P. v. Mitchell
Filed 6/26/12 P. v. Mitchell CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOHN ORLANDO MITCHELL,
Defendant
and Appellant.
E052488
(Super.Ct.No.
FWV1001214)
OPINION
APPEAL from the Superior
Court of
County. Michael A.
Sachs, Judge. Affirmed.
Helen S. Irza, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Peter Quon, Jr., and Theodore M. Cropley,
Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant
John Orlando Mitchell was convicted of one count of
substance in violation of Health and Safety Code section 11351, and one
count of transportation of a controlled substance in violation of Health and
Safety Code section 11352, subdivision (a).
Defendant was sentenced to state prison for a total term of 15
years. He appeals, challenging the trial
court’s rulings regarding the admission of certain evidence and the jury
instructions. Finding no errors, we
affirm.
I. FACTS
On May 13, 2010, Deputy Sheriff Michael Rose stopped a black Monte
Carlo in Rancho Cucamonga for
driving with tinted windows. Defendant
was sitting in the front passenger seat.
Upon learning that defendant was on parole, Deputy Rose conducted a
mandatory parole search. The deputy
searched defendant and the vehicle.
During the search, Deputy Rose found a prescription bottle of
hydrocodone underneath the passenger seat that was issued to someone named
Jesse Taylor. Defendant claimed he had
picked up the bottle for a friend. When
Deputy Rose asked for Taylor’s
address and telephone number, defendant said that he could not offer any
information.
Defendant told Deputy Rose there was
another bottle inside the vehicle that belonged to him. Deputy Rose located the second bottle in the
center console, along with two loose tablets.
The second bottle label was partially torn off and showed the
prescription number but not the name of the person to whom the medication was
prescribed. Deputy Rose arrested
defendant and transported him to the police station. During a search of defendant, the deputy
found $558. During the booking process,
Deputy Rose asked whether defendant was employed in order to determine whether
he had obtained the money in his pocket by selling drugs. Defendant said he was unemployed.
Deputy Rose called the pharmacy that
had filled Jesse Taylor’s prescription and obtained the telephone number on
file. The deputy called the number
several times but no one answered.
Eventually, the telephone number was shut off or disconnected. The pharmacy also provided a name and
telephone number for the second prescription bottle found in the car. The owner was identified as Dion or Diane
White; however, when Deputy Rose called the number, the woman who answered
claimed ignorance of anyone named “White” and then hung up when Deputy Rose
identified himself.
While the prescriptions were
dispensed at two different pharmacies, they were both written by
Dr. Antonio Llamas Jimenez. Further
investigation revealed that defendant picked up the “White” prescription on May 11, 2010, along with a bottle of
hydrocodone prescribed to him by Dr. Jimenez, and then picked up the “Taylor”
prescription on May 13, 2010,
at 3:35 p.m. Criminalist Darci Fullner analyzed the drugs
found and identified several different types of pills, all of which were
various concentrations of acetaminophen and hydrocodone.
Jesse Taylor, a longtime friend of
defendant, testified that on May 13,
2010, he asked defendant to pick up his prescription medications,
which included hydrocodone, because he did not drive. He testified that he needed the hydrocodone
due to having five pins in his hip. On
cross-examination, Taylor admitted
he had been convicted of grand theft of a vehicle in 1994, second degree
burglary in 1995, receiving stolen property in 1997, and forgery in 2004. Taylor
stated he had never asked defendant to pick up his drugs before, and that he
never received any of his prescriptions.
Taylor acknowledged that if
defendant were in trouble, he would try to help him if he could.
According to Deputy Sherry Eversole,
defendant picked up Taylor’s
prescription for hydrocodone on May 13,
2010, and the rest of Taylor’s
prescription on May 5, 2010.
II. ADMISSION OF
DEFENDANT’S STATEMENT REGARDING
EMPLOYMENT
Defendant contends the trial court
erred when it admitted his statement to Deputy Rose that he was unemployed,
because the statement was made after he had asserted his Miranda
title="">[1] rights and for the specific purpose of
eliciting an incriminating response. The
People respond that the statement was made in response to standard questioning
necessary to complete the booking process.
Prior to trial, defendant moved in
limine to suppress statements he made to Deputy Rose during the booking
process, including the statement that he was unemployed. At the hearing on the motion, Deputy Rose
testified that he had found prescription pills (not in defendant’s name) in the
car in which defendant was a passenger, and then found $558 in cash on
defendant’s person. Defendant was
arrested and read his Miranda rights,
which he invoked. Later, during the
booking process, Deputy Rose asked defendant questions from the standardized
booking form, which contains a question as to whether the subject is
employed. According to Deputy Rose,
there is no other booking form that omits this employment question, and he asks
this question in every booking. Deputy
Rose testified that he went through the entire booking application with
defendant. The deputy further explained
that when collecting money during booking, it would be booked as evidence or
property to be kept at the jail. Deputy
Rose concluded that the money found on defendant came from drug sales and,
thus, was evidence.
On cross-examination, Deputy Rose
acknowledged that a subject’s employment is not a factor for jail safety
concerns. He also testified that after
defendant stated he was unemployed, he (Deputy Rose) asked defendant several
questions about the source of the money found on him. Defendant explained the money was his
friend’s unemployment check, which would be used for rent.
Defense counsel argued that
defendant’s statement regarding the state of his employment was inadmissible
because the purpose of the question was purely investigatory and reasonably
likely to elicit an incriminating response, i.e., it was asked to determine
whether the $558 was from drug sales.
In response, the prosecutor pointed
out that answers to many of the standard booking procedure questions could
theoretically be used against a defendant; however, he argued these questions
are asked during each and every booking procedure for booking purposes and are
not designed to elicit incriminating responses.
Regarding the follow-up questions, the prosecutor argued that they were
asked to determine whether the money found on defendant should be booked as
evidence or as his property.
Nonetheless, the prosecutor stated he would not seek to admit defendant’s
answers to those questions as evidence at trial.
The trial court held that
defendant’s statement that he was unemployed would be admitted into evidence;
however, his answers regarding the source of the money would not. The court said: “The long and short of it is . . .
I believe that he’s being asked questions that are routine to the booking
process. So as far as the unemployment
question being asked or the employment question, I would allow that not being
in violation of Miranda. Any other questions, though, after he has
been advised of his rights and he has chose[n] to assert those rights
appropriately, then the dollars are what the dollars are, whether they are
being inventoried, or whether they’re evidence, it’s a factual basis as to the
amount of money.”
“When a defendant challenges the
admissibility of [his] postarrest statements on the ground they were elicited
in violation of Miranda, the People
have the burden of proving by a preponderance of the evidence that the
statements were not the product of a Miranda
violation. [Citations.] In reviewing a trial court’s ruling on a
motion to suppress based upon a violation of Miranda, ‘“we accept the trial court’s resolution of disputed facts
and inferences, and its evaluations of credibility, if supported by substantial
evidence. We independently determine
from the undisputed facts and the facts properly found by the trial court
whether the challenged statement was illegally obtained.” [Citation.]’
[Citation.] Here, the facts
concerning the booking interview are not in dispute. Accordingly, we review the admissibility of
the defendant’s statements de novo.” (
609, 627 [Fourth Dist., Div. Two] (Gomez).)
California and federal courts have
long applied the booking question exception to Miranda. (See, e.g.,
387, superseded by statute as stated in Gomez,
supra, 192 Cal.App.4th at p. 630, fn.
11; U.S. v. Booth (9th Cir. 1981) 669
F.2d 1231, 1238; U.S. ex rel. Hines v.
LaVallee (2d Cir. 1975) 521 F.2d 1109, 1112-1113.) “The fact that the information gathered from
routine booking questions turns out to be incriminating does not, by itself,
affect the applicability of the exception.
[Citations.] In
assailant told his robbery and rape victim during the commission of the crimes
that he had been married 11 years and had two children. [Citation.]
After the defendant was arrested and before being Mirandized, he was asked ‘background data (i.e., his name, address,
age, marital status) . . . .’
[Citation.] He told the officer
that he had been married for 11 years and had two children. [Citation.]
Although the response was incriminating, the Second Circuit held that it
was admissible because it ‘constituted merely basic identification required for
booking purposes . . . .’
[Citation.]” (
Thus, if the question to defendant regarding his employment is a
legitimate booking question and not designed to elicit an incriminating
admission, his response is admissible despite its incriminating effect and the
absence of Miranda warnings.
“In determining whether a question
is within the booking question exception, courts should carefully scrutinize
the facts surrounding the encounter to determine whether the questions are
legitimate booking questions or a pretext for eliciting incriminating
information. [Citation.] Courts have considered several factors,
including the nature of the questions, such as whether they seek merely
identifying data necessary for booking [citations]; the context of the
interrogation, such as whether the questions were asked during a
noninvestigative clerical booking process and pursuant to a standard booking
form or questionnaire [citations]; the knowledge and intent of the government
agent asking the questions [citations]; the relationship between the question
asked and the crime the defendant was suspected of committing [citations]; the
administrative need for the information sought [citations]; and any other
indications that the questions were designed, at least in part, to elicit
incriminating evidence and merely asked under the guise or pretext of seeking
routine biographical information [citations].”
(Gomez, supra, 192 Cal.App.4th at pp. 630-631.)
Applying the above factors,
defendant contends that “[t]he only
factor that weighs in favor of finding that [Deputy] Rose’s question was a
routine booking question . . . is that the San Bernardino Sheriff’s
Department has a pre-printed data field for recording the name of an
individual’s employer on its booking form.”
Otherwise, defendant argues that his employment status “is not the type
of data that can be used to identify or otherwise distinguish between
individuals who are booked into jail,” “[t]he decision whether to categorize
physical property as evidence that a suspect committed a crime is an
investigative one, not an administrative one,” Deputy Rose knew that
defendant’s answer regarding his employment status “could be incriminating and
that he specifically asked it in order to elicit an incriminating response,”
and the employment question was directly related to the charges against
defendant and designed to elicit incriminating evidence. In response, the People argue that “all of
these ‘factors’ only set forth another way of asking the only pertinent
question—was the question at issue designed
to elicit an incriminating response.”
While the question may not have been
designed to elicit an incriminating response, defendant faults the People for
overlooking Deputy Rose’s testimony.
Defendant highlights the following excerpts of Deputy Rose’s
testimony: The significance of the
question is “to determine if somebody has money in their [sic] possession from working or from doing something illegal.” “If somebody’s arrested for sales and they
have a large quantity of small denomination[s] of currency such as ones, fives,
tens, quantities of money which narcotics are usually sold for that dollar amount,
then I would ask.” The employment
question is used as an investigative tool.
Given Deputy Rose’s testimony, defendant argues that such “testimony can
and should be understood to mean that the reason the Sheriff’s Department
regularly asks illegal sales suspects during the booking process whether they
are employed is to determine whether the money they are carrying may be
evidence of a crime, i.e., the question about employment has been placed on the
form and is therefore designed, at
least with respect to sales cases, to elicit incriminating information from
suspects when they are booked.”
Clearly, the issue of whether the
employment question used under the facts of this case is a close one; however,
considering the facts surrounding the encounter, we cannot say the trial court
erred in its ruling. In addition to
asking defendant’s employment status, Deputy Rose asked several questions about
the source of the money found on defendant’s person. By itself, a booking question regarding
employment is innocuous. It serves the
purpose of providing the arresting agency with information as to whether a
defendant has been properly identified, where to locate him/her if released on
bail, or whether he/she may need the services of the public defender’s
office. Thus, there is a legitimate
administrative function for this question.
While defendant argues that in cases involving drug sales, the question
is asked “to determine whether the money that they are carrying is derived from
illegal drug sales, i.e., whether it implicates them in a crime[,]”the same can
be said with cases involving theft crimes.
Thus, defendant would have this court eliminate the employment question
in all drug sales or theft-related crimes.
Such is not reasonable. However,
when, during the booking process, a defendant is questioned beyond his/her
employment, as was done in this case, we agree with defendant (and the trial
court) and conclude that questions regarding the source of any money located on
the defendant is designed to elicit an incriminating response.
Notwithstanding the above, even if
defendant’s statement that he was unemployed were inadmissible, the error in
permitting Deputy Rose’s testimony was harmless. We evaluate error in the admission of a
defendant’s statements under the “harmless beyond a reasonable doubt” standard
of Chapman v. California (1967) 386
U.S. 18, 24. (See People v. Johnson (1993) 6 Cal.4th 1, 32-33.) Under that standard, an error may be found
harmless only when the reviewing court concludes beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained. (Chapman
v. California, supra, at p.
24.) Error in admitting a statement
obtained in violation of Miranda is
generally deemed harmless if there was other, properly admitted evidence that
established the fact sought to be proven by means of the statement. (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 60.)
Here, the prosecution’s theory was
that defendant possessed prescription drugs for sale. Defendant claimed he only possessed the drugs
for his own personal use. The status of
his employment was irrelevant given the other evidence presented. Defendant was found in possession of two
prescription bottles, not in his name, containing over 140 hydrocodone pills in
different colors. Defendant was unable
to provide the contact information for the person(s) for whom he was picking up
the prescriptions. Deputies Rose and
Eversole testified that, in addition to the large amount of money on
defendant’s person, the amount of prescription drugs possessed, and the way in
which they were possessed, i.e., different colored pills mixed together in the
same bottle without identifying information, indicate possession for sale
rather than personal use. Additionally,
the jury heard the testimony of two other officers who previously had arrested
defendant upon being found with large amounts of cocaine, marijuana, and
cash. In the officers’ opinions,
defendant possessed those drugs for sale.
Based on the record before this court, the verdict was not attributable
to any error in admitting evidence of the booking questions regarding
employment.
Nonetheless, defendant points to the
fact that after deliberating for a few hours, the jury requested a readback of
Deputy Rose’s testimony regarding the booking.
Given this request, defendant argues that the “jury’s focus on this fact
alone as something it needed to rehear in order to come to a decision makes it
impossible to make a principled finding beyond
a reasonable doubt.” We
disagree. There is no indication in the
record before this court, nor does defendant contend, that the jury requested a
readback of the booking testimony for the sole reason of confirming that
defendant was unemployed. In any event,
in comparison to the evidence presented, defendant’s negative answer to the
question of whether he was employed was of minor importance. In today’s economy, many people are
unemployed, especially in San Bernardino County. The fact that defendant was one of them did
not supply any missing link in the evidence, and any error in admitting Deputy
Rose’s testimony was harmless.
III. EXCLUSION
OF EVIDENCE REGARDING THE SOURCE OF THE
MONEY FOUND ON DEFENDANT’S PERSON
Defendant faults the trial court for
admitting his statement that he was unemployed while excluding his answers to
Deputy Rose’s questions regarding where he obtained the $558 found in his
pocket. (Evid. Code, § 356.)
After the trial court’s in limine
ruling, Deputy Rose testified as to defendant’s statement that he was unemployed. On cross-examination, defense counsel asked
Rose: “Did [defendant] make any other statements to you other than after he
told you he was unemployed about where the money came from” The prosecutor objected on hearsay
grounds. Defense counsel asserted that
the answer “is part and parcel of the completeness of the unemployed
statement. They were asked immediately
afterwards.” Following a discussion off
the record, the trial court sustained the prosecutor’s hearsay objection.
Outside the presence of the jury,
defense counsel argued that defendant’s statements regarding where and how he
obtained the money found in his pocket should be admitted because these
statements were related to defendant’s statement that he was unemployed insofar
as it “relates to the same matter which is the $558” and occurred close in time
to the admitted statement of being unemployed.
The prosecutor maintained his hearsay objection, arguing that the
question to defendant about whether he was unemployed was “a completely different
track of conversation,” and did not have anything to do with the money. Neither side was able to locate defendant’s
friend, Chennel Coleman, whose alleged unemployment check was cashed.
The trial court sustained the
prosecutor’s objection on the ground that the follow-up questions did not
explain why defendant was unemployed.
“[T]he purpose of [section] 356 [is to] [a]llow[] further inquiry into
[an] otherwise inadmissible matter only where it relates to the same subject
and it is to make the already introduced conversation understood. [¶]
The evidence that was introduce[d] is that he was unemployed, and the
fact that he has money in his possession doesn’t explain why he’s unemployed or
not or clarifies the issue of employment.
It relates to perhaps a different issue unrelated to unemployment. So, I would sustain the objection to those
questions that [defense counsel] would like to ask regarding the money at this
point in time.”
Citing People v. Arias (1996) 13 Cal.4th 92, the court further explained
that “[w]hen a statement admitted into evidence is part of the conversation,
the opponent is entitled to have everything apparent said during that
conversation placed into evidence provided the other statements are relevant to
the statement already admitted; and again it’s the unemployed—whether he’s
employed or not, it seems to me to be the issue of the statement, so again
that’s just another case.”
Both parties used the fact that
there was no evidence explaining where defendant obtained the money in his
pocket. The prosecutor used defendant’s
unemployment to argue that defendant had no explanation for the source of the
$558 found on him. Defense counsel
responded: “[Deputy Rose] asked if
[defendant was] employed. And when [he]
says, no, he has no further questions.
According to the evidence that you have if you’re an investigating
officer, you’re not going to follow up on that
There’s no evidence in this trial that he asked any further questions
about where did that money come from.”
Analysis
Section 356, in part, provides
that: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse party; . . .
and when a detached . . . conversation . . . is given in
evidence, any other . . . conversation . . . which is
necessary to make it understood may also be given in evidence.” (See People
v. Arias, supra, 13 Cal.4th at p.
156 & fn. 24.) “A trial court’s
determination of whether evidence is admissible under section 356 is reviewed
for abuse of discretion.” (
263, 274.)
According to defendant, his
statement relating to the fact that he was unemployed was a “detached” portion
of his interview during the booking process with Deputy Rose, entitling him to
introduce his statements as to how he came into possession of the $558. He argues “the trial court erred [in
determining] the subject matter of the question, ‘Are you employed’ in
theoretical isolation [when it should have considered] why [his] answer was
relevant and admissible under the facts of this particular case.” We disagree.
To begin with, defendant fails to take into account the remaining
portion of section 356, which allows introduction of additional parts of a
conversation only if they are needed to explain the statement in evidence. Here, defendant’s statements regarding how he
obtained the $558 did not explain the fact that he was unemployed nor were they
necessary to the understanding of his statement that he was unemployed. (
[rejecting the defendant’s claim of third party culpability, stating: “The flaw in defendant’s theory is that the
proffered evidence has no tendency to establish any relevant fact.”].) More
important, and as the People aptly note, “the admission of these statements
would have allowed [defendant] under the guise of seeking to present a
‘complete picture’ . . . to enter into evidence self-serving hearsay
statements not otherwise admissible while avoiding cross-examination on the
issue.” Defendant’s remedy was to either
take the stand himself or bring in defendant’s friend, Chennel Coleman, to tell
the jury how he obtained the $558. Given
the above, the trial court did not abuse its discretion in excluding the
statements.
IV. OTHER CRIMES
EVIDENCE
Defendant contends the trial court
erred in allowing the prosecution to call two peace officers who testified that
they found defendant in possession of cocaine and marijuana in 2005 and 2007,
and that, in their opinion, he possessed the drugs for sale. He claims the evidence was erroneously
admitted, in violation of section 1101, subdivision (b), section 352, and his
admitted to show that defendant intended to sell the prescription drugs found
in his possession.
The prosecutor moved in limine to
introduce evidence of four prior incidents where defendant was allegedly found
to be in possession of cocaine or marijuana for sale, in order to show his
intent. The prosecutor argued that the
only dispute in the present case was why defendant had the prescription drugs,
and these prior incidents were probative in showing the jury that he harbored
the same intent for the prior crimes that he harbored for the current crimes,
i.e., the intent to sell. Defendant
opposed the motion. The trial court
denied the prosecution’s motion with respect to the two incidents that were
purported to have occurred in 1992 and 2000; however, it allowed the 2005 and
2007 incidents.
Officer Reuben Cordoba testified
regarding the 2005 incident. During a
search of defendant’s residence, Officer Cordoba found marijuana and a half
gram of crack cocaine separated into three “rocks.” Also, he found $741 in cash in various
denominations and no indicia that the drugs were possessed for personal
use. Defendant was charged with
possession of cocaine for sale. He pled
guilty to simple possession of a controlled substance and the possession for
sale charge was dismissed; the money found was returned to Audrey Wince. Officer Cordoba opined that defendant
possessed the drugs for sale.
Detective Mary Yanez testified
regarding the 2007 incident. During a
search of defendant’s person, the detective found 12 individually packaged
bundles of marijuana in defendant’s right front pants pocket packaged as
“nickel bags,” $52 in his left front pants pocket, and $501 in his shoe. There was nothing to indicate the drugs were
possessed for personal use. Defendant
was charged with and pled guilty to possession of marijuana for sale. Detective Yanez opined that defendant
possessed the drugs for sale.
The jury was instructed with CALCRIM
No. 375 (other crimes evidence). During
closing, the prosecutor argued that the evidence of defendant’s intent to
possess drugs for sale in 2005 and 2007 demonstrated that he had the same
intent for his current crimes. Defense
counsel reminded the jury that it could consider defendant’s prior crimes “only
for the issue of intent.”
Section 1101, subdivision (b),
provides that evidence of a person’s prior criminal act is admissible “‘when
relevant to prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge . . .) other than his or her disposition to commit
such an act.’ . . . Moreover,
to be admissible, such evidence ‘“‘must not contravene other policies limiting
admission, such as those contained in Evidence Code section 352.’”’ [Citation.]”
(People v. Avila (2006) 38
Cal.4th 491, 586-587.) “‘On appeal, we
review a trial court’s ruling under Evidence Code section 1101 for abuse of
discretion. [Citation.]’ [Citation.]”
(People v. Gray (2005) 37 Cal.4th
168, 202.)
Here, defendant has not met his
burden of establishing that the trial court abused its discretion when it
allowed his 2005 and 2007 offenses to be introduced to prove the main issue of
fact at trial, namely, his intent when he possessed a large quantity of
prescription drugs which were not prescribed to him. Defendant contends his prior offenses were
not sufficiently similar to the charged offense to support the inference that
he harbored the same intent in each instance.
Specifically, he argues that the officers’ opinions that he “harbored an
intent to sell illegal drugs—do not
have any tendency in reason to demonstrate that [he] must have harbored the
same intent when he was found, under entirely different circumstances, to be in
possession of prescription drugs
. . . while he was travelling in a car away from home with no cell
phone or other known means of communication.”
In response, the People contend the facts of the prior offenses are
sufficiently similar to the facts of the current offense. The similarities include possession of a
large amount of cash in various denominations, along with possession of a large
quantity of drugs that appeared to be packaged for sale. The People argue that “[w]hile the
circumstances of the prior offenses and the current offense are not identical,
when a prior offense is admitted for its relevance to prove intent, ‘a
distinctive similarity between the two crimes is often unnecessary for the
other crime to be relevant.’ (
1210, 1217, internal quotations omitted.)”
We agree with the People.
In prosecutions for drug offenses,
evidence of prior drug use and prior drug convictions is generally admissible
under section 1101, subdivision (b), to establish that the drugs were possessed
for sale rather than for personal use and to prove knowledge of the narcotic
nature of the drugs. (
682, 691 [in prosecution for selling methamphetamine, evidence of prior drug
offenses was admissible to show knowledge of the nature of the drug and intent
to sell].) “The least degree of
similarity (between the uncharged act and the charged offense) is required in
order to prove intent. [Citation.]” (People
v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
Thus, the fact that the current offense
involved prescription drugs while the prior offenses involved illegal drugs
goes to the weight of the evidence, not its admissibility.
Under section 352, the trial court
has the discretion to admit evidence that is relevant to prove a material fact
as long as its probative value is not outweighed by its prejudicial
effect. (People v. Williams (1997) 16 Cal.4th 153, 213.) Although “[e]vidence of uncharged offenses
‘is so prejudicial that its admission requires extremely careful analysis’” (
evidence under section 352 will not be overturned absent a clear abuse of
discretion (People v. Kipp (1998) 18
Cal.4th 349, 369; People v. Brown
(1993) 17 Cal.App.4th 1389, 1396).
Although defendant argues that “[n]ot a single relevant factor weighs in
favor of admitting evidence of two prior possession incidents,”
say the trial court abused its discretion in admitting relevant evidence
tending to prove a material fact.
The prior crimes evidence had
substantial probative value and was more probative than prejudicial. (§ 352; Ewoldt, supra, 7 Cal.4th
at pp. 404-405 [prior crimes evidence must have substantial probative value and
not be more prejudicial than probative]; People
v. Gionis (1995) 9 Cal.4th 1196, 1214 [prejudice referred to in § 352
“applies to evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which
has very little effect on the issues.”].)
The strikingly similar circumstances surrounding defendant’s prior and
current arrests strongly indicate he possessed the prescription drugs for
sale. And, although the prior crimes
were to some extent prejudicial, they were no more prejudicial than the
evidence concerning his current arrest.
(Ewoldt, supra, at p. 405 [potential prejudice is lessened when prior crimes
evidence is “no more inflammatory” than evidence concerning charged offenses].)
Nonetheless, defendant further
argues that the prosecutor used the other crimes evidence “during closing as
pure propensity evidence, which is explicitly barred by . . . section
1101 and inherently prejudicial under . . . section 352.” This is a non sequitur. If, as defendant claims, the prosecutor
“misused” the prior crimes evidence to argue that defendant had a propensity to
commit the charged crime, it does not follow that the evidence was inadmissible
to show intent. Furthermore, the trial
court instructed the jury not to consider the prior crimes evidence to infer
that defendant had a propensity to commit the charged crime.
V. DENIAL OF
DEFENDANT’S ATTEMPT TO DISCREDIT
EXPERT TESTIMONY
Defendant faults the trial court for
refusing to allow him to “discredit” the testimony of Officer Cordoba with
defendant’s plea agreement.
In the opinion of Officer Cordoba,
defendant possessed cocaine for sale.
Defendant sought to admit the results of the plea agreement, which
showed that he pled guilty only to possession of cocaine for personal use, in
order to see if that changed the officer’s opinion. The prosecutor objected on relevancy grounds
and argued that the issue is what the officer thought at the time of the incident. The prosecutor noted that the ultimate
disposition of that case, which could include a plea of guilty to a lesser
offense for any number of reasons, had no bearing on what the officer thought
at the time of arresting defendant.
Officer Cordoba testified outside the presence of the jury pursuant to
section 402 that he was not aware that defendant pled guilty to simple
possession, and that he had no knowledge as to why such a plea agreement was
reached. The trial court sustained the
objection on the grounds that the officer did not testify that he had relied
upon the plea agreement in rendering his opinion, and it did not constitute
evidence that could be presented to the jury when compared to a canceled check
which could show that the allegedly drug sales money was in fact returned to
its rightful owner.
On appeal, defendant contends the
trial court erred because (1) the reasons why he entered into a plea agreement
go to weight, not admissibility, (2) he was entitled to impeach the officer’s
testimony as being biased or unreliable based on all the facts, (3) he should
have been able to use the plea agreement to cross-examine the officer and show
that the money was returned to a third party, and (4) he should have been able
to introduce the plea agreement pursuant to People
v. Griffin (1967) 66 Cal.2d 459, 465-466 (Griffin) (if prosecution introduces evidence the defendant
committed an uncharged offense, the defendant must be allowed to introduce
evidence that shows he was tried and acquitted of the charges) and
529, 533-535 (Griffin rule extended
to hold that evidence that the defendant was not prosecuted for the prior
offense also tends to weaken and rebut the prosecution’s evidence that the
defendant committed the other offense).
We disagree.
The fact that defendant pled to
simple possession of cocaine in 2005 had no bearing on Officer Cordoba’s
credibility or opinion that defendant possessed the cocaine for sale. There can be many reasons why defendant pled
to simple possession, including problems of proof which have no bearing on the
truthfulness or accuracy of the testimony describing the incident. Evidence of the plea agreement was irrelevant
to the facts surrounding defendant’s arrest by the officer. Defendant’s reliance on Griffin and Jenkins is
misplaced. Neither case deals with the
situation where the defendant entered into a plea agreement. As the People aptly note, “[u]nlike an
acquittal where a jury had a reasonable doubt that the prior crime occurred and
unlike a prosecutorial decision to not file charges, plea bargains are reached
in cases for a variety of reasons, many of which have nothing to do with the
strength of the evidence. . . . That [defendant]
pleaded guilty to a lesser included offense, unlike an acquittal or decision
not to prosecute, has no tendency in reason to cast doubt on whether [he]
actually committed the greater offense.”
Consequently, while it is conceivable that under some circumstances the
reasons why a plea agreement was entered into may be relevant to rebut the
prosecution’s evidence concerning a prior offense or to impeach the testimony
of the alleged victim of the prior offense, the bare fact that a plea agreement
was entered into is not relevant to rebut the prior crimes evidence or to
impeach the officer’s veracity. Here,
the defense made no offer of proof as to the reasons a plea agreement was
entered into. The proponent of the
evidence has the burden of demonstrating its relevance, and the failure to do
so precludes appellate review of any contention that the evidence was
erroneously excluded. (§ 354.) Accordingly, the trial court did not abuse
its discretion in determining that the plea agreement was not admissible. (People
v. Rodriguez (1999) 20 Cal.4th 1, 9.)
VI. CUMULATIVE
ERROR
We do not address defendant’s
contention that there was cumulative prejudicial error below, because we have
found no prejudicial error. (
335.)
VII. CALCRIM NO.
2300
In his final contention, defendant
argues the trial court erred in instructing the jury on the elements of
transportation of a controlled substance.
He claims that CALCRIM No. 2300, the standard jury instruction relating
to that offense, failed to inform the jury that “an individual is privileged to
transport controlled substances ‘upon the written prescription of a
physician,’” and that “an authorized patient or pharmacy representative is
permitted to effectuate the delivery of prescription drugs to a patient.”
Preliminarily, the People argue the
instructional challenge has been waived because, at the trial level, defendant
failed to object to the instruction on the ground that it did not include the
language which he now claims should have been included. Although an appellate court may review any
instruction given even though no objection was made in the lower court if the
substantial rights of the defendant were affected thereby (Pen. Code,
§ 1259; People v. Hillhouse
(2002) 27 Cal.4th 469, 503-506), failure to object forfeits the issue unless
the error affects the defendant’s substantial rights (People v. Anderson (2007) 152 Cal.App.4th 919, 927).
We therefore review the challenged
instruction to determine if defendant’s rights were affected by the
instructions, that is, “whether there is a ‘reasonable likelihood’ that the
jury understood the charge as the defendant asserts.” (People
v. Kelly (1992) 1 Cal.4th 495, 525.)
Not every ambiguity, inconsistency, or deficiency in a jury instruction
rises to the level of a due process violation.
(People v. Huggins (2006) 38
Cal.4th 175, 192.) In this case, we find
no error.
Health and Safety Code section
11352, in relevant part, provides:
“[E]very person who transports . . . any controlled substance
. . . unless upon the written prescription of a physician
. . . shall be punished by imprisonment . . . .” At trial, the jury was instructed pursuant to
CALCRIM No. 2300, as follows: “The
defendant is charged in Count Two with transporting Opiates, a controlled
substance. [¶] To prove that the defendant is guilty of this
crime, the People must prove that:
[¶] 1. The defendant transported a controlled
substance; [¶] 2. The
defendant knew of its presence; [¶] 3. The
defendant knew of the substance’s nature or character as a controlled
substance; [¶] 4. The
controlled substance was Opiates; [¶] AND
[¶] 5. The controlled substance was in a usable
amount. [¶] A person transports
something if he or she carries or moves it from one location to another, even
if the distance is short. [¶] A usable
amount is a quantity that is enough to be used by someone as a controlled
substance. Useless traces are not usable
amounts. On the other hand, a usable
amount does not have to be enough, in either amount or strength, to affect the
user. [¶] The People do not need to prove that the
defendant knew which specific controlled substance he transported, only that he
was aware of the substance’s presence and that it was a controlled
substance. [¶] A person does not have to actually hold or
touch something to transport it. It is
enough if the person has control over it, either personally or through another
person.” The jury found him guilty of
possession for sale, and transportation, of a controlled substance.
According to defendant, “[t]he fact
that a person does not engage in illegal transportation of prescription drugs
if he or she is authorized to deliver a prescription to an ultimate user is a
critical element in a transportation case involving prescription drugs and was
a key part of [defendant’s] defense.”
Thus, he argues the trial court “had a sua sponte duty to provide adequate instruction on the point, and
its failure to do so resulted in a violation of [his] substantial constitutional
rights.” In response, the People argue
that even if we assume the instruction was deficient such that the trial court
erred in its instruction to the jury, such error was harmless. The People contend that because the jury
found defendant guilty of possession for sale of opiates, it necessarily found
that defendant had the intent to sell the prescription drugs in his
possession. Given this result, defendant
concedes that the instructional error is rendered harmless. We agree.
Because we have not found just cause to reverse the sales count, we
necessarily conclude that any error in instructing the jury with CALCRIM No.
2300 was harmless.
VIII.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
HOLLENHORST
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Miranda
v. Arizona (1966) 384 U.S. 436 (Miranda).
name="_ftn2" title=""> [2] All further statutory references are to the
Evidence Code unless otherwise indicated.
