P. v. Alvarado

Filed 7/13/09 P. v. Alvarado CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

A jury convicted appellant Adriana Alvarado of transporting cocaine and possessing cocaine for sale. (Health & Saf. Code, 11351, 11352, subd. (a).) On appeal, Alvarado challenges the denial of her motion to suppress; the denial of her motions for mistrial; and the admission of prejudicial testimonial evidence. She also raises an ineffective assistance of counsel claim. We affirm the judgment.

I. FACTS

On October 17, 2007, Concord Police Detective Jim Nielsen and other officers were executing a search warrant at a Lupine Lane residence in Pleasant Hill. The officers recognized the driver of a passing car as Chas Arends, because they had seen him visit the residence during an earlier surveillance. Appellant Adriana Alvarado sat in the front passenger seat of the car. After passing the officers, Arends parked the car at the end of Lupine Lane. Suspecting that Arends might be delivering drugs to the residence, Detective Nielsen and Officer Todd Stroud approached the parked car to investigate.

Detective Nielsen approached the drivers side and Officer Stroud walked up to Alvarados side of the car. Detective Nielsen saw several bags of cocaine and a bag of pills later found to be methylenedioxymethamphetamine (also known as MDMA or ecstasy) on Arendss lap. He was looking down at the drugs, touching each bag, and moving them around, as if sorting them. Detective Nielsen also saw a metal soup can without a top on the center console between the front seats. Alvarados body was turned about 45 degrees toward Arends. She appeared to be looking at the drugs. She did not touch them, nor did she talk to Arends during the approximately five seconds that the officers observed them.

Detective Nielsen arrested Arends at gunpoint. Officer Stroud ordered Alvarado out of the car, handcuffed and searched her. Officer Stroud found a small digital scale of a type typically possessed by drug dealers in Alvarados pants pocket. Two more bags of cocaine were foundocuments and SettingsK1DCLocal SettingsTemporary Internet FilesContent.IE5M16U1D7Ocleardot[1].gif"> inside the metal can on the cars center console. Alvarado was silent at the scene of the arrest, but later denied that she was aware of what Arends was doing in the car or that she was looking at Arends when the officers approached the car.

On November 29, 2007, Alvarado and Arends were charged with transporting cocaine and possessing MDMA and cocaine for sale. (Health & Saf. Code, 11351, 11352, subd. (a).)[1] Alvarado moved to suppress the evidence of the digital scale claiming that it was found as a result of an unlawful warrantless search of her person. (Pen. Code, 1538.5.) After hearing, the trial court denied the motion to suppress, finding that probable cause existed for her arrest and that the evidence was properly found during a search incident to that arrest.

At trial, Detective Nielsen offered his expert opinion that Alvarado acted with Arends to transport and sell cocaine and ecstasy. He relied on her close proximity to Arends, her apparent awareness of what Arends was doing, her lack of emotional response during her arrest, and the fact that she never tried to proclaim her innocence as the basis of his opinion. In response to Alvarados objection, the trial judge struck the final part of Detective Nielsens testimony.

Outside the presence of the jury, defense counsel moved for a mistrial on the grounds that Detective Nielsens testimony that Alvarado never tried to proclaim her innocence was false and that he improperly commented on her postarrest silence. The trial judge denied the motion for a mistrial, ruling that her later statement to police did not render false Detective Nielsens testimony about Alvarados conduct at the time of the arrest. The court found that striking the testimony cured any error.

The parties stipulated that Alvarado knew what cocaine looked like and that it was a controlled substance. Alvarado did not testify at trial.

The jury found Alvarado guilty of transporting cocaine and possessing cocaine for sale. (Health & Saf. Code, 11351, 11352, subd. (a).) It was unable to reach a verdict on the MDMA charges, the trial court declared a mistrial on them, and the charges were dismissed. Alvarado was granted probation for three years, conditioned on serving 16 days in county jail.

II. MOTION TO SUPPRESS

On appeal, Alvarado contends that the trial court improperly denied her motion to suppress the digital scale evidence because the police officers did not have probable cause to arrest and search her. (See U.S. Const., 4th Amend.; Cal. Const., art. I, 13.) She argues that her mere presence in a vehicle with a person suspected of criminal activity is an insufficient basis to form probable cause to arrest her and search her incident to that arrest. The trial judge found that probable cause existed to arrest Alvarado, who watched Arends take inventory of a large quantity of drugs.

When we evaluate an order denying a motion to suppress, we must apply different standards of review to the different rulings implicit to that denial. First, we defer to the trial court on any question of fact. (People v. Loewen (1983)35 Cal.3d 117, 123; People v. Lawler (1973) 9 Cal.3d 156, 160.) Factual findings, whether express or implied, must be upheld if they are supported by substantial evidence. (People v. Leyba (1981)29 Cal.3d 591, 596-597.) In this matter, the trial court found that Alvarado was more than merely present in Arendss car, but that she observed him handling baggies of cocaine and MDMA. There is sufficient evidence to uphold this finding of fact.

On any questions of law, we conduct an independent review of the legal question. (People v. Loewen, supra, 35 Cal.3d at p. 123.) Anew on appeal, we assess whether the officers suspicion of probable cause was constitutionally reasonable under the circumstances of the case. (People v. Leyba, supra, 29 Cal.3d at p. 596.) To determine whether or not the arrest was reasonable, we evaluate the events leading up to the arrest and decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. (Ornelas v. United States (1996) 517 U.S. 690, 696.) Probable cause exists if facts known to an arresting officer would lead a person of ordinary care and prudence to entertain an honest, strong suspicion that an individual is guilty of a crime. (People v. Kraft (2000) 23 Cal.4th 978, 1037.)

The United States Supreme Court has held it to be entirely reasonable to infer that any or all of the occupants of a vehicle containing multiple baggies of drugs had knowledge of, and exercised dominion and control over, the drugs. Accordingly, a reasonable officer could find probable cause to believe any occupant of the vehicle was in possession of the drugs, either solely or jointly with the others. (Maryland v. Pringle (2003) 540 U.S. 366, 372.)

We are satisfied that Pringle is dispositive in the case at bar. The officers observed Alvarado and Arends in the car in the presence of drugs. Alvarado watched Arends handle a large quantity of drugs. Faced with these facts, a reasonable officer could conclude that Alvarado was not simply present, but was a participant in the crime. As there was probable cause to arrest Alvarado, the search of her person was incident to that arrest. The trial court properly denied the motion to suppress evidence of the digital scale.

III. MISTRIAL

A. Standard of Review

Alvarado contends that the trial court erroneously denied her motion for mistrial. On review of a denial of a mistrial motion, we must evaluate whether or not the trial court abused its discretion. A mistrial should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 283.) If the court is apprised of prejudice that it judges incurable by admonition or instruction, then a mistrial is properly granted. Whether a particular incident is incurably prejudicial is by its nature a speculative matter. The trial court is vested with considerable discretion in ruling on a motion for mistrial. (People v. Haskett (1982) 30 Cal.3d 841, 854.)

B. Griffin-Doyle Violation

Alvarado argues that Detective Nielsens statement that she never tried to proclaim her innocence prejudicially infringed on her Fifth Amendment right to remain silent at the scene of her arrest, thus violating Griffin-Doyle.[2] Detective Nielsen told the jury that he believed Alvarado and Arends were working together to sell and transport drugs. He explained that at the time of her arrest, she never made a claim of innocence. A court may not allow a witness or attorney to comment on a defendants failure to testify. (Griffin, supra, 380 U.S. at pp. 613-614.) Even references to a lack of testimony and suggestions that a refusal to testify indicates a defendants guilt can be improper under Griffin. (People v. Medina (1995) 11 Cal.4th 694, 755.)

However, a Griffinviolation only occurs if the challenged comment makes some reference to the defendants failure to testify. Detective Nielsen did not comment on Alvarados decision not to testify, but on her failure to protest her innocence at the time of her arrest. We are satisfied that no Griffinviolation occurred because there was no reasonable likelihood that the jury would have understood Detective Nielsens testimony as a comment on Alvarados failure to testify. (See People v. Ledesma (2006) 39 Cal.4th 641, 721.)

The prosecution is also prohibited from eliciting testimony about a defendants postarrest silence. (Doyle, supra, 426 U.S. at p. 619.) While Detective Nielsens comments could have been interpreted as commentary on Alvarados postarrest silence, the trial court immediately struck that aspect of the testimony from the record. Alvarado has not persuaded us that this response was insufficient to cure any prejudice caused by the alleged Doyle violation. Thus, the trial court properly denied the motion for mistrial alleging the Griffin-Doyle violation.

C. Misleading Testimony

Alvarado also argues that the prosecutor elicited and did not correct Detective Nielsens misleading testimony that Alvarado never protested her innocence. Alvarado claims this testimony was misleading because although she was silent at the scene of her arrest, she later gave a post-Miranda[3] statement claiming that she was unaware of what Arends was doing in the car. At trial, the prosecution asked Detective Nielsen his expert opinion about whether Alvarado was involved with Arendss drug activities. The detective responded that he thought they were acting together, offering several reasons for his opinion. One factor was that she never tried to proclaim her innocence.

We are satisfied that the trial courts acts of striking the testimony and admonishing the jury to disregard it cured any potential that the jury was improperly influenced by this testimony. This admonishment was reinforced by instructions reminding the jury that stricken testimony must be disregarded and not considered testimony for any purpose. (CALCRIM No. 222.) The court also gave defense counsel the opportunity to cross-examine Detective Nielsen about the comment, in order to eliminate any potential for improperly influencing the jury. Defense counsel declined this opportunity to do so. We find that the trial court properly denied the motion for mistrial.

IV. EXPERT OPINION

A. Objection

Alvarado contends that her conviction should be reversed and the case remanded for a new trial because Detective Nielsen should not have been allowed to offer an expert opinion that she acted with Arends to help him transport and possess cocaine and ecstasy. She argues that this opinion was an expression of her guilt on an ultimate issue at trialwhether she was an aider and abettor. However, defense counsel did not object to the testimony at trial. An appellant forfeits an evidentiary claim if no contemporaneous objection of error is made. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76; People v. Crandell (1988) 46 Cal.3d 833, 878-879.) The claim of error was forfeited.

B. Ineffective Assistance of Counsel Claim

Alternatively, Alvarado contends that trial counsel was ineffective for failing to make this objection. She claims that this testimony prejudiced her at trial on the issue of whether she was an aider and abettor. For these reasons, she argues that her attorneys failure to object deprived her of a fair trial. (See U.S. Const., 14th Amend.)

A defendant has a right to effective assistance of counsel. (U.S. Const., 6th Amend., Cal. Const., art. I,  15.) To establish a claim of incompetence of counsel, a defendant must establish that counsels representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsels error, the result of the proceeding would have been different.  (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695; People v. Ledesma (1987) 43 Cal.3d 171, 215-218; see U.S. Const., 6th & 14th Amends.; Cal. Const., art. I,  15; People v. Benavides (2005) 35 Cal.4th 69, 92-93.) To prevail, a defendant must establish incompetence of counsel by a preponderance of evidence. (People v. Ledesma, supra, 43 Cal.3d at p. 218.)

Judicial scrutiny of defense counsels performance must be highly deferential. [A] court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance . . . . (Strickland v. Washington, supra, 466 U.S. at p. 689.) The defendant must overcome the presumption that under the circumstances, the challenged action might be considered a sound tactical decision. (Ibid.; see In re Lucas (2004) 33 Cal.4th 682, 722.)

Only rarely will a failure to object provide the basis for a successful ineffective assistance of counsel claim. Such matters are within counsels discretion and rarely constitute ineffective assistance of counsel. (People v. McDermott (2002) 28 Cal.4th 946, 993.) There was ample other evidence against Alvaradoincluding her proximity to the drugs, the attention she paid to what occurred in the car, and the small digital scale found in her pocketto satisfy us that the failure to object to the challenged testimony, if unreasonable, was not prejudicial.

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] Unbeknownst to the jury, Arends pled guilty to the charges before Alvarado was tried. The jury was instructed not to be concerned with Arendss case.

[2] Griffin v. California (1965) 380 U.S. 609 (Griffin); Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).

[3] Miranda v. Arizona (1966) 384 U.S. 436.