People v. McCloud
E065359M
| Cal. Ct. App. | Oct 5, 2017Background
- In Sept. 2012 officers executed a probation search at a residence where McCloud rented a room; during a protective sweep they observed drug evidence in his room and, after obtaining consent, found crack cocaine, packaging, a scale, cash, and a loaded .22 under the mattress. McCloud was arrested.
- In Feb. 2013, while on bail for the 2012 arrest, officers found 1.4 grams of crack cocaine, two cell phones, a stun gun, and cash in McCloud’s car; he was charged with transportation for sale.
- Jury convicted McCloud of possession for sale (2012), transportation for sale (2013), and two misdemeanors; acquitted on three firearm-related felonies. Court later found multiple prior strikes and imposed sentence including 25 years to life for transportation (plus enhancements), total 28 years 8 months to life.
- On appeal McCloud raised three claims: (1) the transportation-for-sale instruction omitted the statutory “for sale” element enacted in 2014; (2) the 2012-search evidence (and phone texts) should have been suppressed as warrantless; and (3) the court erred by allowing correction of a clerical statutory citation to prior-strike allegations after verdict.
- The court reversed the 2013 transportation-for-sale conviction because the jury was not instructed that “transportation” meant movement for the purpose of sale and the omitted element was not supported by overwhelming evidence; it affirmed all other rulings, including denial of suppression and correction of the clerical error, and remanded for resentencing or retrial on the transportation count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of a "for sale" element in the transportation instruction was prejudicial | Instructional error harmless because evidence of intent to sell was overwhelming | Error prejudicial because evidence of intent to sell was conflicted and defense theory was use/addiction | Reversed transportation conviction: omission prejudicial under Chapman/Neder/Mil standards |
| Whether evidence from 2012 protective sweep and subsequent consent search (including phone texts) should be suppressed | Protective sweep and consent lawful; phone search valid under binding precedent (Diaz) and good-faith exception to Riley | Sweep exceeded scope; phone search required warrant under Riley | Affirmed admission: sweep supported by reasonable suspicion; consent valid; phone search justified by Diaz reliance and good-faith exception |
| Whether correction of a clerical statutory subdivision in the information to reflect prior super-strikes violated due process | Clerical correction merely fixed a citation error; charged facts made priors clear; defendant had notice | Correction altered exposure and deprived meaningful notice after jury discharge | Affirmed correction: description, prior pleadings, and defense awareness cured any defect; not a Tindall-type augmentation |
| Remedy and disposition for transportation conviction | N/A (People sought rehearing asking about subordinate/principal sentencing issue) | N/A | Transportation conviction reversed; all other convictions affirmed; remand for resentencing or retrial on transportation count at prosecutor’s option |
Key Cases Cited
- People v. Mil, 53 Cal.4th 400 (explains harmlessness review for omitted elements and standard to ask whether record could rationally lead to contrary finding)
- People v. Merritt, 2 Cal.5th 819 (discusses when omission of elements may be harmless due to overwhelming/uncontested proof)
- Neder v. United States, 527 U.S. 1 (harmless error standard when jury instruction omits an element)
- Chapman v. California, 386 U.S. 18 (harmless-beyond-a-reasonable-doubt standard)
- People v. Lua, 10 Cal.App.5th 1004 (discusses pre- and post-2014 statutory scope of "transport/transport for sale")
- Riley v. California, 573 U.S. 373 (cell-phone searches generally require a warrant)
- People v. Diaz, 51 Cal.4th 84 (pre-Riley controlling precedent allowing search of phone associated with arrestee incident to arrest)
- Maryland v. Buie, 494 U.S. 325 (protective sweep doctrine and reasonable-suspicion standard)
- People v. Ledesma, 106 Cal.App.4th 857 (protective sweep may precede probation search; evaluates totality of circumstances)
- People v. Macabeo, 1 Cal.5th 1206 (good-faith exception to exclusionary rule when relying on binding appellate precedent)
- People v. Tindall, 24 Cal.4th 767 (limits on amending accusatory pleading to add new priors after jury discharge)