P. v. Chaidez
Filed 6/2/08 P. v. Chaidez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
Plaintiff and Respondent,
Defendant and Appellant.
(Super. Ct. No. SCD193143)
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.
A jury convicted Guillermo Chaidez of selling or furnishing more than 57 grams of methamphetamine. (Health & Saf. Code, 11379, subd. (a); Pen. Code, 1203.073, subd. (b)(2).) He admitted he had a prison prior conviction (Pen. Code, 667.5, subd. (b)) and was sentenced to a total term of four years. He contends the court should have granted a mistrial because a witness testified to inadmissible hearsay.
Drug Enforcement Administration Special Agent Gabriel Hill, working undercover, engaged in a series of drug transactions with Lonnie Anderson from March to August 2005. Hill negotiated with Anderson to purchase four pounds of methamphetamine but they agreed Hill would first purchase a quarter pound of methamphetamine as a representative sample for $2,500. Anderson told Hill that his source for drugs would be present during the transaction and that this person also would be a good source for guns.
Hill met Anderson at a parking lot on June 7, 2005, at about 4:30 p.m. Anderson waved over a Silverado truck to their location. Chaidez was driving the truck and Fili Usini was sitting in the front passenger seat. Hill and Anderson went to the passenger side of the truck, where Hill introduced himself. Usini had the drugs in his pocket and gave them to Hill. Hill then gave Usini the money, asking him to count it and telling him that he and Anderson had arranged that the cost would be $2,300, rather than $2,500. Usini was surprised by the reduction in the amount and did not want to accept it. He looked over to Chaidez who nodded his head. Hill interpreted this interaction as indicating Chaidez's approval. Usini then accepted the money and after he finished counting it, put it in his pocket. Anderson got in Chaidez's truck. Chaidez started to drive away, but Hill stopped the truck and approached the driver's side. Hill asked Anderson about purchasing guns. During this conversation, Chaidez did not say anything, but he looked at Hill and nodded. Hill interpreted Chaidez's conduct as indicating his approval. The truck then left.
Two minutes later, Chaidez dropped Anderson and Usini at an intersection very near Anderson's home. About 35 minutes later, the police stopped Chaidez for a traffic violation. Chaidez had $2,100 in hundred dollar bills in his pocket and the serial numbers of the bills matched the currency Hill had given to Usini. Four $50 bills were not recovered.
Two days later, Hill attempted to negotiate a purchase of methamphetamine from Anderson and Usini, but they were unable to provide any drugs and indicated that their source had been arrested.
Anderson was arrested in August 2005. In a post-arrest statement he told Hill that Chaidez had been his source for the drugs on June 7, 2005.
Hill testified that methamphetamine sold for personal use generally has a purity of 13 to 21 percent methamphetamine and an individual would use .05 to .10 grams at one time. The methamphetamine he purchased on June 7, 2005, had a net weight of 111.6 grams and a purity of 82 percent methamphetamine. Hill also testified drug dealers are never accompanied by people who are unaware of the drug transaction because it creates a serious security issue; the person might call the police, scream or shout.
Chaidez's wife testified that during the late afternoon of June 7, 2005, Chaidez told her he was going to get some money for a brown Cadillac they were going to sell. She was surprised when she learned he had been arrested.
The police officer who arrested Chaidez asked Chaidez about the source of the money. Chaidez's explanation was that he worked. He did not mention anything about selling a car.
Chaidez contends the court erred in denying his motion for a mistrial following the introduction of inadmissible hearsay evidence, that is, Anderson's post-arrest statement identifying Chaidez as his source. We disagree as the court was never presented with this issue. Chaidez sought a mistrial on a different basis and failed to preserve his claim for appeal.
During cross-examination, the defense asked Hill, "But, . . . Anderson, in any post-arrest statement never said to you that . . . Chaidez was his source of supply on June 7th, did he?" Hill answered, "Yes," explaining that after Anderson was arrested, Anderson had confirmed that Usini had been "just a runner" and the driver was "the source." Hill also testified this information was not in his report of Anderson's post-arrest statements, explaining that there had been so many conversations and deals with Anderson and "if [he] wrote every single word . . . you would get a novel during a post-arrest statement."
Defense counsel moved for a mistrial, complaining the prosecutor had not provided reports of Anderson's statements that Chaidez was his source. The prosecutor stated he had provided the defense with all reports and he had not previously known of this information. The prosecutor and defense counsel confirmed that Hill's report of Anderson's post-arrest statements had been completely disclosed to the defense and did not include the statement identifying Chaidez as the source of drugs on June 7, 2005. The court denied the motion for a mistrial, characterizing it as being based on the improper withholding of discovery.
On appeal, Chaidez does not dispute the propriety of the court's ruling there was no improper discovery. Instead, he urges a wholly different theory, that is, that Hill's testimony about Anderson's post-arrest statements constituted inadmissible hearsay. Objections to hearsay evidence, however, must be raised below and a failure to object waives the issue for appeal. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611 ["It is hornbook law that a timely and specific objection is required to prevent the consideration of certain evidence; the failure to object at all waives any claim of error"]; People v. Brown (2003) 31 Cal.4th 518, 546 [due process claim waived by failure to raise at trial].) "The reason for this rule is that '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' " (People v. French (2008) 43 Cal.4th 36, 46.)
Had Chaidez made a timely objection, the prosecutor could have justified the evidence as admissible under the hearsay exception for prior inconsistent statements. The Evidence Code generally allows a hearsay statement to be introduced if it is inconsistent with the witness's testimony and the witness was given an opportunity to explain or deny the statement. (Evid. Code, 1235, 770.) Inconsistency will be implied when a witness's trial testimony that he or she does not remember an event is deliberate evasion and untruthfulness. (People v. Sapp (2003) 31 Cal.4th 240, 296.) At trial, Anderson's testimony was generally evasive. He claimed not to remember any details of the drug transactions, basically attributing his lack of memory to his daily drug use, and specifically denied knowing Chaidez. Thus, his prior statement identifying Chaidez as his source could have been established as inconsistent with his trial testimony.
Further, there was abundant other evidence establishing Chaidez's participation in the drug deal. He was the driver of the truck, remained in the truck while the deal was transacted, nodded his approval of the price of $2,300, and, significantly, had the vast bulk of the money from the transaction in his pocket when he was arrested. Additionally, his claim that the money was from the sale of a car was impeached by his statement to the police that he had received the money from working. There is no reasonable probability the jury convicted Chaidez based on Anderson's post-arrest statement rather than the other strong other evidence establishing his guilt.
The judgment is affirmed.
McCONNELL, P. J.
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