P. v. Valenzuela
Filed 7/1/13 P.
v. Valenzuela CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RAUL CASTRO VALENZUELA,
Defendant ant
Appellant.
F063102/F063301
(Super.
Ct. Nos. BF135839A, BF131733A)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Daniel G.
Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In case No.
BF131733A, appellant, Raul Castro Valenzuela, pled no contest to
& Saf. Code, § 11352, subd. (a)).
On July 26, 2010, the court suspended imposition of sentence and placed
Valenzuela on probation for three years on condition that he serve one year in
local custody.
In case No. BF135839A, a jury convicted Valenzuela of transportation or sale of
cocaine (count 1), possession for sale of cocaine (count 2/§ 11351), possession
for sale of methamphetamine (count 4/§ 11378), and driving without a valid
driver’s license (count 6/Veh. Code, § 12500, subd. (a)). In a separate proceeding, the court found
true a prior conviction enhancement (§ 11370.2, subd. (a)) and revoked
Valenzuela’s probation in case No. BF133733A.
On August 9, 2011, the court
sentenced Valenzuela in both cases to an aggregate term of nine years eight
months as follows: the upper term of
five years on count 1; a three-year prior conviction enhancement on that count;
a one-year term on count 2 (one third the middle term of three years); an eight-month
term on count 4 (one third the middle term of two years); time served on count
6; and a concurrent three-year term on Valenzuela’s conviction for
transportation or sale of cocaine in case No. BF131733A.
On appeal,
Valenzuela contends: 1) the court erred
in admitting a stipulation into evidence; and 2) the prosecutor engaged in
prejudicial misconduct during his
closing argument. We affirm.
FACTS
name="_ftnref3" title="">[2]
Valenzuela’s Jury Trial
The
prosecution evidence established that on February 25, 2011, at approximately
12:40 p.m., after Valenzuela drove into a service station, Kern County
Sheriff’s Deputy John Coleman parked behind him. When Valenzuela exited his car, the deputy had
Valenzuela approach him. Deputy Coleman
asked Valenzuela if he had any drugs or anything illegal in his car and
Valenzuela replied that he did not.
Deputy Ernest Wahl then had his police canine sniff around the car’s
exterior and the dog “alerted.†Deputy
Wahl searched the interior and found a baggie containing 3.9 grams of cocaine,
a baggie containing 1.1 grams of cocaine, and a baggie containing .7 grams of
methamphetamine.
Deputy Coleman asked Valenzuela why
there were drugs in the car when he said there would not be any and Valenzuela
replied that they were for personal use.
He also told Coleman that the larger baggie contained an “eight
ball.†Additionally, Coleman checked and
determined that Valenzuela had never been issued a driver’s license.
Coleman advised Valenzuela that he
was under arrest and that the deputies were going to search Valenzuela’s
apartment. When Coleman asked Valenzuela
if there were any narcotics at the apartment, Valenzuela told him that there
might be about three grams that were leftover from the weekend when he was
“partying.â€
During the search of Valenzuela’s
kitchen, deputies found 9.1 grams of cocaine on a coffee filter on a plate
located in a cabinet. In the bathroom,
the deputies found three baggies containing a total of 52.8 grams of cocaine
and two baggies containing a total of 5.8 grams of methamphetamine. The search of the apartment also uncovered
cutting agents, containers used to mix narcotics, packaging, digital scales,
and acetone, which could be used to wash out impurities in the narcotics.
The deputies next searched
Valenzuela’s uncle’s house. In the
garage they found 101.67 grams of methamphetamine in one zip lock baggie, 86.5
grams of methamphetamine in a second baggie, 15.3 grams of cocaine in a third
baggie, a digital scale, and a container filled with a cutting agent. The deputies also found $2,000 in currency in
a jacket in a closet and $504 on a man who was at the residence.
Ivonne Lopez, Valenzuela’s
ex-girlfriend, testified she was living with Valenzuela when his apartment was
searched. According to Lopez, Valenzuela
paid for the household expenses by selling drugs.
Deputy Coleman testified as an
expert that the drugs were possessed for sale and that on the day he was
arrested, Valenzuela did not exhibit any objective signs of being under the
influence of any narcotic. He also testified that during the searches,
the deputies did not find any paraphernalia associated with personal use of
cocaine or methamphetamine.
The defense did not present any
evidence.
DISCUSSION
The Stipulation
Prior to the taking of testimony
the prosecutor moved in limine to use Valenzuela’s prior conviction for
transportation or sale of cocaine to impeach Valenzuela if he testified and to
prove Valenzuela’s knowledge that the drugs recovered in the instant matter
were controlled substances and his intent in possessing them. After noting that defense counsel moved in
limine to exclude evidence of Valenzuela’s prior conviction, the court stated
that it would take the defense motion under submission. Defense counsel then offered to stipulate
that Valenzuela knew the narcotic character of the drugs that were found during
the searches. However, after the
prosecutor stated he still wanted to use the conviction to prove Valenzuela’s
intent in possessing the drugs, the court noted Valenzuela’s Evidence Code
section 352
title="">[3] objection to the introduction of the prior
conviction and took the matter under submission.
On the next court date, the court
ruled it would allow the prosecutor to use Valenzuela’s prior conviction to
prove Valenzuela’s intent in possessing the drugs. The following day, however, the prosecutor
advised the court that he would not be seeking to admit Valenzuela’s prior
conviction to prove intent and that he accepted the defense’s “stipulation as
to the element of knowledge of the substances being controlled
substances.†Just prior to the prosecutor resting, the court read to the
jury the following stipulation by the parties:
“The parties hereby stipulate that defendant has knowledge of
methamphetamine and cocaine and knows them both to be controlled
substances.†The court then admonished
the jury, in effect, that the stipulation went only to Valenzuela’s knowledge
of the “nature and controlled substance status†of the drugs involved in the
case.
Valenzuela appears to contend the
stipulation was akin to evidence of prior bad acts and that the court erred in
admitting this evidence because: 1) it
did not engage in the requisite weighing process pursuant to Evidence Code
section 352; and 2) the prejudicial impact of admitting this evidence
outweighed its probative value. We
reject these contentions.
“A
party to a criminal action can, however, and with binding effect, stipulate to
evidentiary matters and to the existence or nonexistence of facts [citation]
and to any of the steps of an action or proceeding. [Citations.]
A binding stipulation admitting evidence may be made, even if such
evidence is otherwise inadmissible. It
also is held that, by stipulation, a criminal defendant may waive benefits
granted to him by the Constitution.†(
Cal.App.3d 473, 476.)
Since Valenzuela offered the
stipulation into evidence jointly with the prosecution, he is bound by it and
there is no merit to his claim that the court erred in admitting the
stipulation into evidence. In any event,
the stipulation did not constitute evidence of prior bad acts and it did not
prejudice him.
“‘Evidence of uncharged
offenses “is so prejudicial that its admission requires extremely careful
analysis. [Citations.]†[Citations.]’ [Citation] Further, ‘to be admissible such evidence
“must not contravene other policies limiting admission, such as those contained
in Evidence Code section 352.
[Citations.]†[Citation.]’ [Citation.]
Thus, we are required ‘to examine whether the probative value of the
evidence of defendant’s uncharged offenses is “substantially outweighed by the
probability that its admission [would] ... create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.†(Evid. Code, § 352.)’ [Citation.]â€
(People v. Lopez (2011) 198
Cal.App.4th 698, 714-715 (Lopez).)
“[T]he erroneous admission of
other crimes evidence is harmless if it does not appear reasonably probable
that without the error a result more favorable to the defendant would have been
reached.†(Lopez, supra, 198 Cal.App.4th at p. 716.)
The parties stipulated only that
Valenzuela knew cocaine and methamphetamine were controlled substances.
Further, since it is common knowledge that these drugs are controlled
substances, the stipulation did not implicate Valenzuela in any prior bad acts
because its only import was that Valenzuela was aware of these familiar facts.
Further, the introduction of the
stipulation could not have prejudiced Valenzuela because the evidence of his
guilt was overwhelming and unrebutted.
The prosecution’s evidence showed that a search of Valenzuela’s car
uncovered three baggies that cumulatively contained substantial amounts of
drugs. At Valenzuela’s apartment the
deputies found 9.1 grams of cocaine in the kitchen and 52.8 grams of cocaine
and 5.8 grams of methamphetamine in the bathroom. The deputies also found packaging, cutting
agents that could be used to dilute the cocaine, acetone that could be used to
remove impurities from it, and a digital scale.
Additionally, Valenzuela’s girlfriend testified he paid their living
expenses with proceeds from the sale of drugs, and Deputy Coleman testified as
an expert that the drugs were possessed for sale and that Valenzuela was not
under the influence of drugs when he was arrested. Moreover, Valenzuela lied when he told the
deputies there were no drugs in his car and only three grams of drugs at his
apartment, and the deputies did not find in Valenzuela’s car or in his
apartment any paraphernalia associated with personal use of cocaine or
methamphetamine. Further, we must
presume the jurors followed the court’s instruction that they were to consider
the stipulation only in determining whether Valenzuela had knowledge of the
nature and “controlled substance status†of the cocaine and methamphetamine
involved in the case. (People v. Sanchez (2001) 26 Cal.4th
834, 852.) Accordingly, we conclude the
court did not err when it admitted the stipulation into evidence and that, in
any event, the admission could not have prejudiced Valenzuela.
The Alleged Prosecutorial Misconduct
During the
prosecutor’s rebuttal closing argument,
the court overruled the defense’s objection to the following argument:
“Their defense is personal use
because that’s all they remotely have.
There is no doubt that he possessed the drugs, so they can’t argue that
element. There’s only so many elements
they can attack. And as you predicated (
they can attack, because he can’t say the drugs belonged to somebody else
because he already admitted the drugs were his.
He can’t say that an alien came down and planted cocaine and meth in his
car.
“No one
is going to believe that anything belongs to Ivonne Lopez in this case, and he
knew that. So, he thought it would be
okay to take the fall and say, [‘]yeah, it’s mine, but it’s for personal
use.[’] But that just doesn’t make
sense.
“There
is no evidence of personal use. Defense
counsel saying he looks under the influence in this picture. To me, I don’t think there’s much difference
between how he looked then and how he looks now. So, what is [defense counsel] saying, if he
was under the influence in this picture?
Deputy Coleman who does this for a living didn’t notice any objective
symptoms. And while the defense doesn’t have to bring forward any witnesses since
it’s my burden to prove this case, there’s no expert witness coming in to rebut
Coleman’s testimony.†(Italics
added.)
Valenzuela contends that through the
italicized portion of the quoted argument, the prosecutor shifted the burden of
proof to Valenzuela such that Valenzuela was required to prove his innocence
beyond a reasonable doubt in violation of his right to due process. We disagree.
“A prosecutor may fairly comment on
and argue any reasonable inferences from the evidence. [Citation.]
Comments on the state of the evidence or on the defense’s failure to
call logical witnesses, introduce material evidence, or rebut the People’s case
are generally permissible.
[Citation.] However, a prosecutor
may not suggest that ‘a defendant has a duty or burden to produce evidence, or
a duty or burden to prove his or her innocence.’ [Citations.]â€
(People v. Woods (2006) 146
Cal.App.4th 106, 112.) “A defendant’s
conviction will not be reversed for prosecutorial misconduct unless it is
reasonably probable that the jury would have reached a result more favorable to
the defendant had the misconduct not occurred.â€
(People v. Zambrano (2004) 124
Cal.App.4th 228, 243.)
The italicized portion of the
prosecutor’s argument merely pointed out the defense had not rebutted Deputy
Coleman’s expert testimony that Valenzuela was not under the influence when he
was arrested and it clearly advised the jury that the prosecutor had the burden
of proof. Accordingly, we reject
Valenzuela’s contention the prosecutor engaged in misconduct during his closing
argument.
Alternatively we conclude any
prosecutorial misconduct was harmless.
As previously explained, the evidence of Valenzuela’s guilt was
overwhelming and unrebutted. Therefore,
it is not reasonably probable Valenzuela would have received a more favorable
result absent the alleged misconduct.
DISPOSITION
The judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Detjen, J. and Peña, J.
name="_ftn2" title="">[1] All
further statutory references are to the Health and Safety Code, unless
otherwise indicated.
