P. v. Candler















Filed 1/10/13 P.
v. Candler CA3











NOT TO BE PUBLISHED



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Sacramento)

----


>

THE PEOPLE, Plaintiff and Respondent, v. KEITH WAYNE CANDLER, Defendant and Appellant.

C069774 (Super. Ct. No. 10F08164)

name="_BA_ScanRange">A jury found defendant Keith Wayne Candlerhref="#_ftn1" name="_ftnref1" title="">[1] guilty of possessing
marijuana inside prison . The trial
court found that defendant had one prior strike and sentenced him to prison for
seven years four months.

Defendant contends the trial court
erred prejudicially by permitting the People’s href="http://www.fearnotlaw.com/">expert witness to testify on irrelevant
matters outside his expertise. Finding
the error harmless, we affirm.

FACTUAL AND PROCEDURAL
BACKGROUND

On May 20, 2010, Correctional Officer Brian Moltzen set out to
search defendant’s cell at California State Prison, Sacramento. Looking through the window
in the cell door, Officer Moltzen saw defendant put something into his boxer
shorts. After entering the cell and
handcuffing defendant, Officer Moltzen determined that defendant had hidden a
cell phone in a homemade pocket inside his shorts. Because having a cell phone violated prison
regulations, Officer Moltzen removed defendant from his cell, intending to put
him in a holding cell, perform an unclothed body search, and confiscate the
cell phone.

After Correctional Officer Burke
Scruggs photographed the cell phone on defendant’s person, Officers Moltzen and
Scruggs searched holding cell No. 3 (which measured about three feet wide, two
and one-half feet deep, and seven feet high) and saw that it was empty.href="#_ftn2" name="_ftnref2" title="">[2] The cell was in “kind of like a tunnel,” but
the sun was out, light was coming in from both sides, and Officer Moltzen could
see everything “pretty clearly.”

Officer Scruggs testified that there
were several adjacent holding cells, which were often used to detain inmates
temporarily; however, there were no inmates in the cells at that time. Officer Scruggs did not know how recently
anyone had been in any of the cells.

The cells were placed several inches
apart. Inmates could pass small items
through the wire mesh cell walls, but the items would not make it to the next
cell; they would drop to the floor between the cells. Although inmates in adjacent cells could
theoretically pass an object from one cell to another by stretching out their
arms and meeting in the middle, any attempt to do so would be “painfully
obvious.”

After Officers Moltzen and Scruggs
placed defendant in holding cell No. 3, they closed and locked the door and
uncuffed him. Officer Scruggs observed
that defendant continued to face the back of the cell, which was unusual for an
inmate whose handcuffs had been removed; his hands moved toward the center of
his stomach. Defendant then turned
around, while standing or leaning at the left rear portion of the cell. Looking down, the officers saw what looked
like a cellophane-wrapped bindle next to defendant’s left foot on the floor in
the corner of the cell. Officer Moltzen
ordered defendant to turn around, handcuffed him, and took him out of the
cell. Officer Scruggs photographed and
retrieved the bindle, which turned out to contain 1.36 grams of marijuana. It was the size of a ping-pong ball. >

> The prosecutor stated in
limine that he would present testimony about “the possession of contraband in
prison . . . why it is significant, why they recover contraband, why
they search for it, the dangers involved with having contraband, drugs, deaths,
et cetera in prison. [I]t is not
unlikely, especially considering the makeup of the prison population, that
there may be some reference to gangs and their activities. [¶] I
wouldn’t expect it would be significant and there isn’t anything other than
straightforward finding of the marijuana in the holding cell with the defendant
in it that these officers would testify to, but there may be some testimony
probative in that area.” The prosecutor
said he would not tie defendant to a gang or to gang activity in prison.

Asserting that testimony as to “why
the officers don’t like drugs in prison and all the terrible things drugs in
prison can do” would be irrelevant and highly prejudicial, defense counsel
moved to exclude any such evidence.

The prosecutor replied: “It is a small amount of contraband and it is
marijuana. We have a substantial portion
of our population that thinks that drugs should be legalized. [¶]
And some of them may look at such a small amount of marijuana and say: So what?
Big deal. [¶] But what I
think is important and . . . highly probative is that they understand
things are very different in prison.
This isn’t a college dorm room . . . this is a high-security
prison and there is a reason why we have these laws and rules. And I think it flies in the face of people’s
attitudes and how it may affect their ability to judge this evidence.”

The trial court ruled:

“I think it is highly relevant. We have laypeople coming in here that most of
them have never been in a prison, don’t know what goes on in a prison.

“I think some background how drugs
are brought in prisons, what type of drugs are found in prisons, why they are
in prison, how they are used, some type of leverage with different inmate
groups or gangs, I think all of that is relevant to educate the public, educate
these jurors about what life in prison is like . . . .

“ [M]y experience in cases over the
years, jurors have no idea what it is like in prison. They are shocked to know drugs even show up
in prison. They thought prisons were
secure.

“So I think they need a general
picture of the realm and the environment of prison life, what goes on, how
drugs are brought in, what they are used for, that type of I want to say medium
of exchange, their use, pressure on someone who has drugs/doesn’t have drugs.

“I am going to allow some questions
in that area. I don’t think it is going
to be unduly time consuming. I think the
jury needs to be informed what goes on in the prison without any particular
emphasis put on this defendant being a leader of a gang or drug dealer in
prison or drug enforcer or anything like that.
That I would agree is probably not relevant. There is no evidence to that.

“But I think the jury does have to
have the picture of prison life, so I will allow the DA to go into that area
somewhat.”

Consequently,
Correctional Officer Ryan Couch, who worked for the investigative services unit
of the California Department of Corrections
and Rehabilitation, testified that he had
taken an 80-hour course on “drug interdiction, drug identification, symptoms,
terminology, how inmates traffic narcotics, simple possession, how they consume
it, ingest it, inhale it, . . . sales, search warrants.” (By “drug interdiction,” Officer Couch meant
“intercepting drugs or contraband coming into the prison itself.”) According to Officer Couch, inmates normally
ingest marijuana by smoking and inhaling it in a “pinner” (like a “joint,” but
smaller), manufactured by using paper from prison-issued Bibles or Korans to
make a two-inch by one-inch piece of “rolling paper” and inserting a “pinch” of
marijuana into it.

Officer Couch had also received
training as to “crime scenes.” His “main
field of expertise” was “asset forfeiture,” or “the seizing of money from the
trafficking of controlled substance into the prisons.” He was taught “how the inmates sell the
narcotics, traffic it into the prison, how they like to carry it upon
themselves, take it across the prison facilities, store it in their cells.”href="#_ftn3" name="_ftnref3" title="">[3]

Officer Couch had made around 20
trafficking arrests inside the prison system and had questioned inmates to find
out “how they bring it in, why they bring it in, why they like to ingest it,
keep it on them, the symptoms they receive from it, why they desire it so
much.” He had also worked closely with
narcotics task forces and district attorney’s investigators as to the
trafficking and use of marijuana and other controlled substances.

The prosecutor offered Officer Couch
as an expert in “the possession of marijuana inside the prison system.” Defense counsel did not object. The trial court found him qualified.

Over a relevance objection, Officer
Couch testified that marijuana in prison is typically packaged in a latex or
cellophane wrapping, partly to mask its odor.
Inmates secrete it in a body orifice if possible. They typically keep it on their persons
because “[t]here is no trust in
prison”; if an inmate merely hides it in his cell, his cellmate will probably
steal it.

Over a relevance objection and
motion to strike, Officer Couch testified that possessing marijuana in prison
is dangerous because marijuana “is so highly desired inside the prison setting
by inmates -- 90 percent of the inmate population wants and desires these
controlled substances -- that they will commit felonies, such as assaults
[¶] . . . [¶] or stabbings in order to gain narcotics or possess it
from another inmate.” Officer Couch had
personally witnessed inmates being robbed of marijuana.

Over relevance and “speculat[ion]”
objections, Officer Couch testified that a prisoner can acquire a “drug debt”
over marijuana: “When an inmate
purchases a controlled substance or narcotics, there is no currency inside the
prison so the only way they can pay for it is through canteen items or to get
family or a friend on the street to send money . . . . Usually the debts can run up to $2- to $500
at a time. They like to -- the drug
dealer -- the person selling the narcotics for the drug dealer inside a prison
will cap it at 500. To me and you, a
$500 debt is an easy payment, but to an inmate it could be life or limb.” If a debt is not repaid, the drug dealer or
his associates will assault the indebted inmate.

Finally, Officer Couch testified
that 1.3 grams of marijuana is a usable amount in prison. It could make up the contents of nine to 12
pinners.

Defendant
testified on his own behalf. He admitted
that he hid a cell phone in a pocket he had sewn inside his shorts, knowing
that this was against the rules; however, he denied that he possessed
marijuana.

According to defendant, there were
five cadets (officers in training) accompanying Officer Moltzen when he removed
defendant from his cell and took him to the holding cell; defendant believed he
had told his attorney about the cadets, but defendant did not suggest that his
investigator find out who they were.
There was already an inmate in the neighboring holding cell when
defendant was brought there; defendant did not know who he was and never tried
to find out.

Defendant claimed he did not see
Officer Moltzen or Officer Scruggs look inside the holding cell before they put
him in. He admitted, however, that they
could have done so when he had his back to them.

Defendant claimed the officers never
completely uncuffed him in the holding cell.
Officer Moltzen started to do so, but Officer Scruggs ordered Officer
Moltzen to remove defendant from the cell, then claimed to spot an object on
the cell floor which he said was marijuana.href="#_ftn4" name="_ftnref4" title="">[4]

DISCUSSION

> Defendant contends the trial
court abused its discretion by allowing “irrelevant and overly prejudicial
testimony regarding drug trafficking and dangers posed by drugs in
prisons.” (Capitalization omitted.) He also contends the court’s error was
prejudicial because the prosecution’s case was “relatively weak.”

The trial court has broad discretion
to decide what evidence is relevant and whether the probative value of evidence
outweighs its potential for prejudice. ( ADDIN BA xc <@cs>
xl 42 s AGRFHI000003 xhfl Rep xpl 1 l "People v. Lomax(2010) 49 Cal.4th 530" People v. Lomax (2010) 49 Cal.4th 530, 581; ADDIN BA xc <@cs> xl 47 s
AGRFHI000004 xhfl Rep xpl 1 l "People
v. Rodrigues(1994) 8 Cal.4th 1060" People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) However, the court has no discretion to admit
irrelevant evidence. ( ADDIN BA xc <@cs>
xl 44 s AGRFHI000005 xhfl Rep xpl 1 l "People v. Benavides(2005) 35 Cal.4th 69" People v. Benavides (2005) 35 Cal.4th 69, 90.) We review the court’s evidentiary rulings for
abuse of discretion. ( ADDIN BA xc <@cs>
xl 44 s AGRFHI000006 xhfl Rep xpl 1 l "People v. Alvarez(1996) 14 Cal.4th 155" People v. Alvarez (1996) 14 Cal.4th 155, 201.)>



Evidence is relevant if it has any
tendency in reason to prove a disputed point that is of consequence to deciding
the action. ( ADDIN BA xc <@st>
xl 17 s AGRFHI000007 xpl 1 l "Evid. Code, § 210" Evid. Code,
§ 210.) Here, the only disputed
point was whether defendant possessed the marijuana found in the holding cell.
Whether inmates in general conceal drugs on their persons for fear of theft by
other inmates, whether 90 percent of inmates crave drugs badly enough to commit
violent felonies to obtain them, or whether inmates can incur drug debts over
marijuana, had no tendency in reason to prove whether defendant possessed the
marijuana at issue. Nor did general
information about “what life in prison is like” (as the trial court put it in limine).href="#_ftn5" name="_ftnref5" title="">[5]

Because the evidence offered by
Officer Couch on these issues was irrelevant, the trial court erred in
admitting it. Therefore, we need not
address defendant’s arguments under ADDIN BA xc <@st> xl 25 s
AGRFHI000008 l "Evidence Code section 352" Evidence Code section 352.

We turn then to prejudice. We reverse only if there is a reasonable
probability the jury would have reached a result more favorable to defendant
absent the error. (People v. Watson (1956) 46 Cal.2d 818, 834-837.)

Defendant’s prejudice argument
focuses on what he believes was a “relatively weak case” by the People. This is not an accurate view of the evidence
because the evidence against defendant was overwhelming, even taking out the
irrelevant evidence that should have been excluded. There was strong circumstantial evidence the
marijuana found in holding cell No. 3 was discarded by defendant. Two correctional officers visually inspected
that holding cell before placing defendant inside and saw nothing. It





was
a small holding cell, practically closet space, but there were floodlights
overhead, and the wire mesh screen that covered the top of the cell allowed
their light to come through, and the marijuana bindle later found was a large
size, comparable to a ping-pong ball.

Defendants’ conduct once inside the
cell corroborated an inference defendant possessed the marijuana. After being placed in the holding cell and
uncuffed, defendant’s behavior was unusual.
He continued to face the back of the cell and moved his hands to the
center of his stomach. Even when he
turned around, he remained toward the left rear portion of the cell. It was on the ground near defendant’s left
side that the marijuana bindle was found.

Compared to this evidence,
defendant’s version of events was not believable. Defendant wanted the jury to believe the
marijuana was already in the holding cell before he was placed there and could
have come from an inmate in an adjacent cell.
However, Officer Scruggs testified that the mesh walls and the distance
between the cells would make any attempt by an inmate to do so “painfully
obvious.”

In sum, for the jury to have
believed defendant’s version of events, it would have to believe that two
correctional officers missed the ping-ponged sized bindle of marijuana when
they searched the empty, lighted cell but then were able to see that same
bindle once defendant was inside the cell with the door closed. On this record, the admission of the href="http://www.fearnotlaw.com/">irrelevant evidence was harmless.

DISPOSITION

> The judgment is affirmed. The matter is remanded to
the trial court with directions to order the preparation of a corrected
abstract of judgment reflecting the







correct spelling of defendant’s last
name. The corrected abstract of judgment
shall be forwarded to the Department of
Corrections and Rehabilitation.







ROBIE , J.







We
concur:







NICHOLSON , Acting P.
J.







BUTZ , J.