People v. McCloud
E065359
| Cal. Ct. App. | Sep 27, 2017Background
- In Sept 2012 police conducted a probation search at a residence; they performed a protective sweep, saw contraband in plain view in a bedroom rented by Bobby Johnnie McCloud, obtained his consent, and found cocaine, packaging, scales, $750 in small bills, and a loaded .22 revolver. McCloud was arrested.
- In Feb 2013, while on bail, officers found McCloud with 1.4 grams of crack cocaine, two cell phones, a stun gun, and $45 in a car; expert testimony about intent to sell was equivocal for the 2013 incident.
- Jury convicted McCloud of possession for sale (2012), transportation for sale (2013), and two misdemeanors; he was acquitted on several firearm felonies. At bench trial the court found multiple prior strikes and imposed a total term of 28 years 8 months to life (including a 25-to-life super-strike term for transportation).
- Defense theory: McCloud was an addict who used, not sold, and his cousin testified he sold McCloud the cocaine; expert testimony admitted both possibilities for the 2013 incident.
- Trial court instruction on the 2013 transportation offense used a pre-2014 definition of "transport" (any movement) and omitted the post-2014 statutory element requiring transportation be "for sale." Parties agreed omission was error; dispute was whether it was harmless.
- Court denied suppression of 2012-search evidence: protective sweep was supported by reasonable suspicion; later search of McCloud’s phone relied on binding precedent at the time (People v. Diaz), so good-faith exception applied to Riley change.
Issues
| Issue | People’s Argument | McCloud’s Argument | Held |
|---|---|---|---|
| Whether omission of "for sale" element from transportation instruction was harmless | Evidence of intent to sell was overwhelming (expert leaned to sale; presence of two phones and stun gun) | Instructional omission was prejudicial because evidence of intent was equivocal and defense was that he was a user | Reversed transportation conviction: omission was prejudicial because record contained evidence a rational juror could find use, not sale |
| Whether evidence from 2012 bedroom search (drugs, paraphernalia, cash, gun) should be suppressed | Protective sweep and plain view/consent made seizure lawful | Officers lacked warrant and should have sought one once they learned defendant was not the probationer | Affirmed admission: protective sweep reasonable under circumstances; consent rendered later gun search valid |
| Whether cell-phone text messages were admissible post-Riley | Search was conducted in objectively reasonable reliance on then-binding precedent (Diaz); good-faith exception applies | Riley requires warrant for phone searches; messages should be suppressed | Admissible: good-faith exception applied because Diaz was binding at time and search conformed to it |
| Whether allowing correction of a clerical statute citation in prior-strike allegations after verdict violated due process | Citation error was clerical; pleading language and earlier pleadings gave adequate notice; correction simply fixed clerical error | Correction increased exposure (to super-strikes) after jury discharged and prejudiced defense strategy | Denied relief: amendment was clerical, defendant had notice from plea language and earlier pleadings, and Tindall does not bar correcting clerical errors |
Key Cases Cited
- People v. Mil, 53 Cal.4th 400 (explains harmlessness review for omitted elements and asks whether record could rationally lead to contrary finding)
- People v. Merritt, 2 Cal.5th 819 (omitted-element error held harmless where elements were undisputed and evidence was overwhelming)
- Neder v. United States, 527 U.S. 1 (harmless-beyond-a-reasonable-doubt standard for omitted elements)
- Chapman v. California, 386 U.S. 18 (harmless beyond a reasonable doubt standard)
- People v. Ledesma, 106 Cal.App.4th 857 (protective sweep may precede probation search; totality of circumstances analysis)
- People v. Diaz, 51 Cal.4th 84 (pre-Riley authority allowing search of phone incident to arrest)
- Davis v. United States, 564 U.S. 229 (good-faith exception when officers reasonably rely on binding precedent)
- People v. Macabeo, 1 Cal.5th 1206 (limits on good-faith reliance where search did not satisfy binding precedent)
- People v. Tindall, 24 Cal.4th 767 (limits on amending accusatory pleading to add priors after jury discharged; distinguished here)