P. v. Olson

Filed 5/23/08 P. v. Olson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed in part and reversed in part.

A jury convicted defendant Michael Olson of petty theft with a prior qualifying conviction (Pen. Code,  484, 666),^[1]possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)), and possession of narcotics paraphernalia (Health & Saf. Code,  11364). The trial court stayed imposition of sentence and placed Olson on five years' formal probation. On appeal, Olson argues (1) the evidence was insufficient to support the possession of methamphetamine conviction; (2) the court erred by excluding evidence that, when Olson was arrested in a van for possession of methamphetamine, his passenger had a prior drug conviction; and (3) the court erred by excluding evidence supporting Olson's belief he had permission to take the property for which he was convicted of theft.

FACTS

A. The Petty Theft

Around 2:30 a.m. on November 22, 2006, an employee of Fry's Electronics was monitoring security cameras when he observed a van outside the pallet yard of the Fry's store in San Marcos, California. The employee contacted police because he saw a person placing several pallets into the van. The employee continued to monitor the video until he saw a deputy sheriff arrive and stop the van.

The deputy sheriff who stopped the van testified it was being driven by Olson. Ms. Valentine, a female passenger in the van, said she was just along for the ride after the deputy sheriff asked if Olson had permission to take the pallets. The deputy sheriff arrested Olson and Valentine. The van, which had numerous pallets inside, was towed to an impound yard.

B. The Drug Possession

On November 24, 2006, Officer Gay, while driving his police car on patrol, saw a truck backed into a business's cargo area and saw a person looking into a dumpster. Officer Gay parked his car and approached the dumpster on foot to investigate. By the time Officer Gay returned to the area, there was no one near the dumpster, but he saw two men sitting in the truck.

Officer Gay shone his flashlight into the truck and ordered the occupants to put their hands on the dashboard. The person in the passenger's seat, Mr. Casper, immediately complied. However, Olson (sitting in the driver's seat) put only his left hand onto the dashboard. Officer Gay ordered Olson to put both hands on the dashboard. Officer Gay heard the noise of something striking the floor of the truck's passenger compartment, and Olson then put his right hand onto the dashboard. Officer Gay also noticed Olson's body moving as though Olson were trying to use his legs to move something. After ordering Olson and the passenger out of the truck, Officer Gay asked Olson what caused the noise, and Olson replied he had dropped a glass pipe.

Another officer, called to the scene as backup, searched the truck and found a glass pipe on the floor of the truck. The pipe was typical of the type used to smoke methamphetamine. A further search found a small usable quantity of methamphetamine hidden behind some hanging black plastic in a pop-out, air vent-type dashboard compartment to the left of the steering wheel.

ANALYSIS

A. Substantial Evidence Supports the Conviction for Drug Possession

A conviction for possession of drugs requires that the defendant exercised dominion and control over the drugs, and knew of their presence and narcotic nature. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 ["essential elements of possession of a controlled substance are 'dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character' "].) Although mere "proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession" (People v. Redrick (1961) 55 Cal.2d 282, 285), the requisite knowledge may be established by circumstantial evidence. (Palaschak, at p. 1242.)

Olson asserts there is no substantial evidence that he knew the drugs were in the truck, and therefore the evidence was insufficient to support the conviction for drug possession. When reviewing a claim attacking the sufficiency of the evidence to support a conviction, " 'the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) If the verdict is supported by reasonable, credible evidence of solid value, we accord due deference to the verdict and will not substitute our conclusions for those of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient evidence unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

The same deferential standard of review applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court [that] must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

The evidence here would permit a rational trier of fact to infer Olson was aware of the presence of the drugs in the truck he was driving. The drugs were found hidden in an air vent-type dashboard compartment to the left of the steering wheel, and Olson was seated behind the steering wheel within arm's reach of that compartment. When Officer Gay initially drove past, he saw one man on the ladder of a dumpster near the truck and another in the truck. Although Officer Gay was uncertain whether the men had observed him drive by in his police car, by the time he parked and returned on foot the person on the dumpster had climbed down and entered the truck. A jury could infer that Olson or Casper saw Officer Gay's car and, fearing they had been observed, returned to the truck and immediately tried to hide the drugs in the nearest hiding place in the event Officer Gay returned. Moreover, Olson had still not had time to hide the pipe when Officer Gay ordered him to put his hands on the dashboard, but nevertheless tried to finish hiding the evidence. The jury could infer that Officer Gay had interrupted Olson in the middle of his efforts to hide evidence of his drug use, and had only been able to complete the first half of the task (by placing the drug packet in the nearby vent compartment) before he was interrupted. The fact Olson was carrying the pipe, an implement peculiarly suited for ingesting methamphetamine, permitted the jury to infer Olson had a reason for carrying the pipe on his person: to use the pipe for its intended purpose of consuming the methamphetamine found a few feet away. There is substantial circumstantial evidence to permit the jury to infer Olson knew the drugs were present.

B. Exclusion of Casper's Drug Conviction Was Not an Abuse of Discretion

Olson attempted to introduce evidence that Casper was on parole for a drug offense at the time of his arrest. He argued this evidence would permit the jury to infer the drugs belonged to Casper rather than Olson. The court excluded the evidence under Evidence Code section 352, finding the prejudicial effect of the evidence outweighed its probative value.

Evidence Code section 352 provides the court with discretion to "exclude evidence 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." The court in People v. Rodrigues (1994) 8 Cal.4th 1060 explained at pages 1124 to 1125 that "the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time" and a trial court's exercise of its discretion under section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citations.]"

We conclude the trial court's ruling was not an abuse of its discretion. The probative value of the evidence was negligible because the inference Olson sought to draw from the evidence--Casper's drug history made it likely that he possessed drugs--was entirely consistent with the possibility that both Olson (the holder of the pipe) and Casper (a drug user) possessed the drugs. Moreover, it would have created undue confusion of the issues, because the jury would have been required to speculate about the circumstances surrounding Casper's prior drug offense and whether Olson was somehow involved in that prior offense. Finally, had the court admitted this evidence (on the theory that Casper's prior drug offenses permitted the inference the drugs belonged to Casper), Olson does not explain how the court simultaneously could have barred the prosecution from introducing rebuttal evidence of Olson's multiple prior drug offenses under the identical theory of admissibility. The prejudicial impact and potential confusion from the proffered evidence and corollary rebuttal evidence outweighed any probative value of the excluded evidence, and therefore the trial court's ruling was not an abuse of discretion.

C. Exclusion of the Evidence of Consent Was Prejudicially Erroneous

In defense of the petty theft charge, Olson made an offer of proof that Valentine would testify that a few days before Olson took the pallets, she had accompanied Olson to Fry's and was present when an unidentified manager from Fry's told Olson and Valentine they could take the pallets. Valentine accompanied Olson when he took the pallets a few days later. The prosecution objected to the evidence as hearsay, and the court sustained the objection and excluded the evidence. As a result of this ruling, Olson withdrew his requested jury instruction pertaining to good faith mistake.

The ruling sustaining the prosecution's hearsay objection was error.^[2] Olson argues, and the People do not dispute, that it is a defense to a charge of theft if the defendant believes he or she has taken the property with the owner's consent, because that belief (even if mistaken)^[3]negates the specific intent element necessary to the crime of theft. (See, e.g., People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11.) The excluded evidence was central to Olson's proposed defense to the theft charge, because the evidence would have provided the basis for arguing that Olson thought he had permission to take the pallets.

The ruling excluding the evidence as hearsay was error, because the evidence was not offered to prove the truth of the hearsay statements by the Fry's employee, but was instead offered merely to show the statements had been made, and therefore the statements were admissible as operative facts and were not barred by the hearsay rule. (See People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069.) When a victim utters words manifesting consent, and the words are relevant to the specific issue of whether the defendant had reason to believe the victim consented, the victim's words are admissible as operative facts and do not offend the ban against hearsay. (See People v. Burnham (1986) 176 Cal.App.3d 1134, 1144-1145.) We conclude the proposed testimony was not inadmissible under the hearsay rule, and therefore excluding the evidence on that basis was error.

We also conclude the error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Guerra (2006) 37 Cal.4th 1067, 1119 [erroneous exclusion of evidence that deprives defendant of ability to present defense tested under Chapman]; accord, People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Olson did not contest that he took the pallets, but instead sought to defend against the theft charge by asserting he lacked the requisite intent because he believed he had permission to take the pallets. This defense was eliminated by the erroneous evidentiary ruling, and therefore we must be satisfied beyond a reasonable doubt the outcome would have been the same had the defense been permitted. The evidence was that the pallets had been taken from an unlocked location near the store, and Olson was driving away from the store when police stopped him. Olson made no effort to evade police when they stopped him, but instead immediately pulled over to the side. On this evidence, we cannot say the exclusion of the defense that he believed he had permission to take the pallets was harmless beyond a reasonable doubt.

The People argue the exclusion of Valentine's testimony was harmless because Olson could have testified to his belief. We reject this claim, for two reasons. First, the People's argument suggests, without citation to authority, that an error depriving a defendant of his Sixth Amendment right to present a defense is harmless when it could have been cured by sacrificing the defendant's Fifth Amendment privilege not to testify, and we believe the law is to the contrary. (See generally People v. Cuccia (2002) 97 Cal.App.4th 785, 790-791; People v. Lawson (2005) 131 Cal.App.4th 1242, 1246-1247.) Second, even assuming a defendant may be compelled to sacrifice one federal constitutional right to preserve another, the trial court's ruling obviated Olson's ability to testify as to his belief because the evidentiary ruling disallowing the manager's alleged statement barred Olson from explaining why he held the belief. When the defense tried to cross-examine the arresting officer to ask whether Olson (at the time of his arrest) explained why he had been at Fry's or claimed to have had permission to take the pallets, the prosecutor's hearsay objections were sustained.

DISPOSITION

The judgment of conviction of petty theft with a prior conviction is reversed. The judgment is in all other respects affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] On appeal, the People also argue the evidence was properly excluded because it was made "by an unknown person not subject to cross-examination [and] was insufficiently reliable." However, the People cite no authority that either deficiency makes the evidence inadmissible, and an argument lacking citations may be deemed waived. (People v. Solorzano (2005) 126 Cal.App.4th 1063, 1070, fn. 4.) Moreover, because these grounds were not raised below, the People may not raise them for the first time on appeal. (People v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4.) Accordingly, we limit our evaluation to the objection raised and ruled on below, e.g., whether the proposed testimony violated the hearsay rule.

^[3] The evidence was that Fry's does not allow its employees to give away the pallets.