Rumie v. Martinus
Filed 2/3/06 P. v. Butler CA3
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NOT TO BE PUBLISHED


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



THIRD APPELLATE DISTRICT



(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BLAINE EUGENE BUTLER,

Defendant and Appellant.
C047538


(Super. Ct. No. 03F09488)




A jury convicted defendant of possessing methamphetamine for sale, and the trial court sentenced him to 10 years in state prison. He appeals arguing (1) the trial court erred by not admitting an unavailable witness's declaration against penal interest, (2) the trial court's refusal to admit the hearsay evidence violated due process, (3) the trial court abused its discretion when it refused to grant a second continuance for evidence testing, (4) the prosecutor committed prosecutorial misconduct, (5) the trial court erred by denying a motion for mistrial, (6) defense counsel was prejudicially ineffective, and (7) the cumulative impact of the errors warrants reversal. We affirm.

FACTS

On October 29, 2003, Marcus Gregory, a narcotics detective with the Sacramento County Sheriff's Department, conducted surveillance of defendant at an apartment. After defendant took two trips between the residence and the street, loading various bags and a cooler into a silver Ford Contour, Detective Gregory detained and arrested him for being a parolee at large. Roxanne Navarro (defendant's girlfriend), Brian Provins (resident of the apartment), and Jennifer Schmueckle (Provins's friend), were all present at the residence and were detained.

Deputies found a cellular telephone and a set of keys in defendant's hand as well as a used methamphetamine pipe, Ziploc baggies, plastic baby bottle bags, and $590 in cash in his pocket. A search of the car revealed two bags of methamphetamine concealed in a blue and white aerosol can with a false bottom. The can had been wrapped in a towel and placed in a gift bag. Also in the can were two syringes and two plastic baby bottle bags. The two bags of methamphetamine differed significantly in weight at 28.9 grams and 1.52 grams. The cooler contained a digital scale with methamphetamine residue, an unused methamphetamine pipe, jewelry, and a set of walkie-talkies.

Defense Case

Defendant and Navarro were staying at the residence of Provins, another parolee. Provins testified he did not see drugs and would not have allowed their use at his residence because he has two strikes. He saw defendant carry a bag out to the car and heard the police say they found methamphetamine.

Schmueckle testified she visited Navarro at Provins's residence. They smoked methamphetamine in the bathroom. Schmueckle thought there were seven grams in a plastic baggie Navarro wrapped in a tissue and placed into a hollow aerosol can. She testified she saw Navarro place the can in a bag.

PROCEDURE

Defendant was charged with possessing methamphetamine for sale in violation of Health and Safety Code section 11378. The information also alleged various prior convictions and prison terms not at issue here. Defendant pled not guilty and was tried by jury. The jury convicted defendant on the lone count and found true the prior convictions and prison term allegations. The court sentenced defendant to the middle term of two years, doubled to four years, for possessing methamphetamine for sale, and imposed an additional six years for the prior conviction and prison term enhancements.

DISCUSSION

I

Refusal to Admit Navarro's Statement

After Navarro made repeated requests at the scene of defendant's arrest, Detective Kelly O'Keefe allowed Navarro to say goodbye to defendant, who was sitting handcuffed near the car. The hushed conversation lasted four to five minutes. Detective O'Keefe never saw Navarro hug or kiss defendant. After the conversation, Navarro approached Detective O'Keefe and stated the drugs in the blue and white can were hers. She repeated this admission in a written statement at the main jail. Navarro professed she only smoked methamphetamine and never injected it. She stated she snorted methamphetamine before the police arrived and asserted nothing else in the car belonged to her. She claimed the drugs were a gift from a friend, whose name she could not remember.

Navarro was called to testify, but she refused, citing her Fifth Amendment right not to incriminate herself. Because of this, the parties agreed Navarro was unavailable as a witness. Defendant sought to have her hearsay statement admitted as a statement against interest pursuant to Evidence Code section 1230.

The trial court held a hearing outside the presence of the jury to consider admission of Navarro's hearsay statement. The court considered the inconsistencies in the statement itself and factors surrounding the statement. It determined Navarro's statement was not reliable and excluded it.

Defendant argues the trial court erred when it refused to admit Navarro's admission as a statement against penal interest pursuant to Evidence Code section 1230. We disagree.

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