In re C.V.

 

 

 

 

 

 

 

 

 

 

 

 

Filed 6/24/13  In re C.V. CA1/2

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

In re C.V., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,             Plaintiff and Respondent, v. C.V.,             Defendant and Appellant.	A135714         (Alameda County       Super. Ct. No. SJ1218782)

 

 

>I. INTRODUCTION

            After a contested href="http://www.fearnotlaw.com/">jurisdictional hearing, the juvenile
court found the allegations of a juvenile wardship petition alleging that
appellant had possessed a controlled substance, i.e., cocaine base, for sale to
be true.  Later, another such court
determined appellant to be a ward of the court and ordered the probation office
to find a suitable facility for him. 
Appellant appeals, claiming that the first juvenile court erred in not
admitting into evidence the testimony of two witnesses who would have href="http://www.mcmillanlaw.com/">proffered testimony questioning the
veracity of two of the officers involved in his arrest.  We find no abuse of discretion by the
juvenile court and hence affirm its orders.

II. FACTUAL AND
PROCEDURAL BACKGROUND

            On
January 28, 2012,href="#_ftn1" name="_ftnref1"
title="">[1] San Francisco Police
Officer Calvin Lew was stationed in a room on the fourth or fifth floor of a
building on Golden Gate Avenue near Hyde Street; he was serving as a “spotter,”
i.e., part of a “narcotics surveillance” operation in that area, an area well
known for the sale of drugs, especially rock cocaine.  At about 10:20 in the morning, using
binoculars to look through a window, Lew saw appellant on the north side of the
300 block of Golden Gate Avenue, about 200 feet away from Lew.  Appellant was, per Lew’s testimony, standing
face-to-face with a man later identified as David Miles.  The two were only three feet apart, according
to Lew, and appeared to be having a brief conversation.  Miles was also with another person. 

            Per
Lew’s testimony, he saw Miles hand appellant what appeared to be “paper
currency.”  Appellant then, per Lew, put
his right hand in his mouth, then lowered that hand and placed a rock-like
object into Miles’ right hand.  Lew
testified that such was a normal procedure whereby a drug dealer first conceals
and then transfers a drug, wrapped in “clear plastic,” to a buyer. 

            After
these transfers, Miles walked east on Golden Gate
Avenue, “jay-walked to the south side of the
street,” and then proceeded south on the west side of Hyde
Street.  In
so doing, he briefly removed the “rock” from his mouth, examined it, and then
put in back in his mouth.  While this was
going on, Lew notified the police “arrest team” he was working with. 

            A
member of that team, Officer Joseph Toomey, received the description of Miles
from Lew, and stopped Miles as he was nearing McAllister on Hyde
Street. 
Toomey placed a “nerve hold” on Miles and told him to spit out whatever
was in his mouth.  Miles did so, and spat
out three baggies of what were later identified to be rocks containing a total
of .08 grams of cocaine base, a “useable amount.”

            After
Miles had been arrested, Lew directed other officers in the police team to stop
and arrest appellant, who at that time was walking west on Golden
Gate Avenue toward Larkin
Street. 
Officer Herbert and his partner received that transmission and stopped
and arrested appellant at the corner of Larkin and Golden Gate.  They took him to the Tenderloin police
station, searched him, found no crack cocaine on his person, but did find $200
in cash. 

            Appellant,
then 16, testified in his own defense. 
He stated that, on the day in question, he had come to San
Francisco from his home in Oakland
to pay off a loan to a friend.  As he was
walking past the Civic Center,
appellant continued, a person apparently “a Honduran,” asked him for a
cigarette.  Appellant “handed him the
pack of cigarettes” he was carrying and then also a lighter, per the man’s
request.  That man then walked a little
bit away and began speaking to a Black male, who gave the first man some
money.  Appellant asked for, and got, his
cigarettes and lighter back, and also gave the second man a cigarette, but
stood away from both men as he thought he might be witnessing a drug sale.

            When
he was stopped and arrested by the police, a search of him disclosed a cell
phone, the package of cigarettes, a lighter, marijuana, and $217 in cash in his
wallet.  Appellant, however, denied that
he had sold any cocaine that day or at any other time, and stated that the
marijuana was “for my own use.” 

            The
parties stipulated that the court could read and consider two written
statements.  In one, a friend of
appellant’s, Franklin Perez, stated that he had previously loaned appellant
$200 to pay his rent.  On the day in
question, appellant had called Perez to tell him he was in the Civic Center
area and wanted to repay Perez the $200 he owed him.  In a second statement, appellant’s nephew and
roommate, stated that appellant had told him that he had borrowed $200 “from a
friend named Franklin” to pay his share of the rent.  He also stated that appellant “does not sell
drugs and has never been arrested before.” 


            In
rebuttal, Officer Lew testified that (1) the person who was with Miles on the
day in question was a woman named Michele Johnson, (2) appellant was the only
Latino male that he saw in the area in question that day, and (3) he did not
see appellant give either cigarettes or a lighter to anyone.

            During
the course of the jurisdictional hearing, appellant attempted to call two
witnesses to testify as to the credibility of Officers Lew and Herbert.  The first was named Virginia Roberson, and
she allegedly would have testified that Officer Lew had caused her arrest for
allegedly selling crack cocaine but who, when arrested, was found not to
possess any such drugs (although, apparently, another woman did).

            The
other proffered witness was a man named Marcella, who allegedly would have
testified that Officer Herbert had stated to him that “he searches anyone
whenever he feels like it” and that “he doesn’t need consent” and that “he
doesn’t need reasonable or probable cause . . . .”

            The
court excluded the first evidence, i.e., the proffered testimony of Ms.
Roberson on Evidence Code section 352 (section 352) grounds, i.e., on the basis
that any marginal relevance was “outweighed by potential collateral issues and
undue consumption of time.”  It similarly
excluded the proffered testimony of Mr. Marcella on the basis of relevancy and
stated that, even if marginally relevant, it would consume unwarranted time.

            On
the basis of the evidence presented the preceding day (and summarized above),
on April 12 the juvenile court found the allegations of count 1 of the petition
to be “true beyond a reasonable doubt.” 
The following day, it ordered the case transferred to the Alameda County
juvenile court because of appellant’s residence there. 

            On
April 17, the Alameda County Superior Court accepted the transfer of the case
to its docket, in view of appellant’s residency there.

            On
May 1, the Alameda County juvenile court adjudged appellant to be a ward of the
court and placed him on probation for placement in a suitable foster home to be
determined later.

            On
June 6, that court was informed that appellant had been placed in custody in
Seattle, Washington, by the federal Immigration and Customs Enforcement
Agency.  On June 13, the court then
dismissed the previously-ordered wardship and terminated appellant’s probation.

            The
same day, appellant filed a timely notice of appeal.

III. DISCUSSION

            We
reject appellant’s claims of error by the juvenile court in not permitting the
testimony of Roberson and Marcella.  The
rulings of that court were, clearly, correct under both the standard of
relevance provided by Evidence Code section 210 and the broad discretion
granted to the trial court regarding the admission of evidence by section
352.  Finally, the exclusion of evidence
by a trial court mandates reversal when, but only when, that exclusion caused a
miscarriage of justice.  (Evid. Code, §§ 353, subd. (b), 354.)

            Our
Supreme Court recently summarized these principles in People v. Richardson (2008) 43 Cal.4th 959, 1000-1001, thusly:  “ â€˜ â€œ â€˜Only relevant evidence
is admissible [citations], and all relevant evidence is admissible unless
excluded under the federal or California Constitution or by statute.  [Citations.] 
Relevant evidence is defined in Evidence Code section 210 as evidence
“having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.”  The test of relevance is whether the evidence
tends  “ â€˜logically, naturally, and
by reasonable inference’ to establish material
facts . . . . 
[Citations.]” [Citation.]  The
trial court has broad discretion in determining the relevance of
evidence . . . .’ â€ â€™  [Citation.] 
Relevant evidence may nonetheless be excluded under [section 352] at the
trial court’s discretion if ‘its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.’  We
review rulings under this section for abuse of discretion.  [Citation.] 
[¶] It is also well settled that the erroneous admission or
exclusion of evidence does not require reversal except where the error or
errors caused a miscarriage of justice. 
(Evid. Code §§ 353, subd. (b), 354.)”  (See also People
v. Ledesma (2006) 39 Cal.4th 641, 701; People
v. Carter (2005) 36 Cal.4th 1114, 1166-1167; People v. Crittenden (1994) 9 Cal.4th 83, 132; People v. Fields (2009) 175 Cal.App.4th 1001, 1016.)

            Under
these standards, there was no error by the trial court and certainly none which
resulted in a “miscarriage of justice.” 
First of all, appellant’s proffer of the testimony of Ms. Roberson was,
apparently, intended to demonstrate, or at least suggest, that Officer Lew was
incorrect—or even was making deliberate misstatements—when he testified about
the transaction he had witnessed appellant make with Miles on the day in
question.  But in point of fact, it did
not.  Ms. Roberson did not possess any
crack cocaine when Officer Lew, also apparently “the spotter in her case”, had
allegedly seen “her sell crack cocaine and there was no crack cocaine recovered
from her.”  But this is of no relevance
at all, because defense counsel promptly admitted, in response to a question
from the court, that the person “she allegedly sold to” did in fact “have crack
cocaine on them, yes.”  That admission,
in and of itself, renders the court’s refusal to allow Ms. Roberson to testify
about the event involving her and Officer Lew clearly correct.

            Second,
the court was also correct that, under the broad discretionary standard of
section 352, it could properly determine that allowing the testimony of Ms.
Roberson would simply consume far more time than it was worth.  As the court said:  “I don’t think it’s relevant.  Really don’t. 
And if it is relevant, as I say, I think it’s outweighed by potential
collateral issues and undue consumption of time.  I’ll exclude it pursuant to [section]
352.” 

            In
view of both (1) the dubious relevance of the fact that Ms. Roberson had no
cocaine on her (although the other person did) and (2) the broad discretion
granted a trial court under section 352, there clearly was no error in the
juvenile court’s ruling rejecting admission of her testimony.  (See, e.g., People v. Dement (2011) 53 Cal.4th 1, 51-52; People v. Gurule (2002) 28 Cal.4th 557, 619; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

            The
same holds true regarding the proffered testimony of Marcella, who apparently
was going to testify “that this officer [Officer Herbert] made statements to
him that he searches any one whenever he feels like it; that he does—that he
doesn’t need consent; that he doesn’t need reasonable or probable
cause . . . .”  The
trial  court promptly rejected this
proffer because “[h]ere he did have probable cause.  He made an arrest.  And you don’t need consent if you search
someone pursuant to an arrest.”

            Again,
the trial court was correct in excluding this proffered testimony.

            First
of all, any such testimony would not have been relevant to whether Officer
Herbert properly arrested appellant.  As
noted in the summary of the facts set forth above, Officer Herbert’s search of
appellant was conducted after (1) Lew
reported to Herbert what he had seen take place between appellant and Miles and
(2) appellant had been arrested.  Further
the post-arrest search of appellant had produced, as noted above, over $200 in
cash.  Thus, to put it simply, nothing
that Officer Herbert might have said to or in the presence of Marcella was at
all relevant to whether there was anything unlawful about the search he conducted
of appellant.

            Second,
“the admissibility of any past misconduct for impeachment is limited at the
outset by the relevance requirement of moral
turpitude.”  (People v. Wheeler (1992) 4 Cal.4th 284, 296.)  The alleged statement by Officer Herbert
clearly does not fall into that category. 
Officer Herbert’s conduct in this case consisted of making an arrest and
a subsequent search (a search which produced incriminating evidence) on the
basis of eyewitness information supplied him by another officer.  Such does not, even remotely, falls into the
category of “moral turpitude.”

            Third
and finally, the trial court was also correct that any possible relevancy of
the testimony of Marcella would probably lead to, e.g., contradictory testimony
by Officer Herbert—and presumably others—and thus would be “outweighed by undue
consumption of time.”

            For
all these reasons, the court’s decision to exclude the very marginal proffered
testimony of Roberson and Marcella was not at all an abuse of discretion under
section 352.

            Finally,
we also reject appellant’s contentions that exclusion of the testimony of these
two witnesses (1) constituted prejudicial error and (2) deprived him of due
process.  As to the first point, for the
reasons noted above, we simply do not agree that any evidentiary error was
committed.  Further, as noted in the
Attorney-General’s brief, there was substantial evidence presented via the
testimony of Officer Lew and his colleagues that a drug deal did indeed take
place at the time and place noted above. 
Thus, any error in the exclusion of the proffered testimony of Roberson
and Marcella was clearly harmless under People
v. Watson (1956) 46 Cal.2d 818.

            We
also reject appellant’s contention that the juvenile court’s rulings regarding
the proffered testimony of Roberson and Marcella “made the hearing
fundamentally unfair to Christian and deprived him of due process.”  The proper exercise by a court of the “broad
discretion” accorded it under section 352 (see cases cited at page 6 >ante) regarding the propriety of
admitting or excluding certain evidence does not infringe upon a defendant’s
constitutional rights.  (See, e.g., >People v. Cunningham (2001) 25 Cal.4th
926, 999; People v. Fudge (1994) 7
Cal.4th 1075, 1102-1103.)  And, bearing
in mind the extremely marginal nature of the proffered testimony of Roberson
and Marcella, it surely did not do so here.

>IV. DISPOSITION

            The
orders appealed from are affirmed.

 

 

 

 

 

 

 

                                                                                    _________________________

                                                                                    Haerle,
J.

 

 

We concur:

 

 

_________________________

Kline, P.J.

 

 

_________________________

Lambden, J.