using a scale. Vanderhyde testified 

he does this so the methamphetamine will last him through the month. If he does not 

divide the methamphetamine in such a manner and leaves it in one large container, it will 

not last him through the entire month. He had bought the methamphetamine prior to 

staying with Richie but had not yet divided it into smaller amounts because he was hiding 

his methamphetamine from Richie. He meant to divide the drugs the night before the 

search, but took some pain medication and could not complete the process. 

 Regarding the scales found during the search, Vanderhyde testified he only 

possessed a single scale, and the four scales found in the desk were not his. The scanner 

found in the house was also his, although it was not working at the time. He had written 

down the codes next to the scanner. 

 Vanderhyde denied ever telling the officers he traded methamphetamine for the 

motorcycle found outside the residence. Vanderhyde never smoked methamphetamine 

with Richie nor did he ever see him use methamphetamine. The marijuana on the desk 

was his. He sometimes saved marijuana seeds and had been thinking about cultivating 

marijuana but had not done so; the marijuana plants found at the residence were not his. 

Regarding the marijuana growing instructions found in his wallet, he claimed it was for 

an indoor hydroponic system, not for an outdoor growing operation. He had not seen the 

marijuana growing outside of the house but noted the area was accessible to people from 

both the front and the back houses. 

 Vanderhyde admitted to a prior conviction for theft in 2005. 
7. 

DISCUSSION 

I. The Trial Court Properly Denied the Suppression Motion 

 Defendants2 claim the trial court improperly denied their motion to suppress the 

evidence discovered at 1417 1/2 Bush Street. They claim the original warrant did not 

encompass the back house as it could not be considered an “outbuilding” of the front 

house. Additionally, they argue, the trial court’s ruling that the officer reasonably 

concluded the back house was an outbuilding is unsupported by the record. Further, they 

argue the officers’ entry into the back house was unreasonable, and the subsequent 

warrant which was obtained for the back house was based upon observations that were 

made illegally. We find the initial warrant was properly executed. 

Background 

 Officer Funderburk obtained the initial warrant to search the residence located at 

1417 Bush Street. The warrant listed Richie as a person to be searched and included as 

relevant here, “any garages, storage rooms, trash containers, and outbuildings of any kind 

located thereon.” The warrant was based upon a controlled narcotics buy with a 

confidential informant. The transaction took place at 1417 Bush Street, and Richie was 

identified as the seller. According to the affidavit in support of the warrant, Funderburk 

conducted a record check of vehicles located at the residence and discovered one was 

registered to Richie. Funderburk opined that Richie resided at 1417 Bush Street based 

upon a search of Department of Motor Vehicles (DMV) records, as well as the fact that 

Richie used the address for his Health and Safety Code section 11590 narcotics 

registration. 

 At the hearing on the motion to suppress, Funderburk testified they executed the 

warrant at approximately 6:34 a.m. The property consisted of a front house facing the 

street with a mailbox denoting the address as 1417. Approximately 50 feet behind the 

 

2As Vanderhyde failed to make any specific arguments regarding the issues raised by 

Richie as related to him, we will not address any arguments that might be unique to Vanderhyde. 

(People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) 
8. 

house was a small structure, consisting of one room, on the southeast portion of the 

property. The area between the front house and back structure was composed of dirt and 

had various vehicles parked on it. Both buildings were painted the same color, and there 

was no obstruction between the front and back buildings, although there was a fence on 

the west side of the property that would prevent someone on the street from entering the 

back structure. There were no markings on the back house to indicate it had a different 

address and there was only one mailbox on the property. 

 When the officers served the warrant, they announced their presence at the front 

house and entered through the open front door. Upon entering, officers detained the 

occupants, Virginia Richie and her adult daughter. Ms. Richie was asked where Richie 

was located, and she indicated he was in the back building. At that point, officers 

approached the back building. The back building contained a single door and window, 

however, officers could not see inside. Officers knocked on the door and announced their 

presence, stated they had a search warrant, and attempted to enter. They were met with 

some resistance at the door, however, they were able to make entry and detain both 

defendants inside. Upon entering the back building it was apparent the structure was 

being used as a residence; it consisted of a single bedroom, kitchen area, and a bathroom. 

While detaining defendants, Funderburk observed in plain sight a pill bottle containing a 

clear plastic baggie with a crystalline substance inside resembling methamphetamine. 

 After detaining defendants, the officers escorted all the occupants from the two 

houses to the common backyard area and informed them they were going to begin the 

search. At that point, one of the occupants informed the officers that the back building 

where defendants were detained had a separate address of 1417 1/2 Bush Street. Officers 

could not locate any identifying marks on the back building indicating it was a separate 

address, however, Funderburk decided to get a second search warrant to cover the back 

address before conducting the search. While obtaining the warrant, officers “froze” the 

back building, securing the exterior. In applying for the second search warrant, 

Funderburk repeated the facts contained in the first affidavit, adding only that during the 
9. 

execution of the first search warrant, officers learned Richie lived in a detached residence 

at 1417 1/2 Bush Street just to the south of 1417 Bush Street and that Funderburk had 

observed the suspected methamphetamine in the medicine bottle in plain sight upon 

detaining defendants. Funderburk received the second search warrant approximately two 

hours after serving the first search warrant. Officers later confirmed the back house in 

fact had a separate address of 1417 1/2 Bush Street. 

 Upon searching the back residence, officers found, as relevant here, several letters 

addressed to Richie bearing the 1417 Bush Street address. Funderburk also indicated he 

had conducted a DMV records check for Richie listing his address as 1417 Bush Street. 

Additionally, defendant’s vehicle was registered to the same address. 

 Defendants moved to suppress the evidence found in the back residence. The 

People opposed the motion, arguing, in part, that the first search warrant, which included 

a provision to search all outbuildings on the premises, was valid for the search of the 

back building. Further, the People argued, the back house “is not a separate address and 

merely an outbuilding located thereon the premises of 1417 Bush Street as described in 

the first search warrant.” In arguing the motion to suppress, Richie argued “the search of 

the back residence was beyond the scope of the search warrant. The search warrant states 

1417 Bush Street, it does not state 1417 and a half Bush Street.” He further argued the 

officers knew the back residence was on the premises although admitted the officers did 

not know it had a different address. He concluded his argument as follows: 

 “Your Honor, I would contend it doesn’t matter whether or not that 

officer knew it had a separate mailing address or separate number of the 

city’s register or whatever it is that the building inspector would be talking 

about, it’s a separate residence. A separate residence. And it cannot be 

called an outbuilding. It’s a residence and it’s a separate residence and that 

is not named in the search warrant. It is not included as a outbuilding 

because it is its own separate residence.” 

 Vanderhyde followed up on this argument, stating the testimony established the 

officers entered the back residence after learning it had a separate address. The trial court 

pointed out the assertion was incorrect, noting the court had clarified that issue during the 
10. 

hearing, asking the officer at what point specifically he learned the back residence had a 

separate address. The court noted the officer testified he only learned the back residence 

possibly had a different address after they removed the two defendants. 

 After asking the prosecutor if he wanted “to submit [the issue] on your papers?” 

and receiving an affirmative response, the trial court ruled on the motion as follows: 

 “First of all, with regard to the officer’s actions in entering the back 

residence, I think it does matter when they knew it had a separate address 

... because the search warrant allowed them to search the front residence 

and all outbuildings, and I don’t know if even your client knew it was a 

separate residence, because his driver’s license and vehicle were registered 

to 1417 Bush Street, not 1417 and a half Bush Street, there were no 

numbers on the building to indicate it was a separate residence. 

“As soon as the officer received information that it was a separate 

residence, the first thing he did was freeze the scene and obtain a second 

search warrant. To me, that indicates an officer who’s acting in good faith. 

And when he entered the residence, he had a reasonable belief it’s an 

outbuilding, not a residence. And as soon as he found out it was a separate 

address, he did the right thing: he froze the scene and obtained a search 

warrant.” 

Forfeiture 

 Initially, we address defendants’ contention the People forfeited the argument that 

officers properly entered the back building under the mistaken belief it was covered in the 

initial warrant. In the opening brief, defendants note one “of the issues on which the trial 

court focused was that the initial search warrant authorized the search of 1417 Bush and 

all ‘outbuildings’. However the record does not support a finding that the police could 

reasonably decide that 1417 1/2 Bush was an outbuilding.” Plaintiff counters “that 

exclusion was not warranted because the police entry was made under a reasonable, 

albeit, mistaken belief that Richie’s residence was within the scope of the initial warrant.” 

In reply defendants argue “this justification was not presented at trial, and thus may not 

be raised for the first time on appeal.” We disagree. 

 As recounted above, the People argued, at least briefly, in their opposition to 

defendants’ motion, that the officers’ entry into the back residence was supported by the 
11. 

warrant. Indeed, defendants argued against this theory at the motion to suppress, and the 

trial court expressly ruled the officers’ entry into the back residence was based upon a 

reasonable belief it was an outbuilding as described in the warrant. Thus it appears the 

issue was in fact raised in the trial court. 

 This conclusion is further supported by the fact the prosecutor questioned the 

officer extensively regarding the outward appearance of the back house, whether it had 

any separate markings indicating a separate address, whether the back and main residence 

were painted in a similar manner, whether there were any obstructions between the main 

house and the back house, and when the officer had received the information the back 

building had a separate address. Richie also cross-examined the officer on the issue, 

asking whether he knew the back building existed before he served the initial search 

warrant, when he learned from the building inspector that the back building indeed had a 

separate address, and whether the officers announced a search warrant when they initially 

entered the back residence. Vanderhyde also followed up regarding when the building 

inspector was called to determine a separate address of the back residence, and whether 

the officer knew at the time he initially entered the back residence that it had a different 

address. 

 Furthermore, Richie called a witness at the suppression hearing to describe the 

interior of the back residence to establish that, upon entry, one would conclude the 

building was in fact a dwelling. The witness testified the building contained a kitchen, a 

bathroom, and a room with a bed, and Richie lived in the building. 

 Although a reviewing court may decide the merits of an alternate theory not 

presented by the parties below, our Supreme Court has cautioned appellate courts from 

considering for the first time on review a new theory to support a search or seizure where 

“‘the People’s new theory was not supported by the record made at the first hearing and 

would have necessitated the taking of considerably more evidence, ...’ or when ‘the 

defendant had no notice of the new theory and thus no opportunity to present evidence in 

opposition.’” (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1242, quoting Green v. 
12. 

Superior Court (1985) 40 Cal.3d 126, 137-138; see Mestas v. Superior Court (1972) 7 

Cal.3d 537, 542 [prohibiting use of new justification at appellate level to support search 

where prosecution failed to make factual record in trial court demonstrating officer acted 

upon that justification]; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641 

[People prevented from presenting new theory on appeal that would necessitate 

development of additional evidence]; Giordenello v. United States (1958) 357 U.S. 480, 

487-488 [government prevented from asserting new justification on appeal for arrest 

where defendant had no notice of the theory at trial level and therefore no opportunity to 

develop facts undermining the theory].) 

 In Green v. Superior Court, our Supreme Court explained that where the theory 

forwarded on appeal was fully developed in the trial court, despite a mere passing 

reference of the theory in the trial court, failing to consider the “clear applicability” of the 

theory on review would “run contrary to the settled principle of appellate review that a 

correct decision of the trial court must be affirmed on appeal even if based on erroneous 

reasoning.” (Green v. Superior Court, supra, 40 Cal.3d at p. 138.) Here, as recounted 

above, the facts relating to whether the officers reasonably believed the back residence 

was an outbuilding were fully developed in the trial court. Furthermore, as recounted 

above, it is likewise clear defendants had notice of this theory in the trial court and it was 

in fact the basis of the trial court’s ruling. We will, therefore, proceed to the merits. 

Legal Analysis 

 In reviewing a trial court’s ruling on a motion to suppress, we defer to the court’s 

factual findings where they are supported by substantial evidence. (People v. Glaser

(1995) 11 Cal.4th 354, 362.) However, this court uses its independent judgment in 

determining whether, in light of the facts as found by the trial court, the search or seizure 

was reasonable under the Fourth Amendment. (Ibid.) The trial court found the officer 

had a reasonable belief at the time they entered the back house it was an outbuilding 

covered by the initial warrant. We agree. 
13. 

 Defendants argue the officer’s entry into the back house exceeded the scope of the 

warrant and was not justified by any exigent circumstances. A warrant to search a single 

dwelling unit will also permit the search of outbuildings, but does not extend to the 

search of multiple dwellings on the same property without probable cause to search each 

dwelling or a reasonable basis for believing the entire premises is a single living unit. 

(People v. Estrada (1965) 234 Cal.App.2d 136, 146.) The initial warrant expressly 

included all outbuildings associated with 1417 Bush Street. The crux of defendants’ 

argument is that because the back house was in fact a dwelling, the officers’ entry into 

the back house was necessarily invalid. However, defendants fail to recognize the 

constitutionality of the officers’ execution of a search warrant is assessed “in light of the 

information available to them at the time they acted.” (Maryland v. Garrison (1987) 480 

U.S. 79, 85 (Garrison).) When we consider the officers’ entry into the back house based 

upon the information they had at the time, it becomes clear the entry was valid under the 

initial warrant. (Ibid.) 

 In Garrison, officers obtained a warrant for Lawrence McWebb and the third floor 

apartment of a specific address. At the time of the search, officers believed the third floor 

contained a single apartment. However, the third floor actually contained two 

apartments, one belonging to McWebb and the other belonging to Garrison. When 

serving the warrant, officers encountered McWebb outside of the apartment building. 

They used his key to enter the building and proceeded to the third floor where they 

encountered Garrison standing in the hallway area. Officers could see into both 

apartments, as both doors were open. Officers entered and began searching and 

discovered the floor actually contained two separate apartments, and the various items of 

contraband found were found in Garrison’s apartment. Officers discontinued their search 

of Garrison’s apartment upon learning the apartment they entered actually belonged to 

Garrison. The trial court found the officers reasonably believed they were searching 

McWebb’s apartment. (Garrison, supra, 480 U.S. at pp 80-81.) 
14. 

 In upholding the validity of the search, the Supreme Court first determined the 

warrant was valid at the time it was issued despite the subsequent discovery the warrant 

was overbroad. (Garrison, supra, 480 U.S. at p. 85.) The court determined that in 

assessing the validity of the warrant, the court must consider the information available to 

the officers at the time they acted. (Ibid.) 

 Next, the court considered whether the execution of the warrant violated 

Garrison’s Fourth Amendment right to be free from unreasonable searches. The court 

noted: “If the officers had known, or should have known, that the third floor contained 

two apartments before they entered the living quarters on the third floor, and thus had 

been aware of the error in the warrant, they would have been obligated to limit their 

search to McWebb’s apartment.” (Garrison, supra, 480 U.S. at p. 86.) However, the 

court concluded the “officers’ failure to realize the overbreadth of the warrant was 

objectively understandable and reasonable.” (Id. at p. 88.) This was because the 

“objective facts available to the officers at the time suggested no distinction between 

McWebb’s apartment and the third-floor premises.” (Ibid.) 

 Likewise here, the trial court determined the officers reasonably believed the 

detached residence in the back was an outbuilding covered by the warrant. Substantial 

evidence supports that finding. The evidence established the two dwellings occupied a 

single plot of land, the two buildings shared a common yard, and there were no 

obstructions preventing entry between the front and back houses. The two houses were 

described as having identical color schemes and roofing. There was a single mailbox on 

the front of the property bearing the 1417 address. There were no markings on the back 

building to indicate it had a separate address. When officers executed the warrant, they 

were told by Virginia Richie that Richie was in the back building. Importantly, they were 

not told at that time the back building bore a separate address. Indeed, all the information 

the officers possessed at the time suggested the two buildings bore the same address, as 

defendant’s narcotics registration and the DMV records both indicated he lived at the 

1417 address. 
15. 

 The back building had a single door and window, however, officers could not see 

into the building before they made entry. While substantial evidence was offered to 

demonstrate that, upon entry, it was apparent the back building was a dwelling, no 

evidence suggested the officers could make that determination solely from an observation 

of the exterior. Officers knocked and announced their presence, declaring they had a 

search warrant for the premises, which indicated they believed the warrant in fact 

encompassed the back building. Once they entered and detained defendants, it was 

apparent the back building was a dwelling. Upon learning it also may have a separate 

address; the officers simply froze the residence and applied for a second search warrant. 

It is important to note the officers did not search the back building until they obtained the 

second warrant. While the officers did observe the suspected methamphetamine upon 

entry of the back building, it appears undisputed the contraband was in plain sight. 

(Horton v. California (1990) 496 U.S. 128, 133 [“If an article is already in plain view, 

neither its observation nor its seizure would involve any invasion of privacy”].) As such, 

the observation of the suspected methamphetamine was properly placed in the affidavit. 

 Considering the court’s factual findings here, we agree the officers’ actions in 

executing the initial search warrant was reasonable in light of the information they 

possessed at the time. (Garrison, supra, 480 U.S. at pp. 86-88.) As such, the officers’ 

entry into the back house was valid and defendants’ motion was properly denied. 

II. Instructing the Jury With the Flight Instruction Was Proper 

 Richie argues the trial court improperly instructed the jury with a modified flight 

instruction because there was no evidence he took actions to avoid arrest immediately 

after any crime. He further argues the modified CALCRIM No. 372 constituted an 

improper pinpoint instruction. We find no error. 

 At trial, the jury was instructed as follows: 

“If the defendant fled or tried to flee immediately after the crime was 

committed or after he was accused of committing the crime, that conduct 

may show that he was aware of his guilt. 
16. 

“If you conclude that the defendant fled or tried to flee, it is up to 

you to decide the meaning and importance of that conduct; however, 

evidence that the defendant fled or tried to flee cannot prove guilt by itself. 

“For purposes of this instruction, flight does not require that a person 

run from the scene or make an escape. What is required is acting for the 

purpose of avoiding observation or arrest.” 

 Pursuant to section 1127c, a trial court is required to instruct the jury, in language 

similar to CALCRIM No. 372, regarding flight where evidence of flight is relied upon as 

evidence tending to demonstrate a defendant’s guilt. In arguing the instruction was not 

warranted here, Richie claims there was no evidence he fled “immediately after” the 

commission of a crime, nor was there evidence he knew he had been accused of a crime. 

Richie’s argument is misplaced as CALCRIM No. 372 “neither requires knowledge on a 

defendant’s part that criminal charges have been filed, nor a defined temporal period 

within which the flight must be commenced, nor resistance upon arrest.” (People v. 

Carter (2005) 36 Cal.4th 1114, 1182.) In Carter, our Supreme Court found the flight 

instruction was plainly warranted where the defendant left the state in the days following 

the offenses and was in possession of a murder victim’s vehicle when subsequently 

arrested in another state. (Id. at p. 1182.) A flight instruction is proper when the 

defendant’s actions “logically permit[] an inference that his movement was motivated by 

guilty knowledge.” (People v. Turner (1990) 50 Cal.3d 668, 694; see People v. Visciotti

(1992) 2 Cal.4th 1, 60 [flight requires a purpose to avoid being observed or arrested].) 

 Here the evidence amply supports the flight instruction. Richie possessed 

methamphetamine, in plain sight, in the back house, and the jury found he possessed the 

drugs with the intent to sell them. Funderburk testified that before entering the back 

house, an officer yelled “Police, search warrant, open the door.” This announcement was 

made several times in both English and Spanish. Further, a surveillance monitor showing 

who was at the front door was on inside the house. Officers attempted to enter, but, 

according to Funderburk, someone was holding the door closed. After a brief struggle, 

officers were able to make entry and saw Richie standing directly in front of the door. 
17. 

The only other person in the back house was Vanderhyde, who was lying on the floor 

near a computer table. From this evidence, the jury could have concluded Richie, 

knowing he possessed a quantity of methamphetamine and knowing the police were at 

his door with a search warrant, held the door closed in an attempt to avoid detection or 

arrest for his crimes. As such, the instruction was proper. 

 We likewise reject Richie’s argument, relying on People v. Wright (1988) 45 

Cal.3d 1126, that CALCRIM No. 372 constituted an improper pinpoint instruction. 

Richie omits from his argument a citation to any of the California Supreme Court cases 

rejecting this very argument. As our Supreme Court has noted, the argument that the 

flight instruction is an “impermissibly argumentative pinpoint instruction[] that allow[s] 

juries to draw improper inferences of guilt ... has been repeatedly rejected.” (People v. 

McWhorter (2009) 47 Cal.4th 318, 377 [addressing predecessor CALJIC No. 2.52 flight 

instruction]; cf. People v. Taylor (2010) 48 Cal.4th 574, 630 [declining invitation to 

reconsider whether CALJIC No. 2.25 consciousness of guilt instruction is impermissibly 

argumentative]; People v. Avila (2009) 46 Cal.4th 680, 710 [“flight instruction does not 

create an unconstitutional permissive inference or lessen the prosecutor’s burden of 

proof, and is proper”]; People v. Mendoza (2000) 24 Cal.4th 130, 180-181 [rejecting 

arguments that CALJIC No. 2.52 flight instruction is improper pinpoint instruction and 

impermissibly argumentative].) We are of course bound to follow our high court’s firmly 

established precedent in this regard, thus we likewise reject Richie’s claim. (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 

 Even if we were to agree that instructing the jury with CALCRIM No. 372 was 

error, as our Supreme Court has repeatedly held, the giving of the instruction would be 

harmless as the “instruction did not assume that flight was established, leaving that 

factual determination and its significance to the jury.” (People v. Visciotti , supra, 2 

Cal.4th at p. 61; see People v. Carter, supra, 36 Cal.4th at pp. 1182-1183.) Here there 

was conflicting evidence regarding whether Richie was holding the door closed, and 

defense counsel argued the evidence did not establish he was preventing the officers’ 
18. 

entry. If, as Richie contends, there was insufficient evidence of flight, the instruction, by 

its own terms, had no application for the jury. 

 Moreover, where a trial court gives a legally correct but inapplicable instruction, 

the error “‘is usually harmless, having little or no effect “other than to add to the bulk of 

the charge.”’ [Citation.]” (People v. Lee (1990) 219 Cal.App.3d 829, 841; cf. People v. 

Visciotti, supra, 2 Cal.4th at p. 61 [even if flight instruction should not have been given, 

it was “clearly harmless”].) 

 Furthermore, as discussed post, the evidence of guilt against Richie was 

compelling, such that any error was clearly harmless. 

III. Defendant Forfeited Any Error in the Admission of Evidence that He 

Invoked His Fourth Amendment Rights 

 In a related argument, Richie contends the trial court erred by permitting evidence 

that he invoked his Fourth Amendment right to be free from unreasonable search. 

Plaintiff argues the claim was forfeited due to Richie’s failure to object on that ground in 

the trial court. We agree. 

 Prior to trial, Richie sought to exclude evidence regarding “any defendant 

blocking or hindering officers from entering a residence.” He did not state in his moving 

papers on what basis he sought to exclude this evidence. In arguing the in limine 

motions, the prosecutor initially explained the evidence was sought as indicative of 

consciousness of guilt. When asked why the evidence should be excluded, Richie 

argued: 

“A person trying to hinder somebody from entering their home, that’s—I 

would contend that does not show consciousness of guilt. That goes to 

the—to the—again, a fundamental right to—of people to protect their 

homes from entry by strangers. And any natural person would try to keep 

strangers from entering their home. It doesn’t necessarily mean that there’s 

any illegal activity going on inside of the home or that a person is trying—

that it reflects upon consciousness of guilt. And therefore, it’s—it’s—I 

would contend that it’s not relevant to the charges in this case.” 

 Subsequently the prosecutor informed the court of the circumstances of the entry, 

namely, the officers identified themselves as police and stated they had a search warrant. 
19. 

The prosecutor further explained there was a surveillance monitor inside the residence 

that showed the officers at the front door. When asked to respond, Richie argued again 

that the evidence did not demonstrate consciousness of guilt and objected that the 

evidence was irrelevant. The trial court denied Richie’s motion to exclude. At trial, there 

was no objection to the evidence that someone held the door closed as the officers 

attempted to enter pursuant to the warrant. The only objection to this line of inquiry 

related to who was holding the door closed. Those objections were based solely on the 

grounds of a lack of foundation, and once a sufficient foundation was provided, the 

evidence was introduced without objection. 

 It is well settled “‘that questions relating to the admissibility of evidence will not 

be reviewed on appeal in the absence of a specific and timely objection in the trial court 

on the ground sought to be urged on appeal.’” (People v. Raley (1992) 2 Cal.4th 870, 

892, quoting People v. Rogers (1978) 21 Cal.3d 542, 548.) While Richie objected to the 

introduction of the evidence, he never argued the admission of the evidence implicated 

his Fourth Amendment rights. His sole objection was the evidence was irrelevant as it 

did not establish consciousness of guilt. As the issue was not raised in the trial court, it 

has been forfeited on appeal. 

 Perhaps anticipating this ruling, Richie argues his counsel’s failure to raise the 

issue in the trial court constituted ineffective assistance of counsel. “Under both the 

Sixth Amendment to the United States Constitution and article I, section 15, of the 

California Constitution, a criminal defendant has the right to the assistance of counsel.” 

(People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of 

counsel, “‘a defendant must show both that his counsel’s performance was deficient 

when measured against the standard of a reasonably competent attorney and that 

counsel’s deficient performance resulted in prejudice to defendant ....’” (People v. Lewis

(2001) 25 Cal.4th 610, 674.) 

 Richie fails to show how defense counsel’s omission fell below the prevailing 

professional norms under an objective standard of reasonableness. (People v. Ledesma, 
20. 

supra, 43 Cal.3d at p. 216.) As previously noted, the trial court had correctly ruled there 

was no Fourth Amendment violation in the officers’ entry into Richie’s home as they had 

a search warrant they could reasonably rely upon for that entry. An argument Richie 

could prevent their entry based on his right to be free of unreasonable searches would 

have been futile under the circumstances. 

 In any event, as discussed post, the evidence of Richie’s guilt was compelling. He 

cannot meet his burden to show counsel’s alleged deficient performance resulted in 

prejudice to his case. (People v. Lewis, supra, 25 Cal.4th at p. 674.) 

IV. The Admission of Any Improper Character Evidence Was Harmless 

 At trial, Vanderhyde testified in his own defense. During direct examination, 

Vanderhyde testified Richie “offered his home” for Vanderhyde to stay in while he 

recovered from an accident. While there, someone cooked for him while he recovered. 

During cross-examination, the prosecutor asked Vanderhyde if Richie was “nice enough 

to offer you his residence because you were injured.” Vanderhyde stated that was correct 

and volunteered that Richie also offered him the use of his bed. 

 When the prosecutor asked Vanderhyde whether he considered Richie a good 

friend, Vanderhyde responded, “Yeah, he is like a real good person.” Subsequently, 

Richie’s counsel asked several questions relating to how Vanderhyde got his injury and 

elicited the fact Richie took him to the hospital and picked him up. He had Vanderhyde 

show the jury the scar from his injury. Further, he elicited the fact Richie offered to let 

him stay in his home and that he used Richie’s bed. Vanderhyde offered that he had to 

convince Richie to take his bed back after 10 days and he started sleeping on the floor. 

 After Richie’s counsel questioned Vanderhyde, the prosecutor sought to introduce 

evidence Richie suffered two prior misdemeanor convictions of moral turpitude in an 

attempt to rebut the evidence of Richie’s good character. The prosecutor argued 

Vanderhyde testified to Richie’s good character as follows: (1) Richie was a “good 

person”; (2) Richie offered to let Vanderhyde stay with him; (3) Richie cared for 

Vanderhyde; and (4) Vanderhyde had to convince Richie to take back his own bed. 
21. 

Because defendants offered evidence of Richie’s good character, the prosecutor argued 

he should be allowed to rebut the evidence of Richie’s prior convictions for petty theft 

and providing false information to a police officer. When asked exactly how he sought to 

introduce the evidence, the prosecutor explained he would only ask Vanderhyde if he was 

aware of the prior convictions, and if the information would change his opinion regarding 

Richie’s character. 

 The trial court allowed the inquiry, explaining the evidence had “painted a certain 

picture” of Richie, and the evidence was elicited without objection. Subsequently, the 

prosecutor asked Vanderhyde if he was aware of the two prior convictions and if that 

changed his opinion of Richie. Vanderhyde testified it would not. 

 On appeal, Richie contends the trial court erred in allowing the prosecutor to 

introduce improper character evidence against him. We need not decide whether 

evidence of Richie’s prior misdemeanor convictions was properly introduced because 

even assuming the evidence was improperly admitted, it was clearly harmless. Error in 

admitting improper character evidence is tested by the standard set out in People v. 

Watson (1956) 46 Cal.2d 818. (People v. Malone (1988) 47 Cal.3d 1, 22.) Under this 

familiar standard, we ask whether it is reasonably probable the defendant would have 

received a more favorable outcome had the evidence not been admitted. (People v. 

Watson, supra, at p. 836.) Upon a review of the evidence we can confidently determine 

there was no such reasonable probability. 

 As we have previously indicated, the evidence implicating Richie was strong. 

Richie lived in the back house. According to the evidence, all the documents found at the 

residence were addressed to Richie, not Vanderhyde. Richie had several items of 

paperwork listing the back residence as his home. In addition, evidence established at 

trial that Richie’s mother and sister lived in the front house, further establishing Richie 

was the occupant of the back house. Some of the methamphetamine was found in plain 

sight in a medicine bottle on the computer table. The remainder of the methamphetamine 
22. 

was found in a pair of pants that also contained Richie’s wallet. The amount of 

methamphetamine found was also significant, comprising almost 11 grams. 

 The residence was small, consisting of one room with a small kitchen and 

bathroom. There were four digital scales located in a cabinet of the computer desk. 

Further, there were three methamphetamine pipes in plain view within the room: two in a 

basket and one in an ashtray next to Richie’s bed. There was evidence of a pay/owe sheet 

also located in the room. While the officers were searching, a cellular telephone rang 

repeatedly. Officers answered and the caller asked for “Jimmy.” Officers inspected the 

text messages on the telephone and found a message received early that morning that was 

indicative of drug sales. The home contained a surveillance system with a camera 

directed at the front door and a police scanner sat atop a table with police codes written 

on a notepad next to it. The scanner was tuned to the local police department channel. 

 Given the size of the residence and the location of much of the evidence in plain 

view, the inference that Richie possessed the methamphetamine for sale was quite strong. 

Although Vanderhyde testified and claimed ownership of the methamphetamine, much of 

the evidence contradicted his testimony. Some of the methamphetamine was in plain 

view in a pill bottle on the table and methamphetamine pipes were also present in the 

room. Four scales with white residue were found in the cabinet of the desk and 

Vanderhyde denied those belonged to him. Further evidence of drug sales was found on 

Richie’s cellular telephone. 

 Additionally, Vanderhyde claimed to buy a significant amount of 

methamphetamine once a month when he received his government check and then would 

divide the drug into smaller amounts to regulate his use. However, the methamphetamine 

found at the residence was not divided up into smaller amounts for a month-long use. 

Rather, the almost 11 grams of the drug was in four packages of vastly different sizes. 

Indeed, according to the testimony, one bag had 0.16 grams while another had 1.3 grams. 

The testimony also demonstrated one of the baggies was consistent with an “eight ball,” 

or 3.5 grams. 
23. 

 Further, the case depended more upon Vanderhyde’s credibility than Richie’s. 

Vanderhyde testified the drugs were his and Richie did not know about them. However 

the character evidence Richie complains of did little to impeach Vanderhyde’s credibility 

regarding the ownership of the drugs. 

 When considering the prejudicial impact of a prior offense, several factors should 

be considered. These include the degree to which the prior is similar to the charged 

offense, how recent the prior occurred, and the relative seriousness or inflammatory 

nature of the prior compared with the charged offense. (People v. Wade (1996) 48 

Cal.App.4th 460, 469.) Here, the character evidence related only to Richie’s veracity, it 

did not suggest Richie was a drug user or dealer as the prior convictions were not similar 

to the charged offenses. Both offenses took place over nine years prior to the trial and 

were for relatively minor conduct. They did not suggest, as Richie argues, a significant 

and serious criminal record. Indeed, the prior convictions were significantly less severe 

than the charges for which Richie was on trial. These factors all indicate the prejudicial 

impact of the prior convictions was minimal. 

 Additionally, we note this case is unlike People v. Ogunmola (1985) 39 Cal.3d 

120, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, upon which 

defendant relies. There, the defendant, a doctor, was charged with the rape of two 

women during their medical exams. The defendant had previously been tried for 

identical offenses against two different women and acquitted. At trial, the trial court 

permitted these witnesses to testify as to their encounters with the defendant. The 

Supreme Court found the prior offenses were improperly admitted. (Ogunmola, at pp. 

123-124.) In finding the error was prejudicial, the court noted the “fact that the two 

complaining witnesses were impermissibly corroborated by two others, had to carry 

much weight with the jury.” (Id. at p. 124.) In the context of that trial, which “pitted the 

credibility of the complaining witnesses against that of defendant,” the error was 

prejudicial. (Ibid.) This was because when a jury heard the original two offenses, it 

acquitted the defendant, however, when a jury heard all four offenses, it convicted. (Id. 
24. 

at pp. 124-125.) Here significant evidence implicated Richie in the prior offenses and the 

prior offenses were not similar in nature to the charged offenses. Thus we find 

Ogunmola unpersuasive here. 

 Regarding the evidence of the prior convictions themselves, we note the only 

mention of them was during Vanderhyde’s cross-examination. The prosecutor simply 

asked if Vanderhyde was aware of Richie’s prior convictions for petty theft and giving 

false information to a peace officer and if that information changed his opinion that 

Richie was a good person. No other mention of the prior convictions was made during 

the trial. There was never another mention of the convictions during later questioning, 

nor was there any mention of them during closing argument. 

 In arguing the case was closely balanced, Richie cites the length of the jury’s 

deliberations. We conclude the length of the jury deliberations suggested the evidence 

against Richie was strong. Despite Richie’s argument otherwise, it is apparent the jury 

only deliberated for approximately one and one-half hours before reaching a verdict. The 

jury initially began its deliberations sometime in the afternoon of April 17. The court 

allowed the jurors to deliberate for a short time3 before reconvening and questioning one 

of the sitting jurors about a preplanned vacation. As the juror had a flight leaving the 

following morning, the court excused that juror and replaced him with one of the 

alternates. The court then instructed the jurors they would be released for the night, but 

when they returned in the morning, they were required to begin their deliberations anew. 

The jurors were instructed to return at 9:00 a.m. the next day. The next morning, the jury 

informed the court it had reached a verdict. The note informing the court of this 

development noted the time was 10:35 a.m. Thus it appears the jury deliberated for 

approximately one and one-half hours. 

 

3Based upon the statements by the trial court, it appears the court only allowed the jury to 

deliberate for approximately 25 minutes. 
25. 

 The jury had heard evidence from eight witnesses over a number of days and was 

tasked with deciding whether each of the two defendants had committed two separate 

crimes. Given the length of evidence, the number of charges and defendants, and the fact 

the jury asked no questions, a one-and-one-half-hour deliberation indicates the case 

against Richie was quite strong. 

 Considering the entirety of the case, we find no reasonable probability Richie 

would have received a more favorable outcome had the evidence of the prior convictions 

been excluded. Thus, any error was harmless. 

V. Defendants’ Accounts Receivable Fee Must Be Reduced 

 At sentencing the trial court imposed an accounts receivable fee of $45 pursuant to 

former section 1205, subdivision (d) on each defendant. Fees and fines totaling $1,565 

were imposed upon each defendant at sentencing. Defendants argue the fee in this case 

exceeded the statutory maximum and further was inapplicable in this case. Plaintiff 

concedes the fee exceeded the statutory maximum and must therefore be reduced, 

however, argues the fee was otherwise properly imposed. We agree the fee exceeded the 

statutory maximum and will reduce it accordingly. 

 Former section 1205 was amended after defendants were sentenced in this case. 

Therefore, we will address the version of section 1205 in effect at both the time the 

crimes were committed and when defendants were sentenced. The applicable provisions 

were as follows: 

 “(d) The defendant shall pay to the clerk of the court or the 

collecting agency a fee for the processing of installment accounts. This fee 

shall equal the administrative and clerical costs, as determined by the board 

of supervisors, or by the court, depending on which entity administers the 

account. The defendant shall pay to the clerk of the court or the collecting 

agency the fee established for the processing of the accounts receivable that 

are not to be paid in installments. The fee shall equal the administrative and 

clerical costs, as determined by the board of supervisors, or by the court, 

depending on which entity administers the account, except that the fee shall 

not exceed thirty dollars ($30). 
26. 

 “(e) This section shall only apply to restitution fines and restitution 

orders if the defendant has defaulted on the payment of other fines.” 

(Former § 1205, subds. (d)-(e); see Stats. 2009, ch. 606, § 9, p. 3052.) 

 Defendants argue that when read together, former section 1205, subdivisions (d) 

and (e) do not allow for an accounts receivable fee unless the defendant has defaulted on 

other fines. We disagree. In construing the meaning of a statute, we begin by looking at 

the statutory language to determine the legislative intent. We give the words their 

ordinary meaning, and where the statutory language is clear and unambiguous, we do not 

go beyond the plain meaning of the statute. (Green v. State of California (2007) 42 

Cal.4th 254, 260.) 

 Looking to the plain meaning of former section 1205, subdivision (e), it is 

apparent the subdivision does not limit the applicability of the section as a whole only to 

restitution fines. Rather, it specifies the section is applicable to restitution fines and 

orders only when the defendant has defaulted on other fines. In other words, former 

section 1205, subdivision (e) only addresses when the section may be applicable to 

restitution fines and orders, it does not address the applicability of the section to other 

types of fines. Subdivision (e) does not require a prior default to apply to fines other than 

restitution fines. Here, the court imposed a $240 restitution fine that comprised only a 

portion of the overall fines imposed by the court. Thus the remaining fines were subject 

to the accounts receivable fee provided for in former section 1205, subdivision (d). As 

the statute only allows for a maximum fee of $30, we will reduce the fee accordingly. 

VI. Defendants Were Not Denied Their Confrontation Rights 

 Defendants argue their right to confront and cross-examine witnesses was violated 

when the trial court allowed the prosecution to admit documents establishing their prior 

convictions. We disagree. 

 At trial, Vanderhyde sought to exclude the admission of the section 969b packets, 

citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and argued the admission 

of the documents violated his right to confront and cross-examine the witnesses against 
27. 

him. Counsel also cited the recent Washington Supreme Court case of State v. Jasper

(2012) 174 Wn.2d 96 [271 P.3d 876], in support of the argument. Richie joined in the 

objection. The trial court held the documents were admissible. 

 In Crawford, the United States Supreme Court overruled decades of precedent and 

held “testimonial” out-of-court statements could not be admitted against a defendant 

unless the witness was unavailable to testify and the defendant had a prior opportunity to 

cross-examine the witness. (Crawford, supra, 541 U.S. at p. 68.) Crawford expressly 

declined to “spell out a comprehensive definition of ‘testimonial.’” (Ibid.) The court did 

generally describe testimonial statements as those “‘that were made under circumstances 

which would lead an objective witness reasonably to believe that the statement would be 

available for use at a later trial.’” (Id. at pp. 51-52.) This “applies at a minimum to prior 

testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police 

interrogations.” (Id. at p. 68.) 

 After Crawford was decided, the issue of whether the admission of a record of 

prior conviction, using the procedure authorized by section 969b, violated the 

confrontation clause was addressed in People v. Taulton (2005) 129 Cal.App.4th 1218. 

The court addressed whether the records constituted testimonial statements. Taulton

pointed out Crawford itself used business records as an example of a statement that is not 

testimonial. (People v. Taulton, supra, at p. 1224.) Such records are not testimonial 

because the purpose of the writing is to record an act relating to the business, not to 

provide evidence in a criminal trial. (Ibid.) “The fact that such records may, at times, 

become relevant evidence in a criminal trial, or even that such future use may be 

foreseeable, does not change the purpose for which the records were prepared.” (Ibid.) 

Taulton held records of a prior conviction as described in section 969b are not 

testimonial because the documents are “prepared to document acts and events relating to 

convictions and imprisonments. Although they may ultimately be used in criminal 

proceedings, as the documents were here, they are not prepared for the purpose of 

providing evidence in criminal trials or for determining whether criminal charges should 
28. 

issue.” (People v. Taulton, supra, 129 Cal.App.4th at p. 1225.) Inexplicably, defendants 

do not address the court’s holding in Taulton nor attempt to distinguish it in any way. 

 After Taulton was decided, the Supreme Court addressed the issue of what 

constitutes testimonial statements within the meaning of the Sixth Amendment in several 

cases (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305; Bullcoming v. New Mexico

(2011) 564 U.S. ___ [131 S.Ct. 2705]; Williams v. Illinois (2012) 567 U.S. ___ [132 

S.Ct. 2221]), however, the court still has not agreed upon a comprehensive definition of 

the term “testimonial.” Nevertheless, as our high court has recently noted, the United 

States Supreme Court opinions have made it clear that in order to be “testimonial” a 

statement must possess two critical components: (1) it “must have been made with some 

degree of formality or solemnity” and (2) its “primary purpose pertains in some fashion 

to a criminal prosecution.” (People v. Lopez (2012) 55 Cal.4th 569, 581, 582.) 

 In arguing the section 969b packets are testimonial, defendants primarily rely upon 

the Supreme Court’s opinion in Melendez-Diaz v. Massachusetts, which held the 

admission of a forensic analyst’s affidavit reporting the result of a chemical test upon a 

seized substance constituted a testimonial statement. (Melendez-Diaz v. Massachusetts, 

supra, 557 U.S. at pp. 310-311.) In Melendez-Diaz, the defendant was charged with 

distributing and trafficking cocaine. At trial, the trial court admitted three “certificates of 

analysis” listing the results from the seized substances. These certificates reported the 

weight of the substance and that the substances had been examined and found to contain 

cocaine. (Id. at p. 308.) In determining whether the documents violated the 

confrontation clause, the court explained there “is little doubt that the documents at issue 

in this case fall within the ‘core class of testimonial statements.’” (Id. at p. 310.) The 

documents were sworn before a notary and were clearly affidavits made for the purpose 

of proving some fact. (Id. at p. 310.) Further, the court explained, the documents were 

admitted to prove the substance recovered was cocaine and the certificates were 

“functionally identical to live, in-court testimony, doing ‘precisely what a witness does 

on direct examination.’” (Id. at pp. 310-311.) 
29. 

 In addressing the primary purpose of the affidavits, the court explained the “sole 

purpose of the affidavits was to provide ‘prima facie evidence of the composition, 

quality, and the net weight’ of the analyzed substance.” (Melendez-Diaz v. 

Massachusetts, supra, 557 U.S. at p. 311.) Thus, the documents were made for the 

purpose of being used at trial and, therefore, testimonial. The affidavits could not be 

considered business records, which are typically considered nontestimonial, because 

although kept in the regular course of business, they were “‘calculated for use essentially 

in the court, not in the business.’” (Id. at pp. 321-322.) 

 Curiously absent from defendants’ briefs is any mention that the validity of People 

v. Taulton’s holding, in light of the Supreme Court’s opinion in Melendez-Diaz, was 

addressed by People v. Moreno (2011) 192 Cal.App.4th 692 (Moreno). Moreno agreed 

with the conclusion in Taulton that records of prior convictions are business records and, 

therefore, nontestimonial statements. (Moreno, supra, at p. 710.) Such documents are 

not prepared for the purpose of use in a future court proceeding; rather, they are “created 

primarily for the administrative purposes of the Department of Corrections and 

Rehabilitation.” (Ibid.) Indeed, Moreno explained, “Melendez-Diaz strengthens 

Taulton’s holding because, as the high court made clear, documents ‘created for the 

administration of an entity’s affairs and not for the purpose of establishing or providing 

some fact at trial ... are not testimonial.’” (Id. at p. 711.) 

Moreno also addressed defendants’ argument that because section 969b authorizes 

the use of such records expressly for the purpose of proving a prior conviction at trial, the 

documents must be created for the purpose of being used as evidence at trial. As Moreno

explained, the statute simply describes “the limited evidentiary purpose for which the 

documents may be introduced at trial, not the reason for their existence.” (Moreno, 

supra, 192 Cal.App.4th at p. 711.) 

Moreno also rejected defendants’ argument the clerk’s certification of the 

documents is testimonial. As Melendez-Diaz explained, a clerk may “by affidavit 

authenticate or provide a copy of an otherwise admissible record, but could not ... create
30. 

a record for the sole purpose of providing evidence against a defendant.” (Melendez-Diaz 

v. Massachusetts, supra, 557 U.S. at pp. 322-323.) Moreno concluded the “clerk’s 

certification of the materials in the 969b packet ... is precisely the kind of authenticating 

affidavit approved of in Melendez-Diaz.” (Moreno, supra, 192 Cal.App.4th at p. 711.) 

 The holdings in Taulton and Moreno have been routinely followed in California. 

(See, e.g., People v. Perez (2011) 195 Cal.App.4th 801; People v. Larson (2011) 194 

Cal.App.4th 832.) We agree with the analysis of these cases and likewise adopt it here. 

Thus, we conclude the admission of the records of conviction in this case did not violate 

defendants’ rights of confrontation and cross-examination as the records themselves 

cannot be considered testimonial statements. 

 To the extent defendants rely upon State v. Jasper, supra, 174 Wn.2d 96 [271 P.3d 

876] to support their argument, we find that case clearly distinguishable. Jasper dealt 

with an entirely different type of document, namely, a clerk’s certification verifying the 

absence of a record. This type of certification was also specifically addressed in 

Melendez-Diaz v. Massachusetts, which explained such a “statement would serve as 

substantive evidence against the defendant whose guilt depended on the nonexistence of 

the record for which the clerk searched.” (Melendez-Diaz v. Massachusetts, supra, 557 

U.S. at p. 323.) Jasper concluded such a certification, was created for the “sole purpose 

of establishing critical facts at trial” and therefore was testimonial within the meaning of 

the Sixth Amendment. (Jasper, supra, at p. 115 [271 P.3d at p. 886].) As Jasper

addressed a wholly different class of documents from those presented in this case, its 

reasoning is inapplicable to the present case. 

 The documents presented here were nontestimonial, therefore their admission did 

not violate defendants’ right to confront and cross-examine the witnesses against them. 

(People v. Perez, supra, 195 Cal.App.4th at pp. 803-804; People v. Larson, supra, 194 

Cal.App.4th at pp. 836-838; Moreno, supra, 192 Cal.App.4th at pp. 710-711; People v. 

Taulton, supra, 129 Cal.App.4th at pp. 1224-1225.) 
31. 

VII. The Evidence Was Sufficient to Support Vanderhyde’s Conviction 

 Vanderhyde contends the evidence was insufficient to support the inference he 

was involved in the cultivation of the marijuana found on the property. He argues there 

was no reason to disbelieve his testimony he did not know there were marijuana plants 

growing outside, and the fact he had a paper with marijuana growing instructions on his 

person was insufficient to support the inference he was involved in cultivating the plants. 

We disagree. 

 When a defendant challenges the sufficiency of the “evidence to support the 

judgment, our review is circumscribed. [Citation.] We review the whole record most 

favorably to the judgment to determine whether there is substantial evidence—that is, 

evidence that is reasonable, credible, and of solid value—from which a reasonable trier of 

fact could have made the requisite finding under the governing standard of proof.” (In re 

Jerry M. (1997) 59 Cal.App.4th 289, 298.) Further, we review “the evidence in the light 

most favorable to the prosecution, [asking whether] any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. [Citation.] This 

familiar standard gives full play to the responsibility of the trier of fact fairly to resolve 

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from 

basic facts to ultimate facts. Once a defendant has been found guilty of the crime 

charged, the factfinder’s role as weigher of the evidence is preserved through a legal 

conclusion that upon judicial review all of the evidence is to be considered in the light 

most favorable to the prosecution.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) 

“Before a judgment of conviction can be set aside for insufficiency of the evidence to 

support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever 

is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th 

1758, 1765.) 

 Vanderhyde does not dispute the elements of marijuana cultivation were proven, 

only that the evidence did not support the inference he either cultivated the marijuana or 

aided and abetted in its cultivation. In order to prove the crime of marijuana cultivation, 
32. 

the People must prove the defendant cultivated one or more marijuana plants and the 

defendant knew the substance cultivated was marijuana. (CALCRIM No. 2370.) Here 

the evidence established there were seven marijuana plants planted in pots outside along 

a wall of the back house. Two of the plants were mature and were three to four feet tall, 

while the others were immature and ranged in size from 5 to 18 inches. Some were 

described as just sprouting. Further, there was an area of fresh soil nearby covered by a 

tarp. 

 Vanderhyde bases his claim primarily on two arguments. First, he claims, because 

he testified the methamphetamine belonged to him but claimed he did not see or have any 

knowledge of the marijuana plants, there was “no sensible inference on this evidence 

other than that [he] was being truthful.” We disagree. As Vanderhyde concedes, the jury 

was entitled to accept some, but not all of his testimony as true. As the jury was the 

ultimate arbiter of credibility, it was of course free to reject his testimony that he did not 

know of the marijuana’s presence, solely possessed all the methamphetamine, and 

possessed it only for personal use. 

 Vanderhyde next claims his testimony about his limited mobility precluded an 

inference he was engaged in the cultivation of the plants. Not so. While the evidence 

established Vanderhyde had injured his leg, there was also testimony he was able to 

move about on crutches. He testified that after 10 days he was well enough to move from 

Richie’s bed to the floor. Also, he testified he smoked his methamphetamine in the 

bathroom to keep it from Richie. Thus, since Vanderhyde was mobile enough to move 

freely to the bathroom to smoke methamphetamine undetected during his stay, the jury 

could infer he was likewise mobile enough to care for the marijuana plants outside of the 

residence. Vanderhyde testified he had been staying at Richie’s residence continuously 

since April 28, 2011, just over two weeks prior to the search. Some of the marijuana 

plants had just sprouted, according to Funderburk, thus leading to an inference they were 

planted recently. Furthermore, the fact there was fresh soil outside could lead to the 
33. 

reasonable inference that preparations were being made to move the plants from pots to 

the ground. 

 The evidence at trial clearly established Vanderhyde both smoked marijuana, 

possessed the processed marijuana found inside the residence, and had an interest in 

growing marijuana. At the time of his arrest, Vanderhyde possessed instructions on how 

to grow marijuana. The facts that he had a clear interest in growing marijuana, had 

actually taken steps to research how to grow marijuana, admitted to using and possessing 

marijuana all led to the reasonable inference he was engaged in growing the marijuana 

found outside of the house. Thus, we reject his claim. 

DISPOSITION 

 The section 1205 accounts receivable fee of $45 is reduced to $30 for both 

defendants. The trial court is directed to issue a corrected minute order reflecting the 

modification. As modified, the judgments are affirmed. 

 __________________________ 

PEÑA, J. 

WE CONCUR: 

 ________________________________ 

CORNELL, Acting P.J. 

 ________________________________ 

GOMES, J.