P. v. Harris
Filed 7/22/10 P. v. Harris CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. AQUANETTA HARRIS, Defendant and Appellant. | B215800 (Los Angeles County Super. Ct. No. BA338541) |
APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan and John S. Fisher, Judges. Reversed and remanded with directions.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul L. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Aquanetta Harris of possession for sale of phencyclidine (PCP) (Health & Saf. Code, 11378.5.)[1] Defendant admitted suffering a prior strike conviction within the meaning of the Three Strikes law ( 667, subds. (a)-(d), 1170.12, subds. (b)-(i)). The trial court sentenced defendant to eight years in state prison.
On appeal, defendant contends that the trial court erred when it denied her Pitchess[2] motion, when it failed to instruct the jury properly on voluntary intoxication, and when it admitted irrelevant and highly prejudicial gang evidence. We conditionally reverse the judgment and remand the matter to the trial court for further proceedings on defendants Pitchess motion as set forth below.
BACKGROUND
About 10:30 p.m. on April 1, 2008, Los Angeles Police Department Officer Cesar Orozco and his partner, Officer Franco, were on foot patrol to the rear of 4112 Palmwood Drive in Los Angeles. That address housed several apartment buildings. Officer Orozco observed defendant walking rather briskly. Numerous clear plastic baggies protruded from defendants right front sweater pocket.
Officer Orozco approached defendant, perceived the strong odor of PCP emanating from her, and detained her to conduct a further investigation. Defendant was holding a black plastic bag. Inside the bag was a small bottle that contained a liquid Officer Orozco believed to be PCP. The bottle was about four inches tall, one and a half inches in diameter, and appeared to be three-fourths full. Officer Orozco removed the bottle from the bag and placed it on the ground because PCP can be ingested through a persons skin, and Officer Orozco wanted to prevent further exposure. Defendant also was in possession of 10 clear plastic baggies nine in her sweater pocket and one in her purse. Officer Orozco called for additional units.
Defendant attempted to pull away from Officer Orozco, and she and the officer moved about four to five feet from the bottle. After defendant was placed under control, Head picked up the bottle and fled. Officer Orozco pursued Head until Head passed through a gate that he slammed shut causing it to lock. Officer Orozco directed one of the responding units to the front of the location to detain Head. Head was detained across the street. From a dumpster behind which Head had been hiding, an officer recovered the bottle of PCP that Officer Orozco had earlier recovered from defendant.
While he was in contact with defendant, Officer Orozco observed signs or symptoms of intoxication. Officer Orozco perceived the odor of PCP emanating from defendants person, defendant was nonresponsive to questions about her name and date of birth, she had a blank stare, and her muscles were rigid. Based on his observations, Officer Orozco was concerned that defendant was under the influence of PCP. Officer Orozco also was concerned that defendant might overdose, so he called an ambulance.
Because defendant did not respond to the officers, she was placed in handcuffs and taken to the ground and held there. As they waited for the ambulance, Officer Orozco searched defendants outer garments her sweater. Pursuant to police department policy prohibiting male officers from searching female arrestees, Officer Orozco did not search defendants pants, top, or person. In his search, Officer Orozco did not find any currency. Within minutes, an ambulance arrived and took defendant to the hospital. Officer Deen Alcaraz accompanied defendant to the hospital.
A few hours after defendants initial detention, and after she had received medical treatment at the hospital, Officer Orozco spoke with defendant at the police station. Defendants only statement concerning her activities that evening was that she had been on Palmwood smoking PCP with two friends when the police came and grabbed her. Also at the police station, defendant handed Officer Alcaraz $41 in cash consisting of one $20 bill, one $10 bill, one $5 bill, and six $1 bills.
City of Los Angeles Criminalist Aaron McElrea testified that the bottle Officer Orozco recovered from defendant contained a liquid that weighed 13.41 grams or 15 milliliters. The liquid contained PCP.
Los Angeles Police Officer Frank Lyga, the prosecutions expert witness on PCP, testified that PCP is typically manufactured as a liquid. Liquid PCP has a petroleum ether odor. Liquid PCP is ingested by smoking a cigarette to which PCP has been applied. Symptoms exhibited by a person under the influence of PCP include elevated vital signsblood pressure, pulse rate, respiration, and temperature; hallucinations; and a lack of pain sensation.
According to Officer Lyga, one twentieth of a milliliter of liquid PCP would allow a user to be intoxicated for 24 hours. Fifteen milliliters of liquid PCP is a sufficient quantity to half dip about 300 cigarettes. The street value of 300 doses of PCP would be between $3,000 and $6,000. The entire bottle could have been purchased for between $225 and $300.
Asked to explain the significance of a person who possessed a bottle filled with 15 milliliters of PCP also possessing nine empty plastic sandwich bags, Officer Lyga testified that the bags were to assist end users to avoid detection. After purchasing PCP-laced cigarettes, end users use plastic baggies to obscure the odor of PCP during transport, thus avoiding detection by law enforcement. The plastic bags also, apparently, helped end users avoid contamination.
Asked if there was anything significant about a female carrying PCP as opposed to a male, Officer Lyga testified that, in Los Angeles, PCP is manufactured and controlled by Black gang members. Because law enforcement in Los Angeles is less likely to stop and search females, gang members commonly allow female gang members to carry the drugs.
Officer Lyga was asked to assume the following facts: law enforcement officers detained a female; the female possessed nine empty plastic bags and $41 in cashconsisting of one $20 bill, one $10 bill, one $5 bill, and six $1 bills; the officers smelled the odor of PCP emanating from the females person or her bag; a bottle was placed on the ground and a second person grabbed the bottle and ran; and officers followed that person and recovered the bottle. Based on those facts, Officer Lyga opined that the two persons possessed the PCP for the purpose of sale. The quantity of PCP played a role in Officer Lygas opinionin his experience he did not see persons who only used PCP carrying that quantity for personal use. The money also was a factor because it was consistent with the $10 to $20 purchase price of a single dose of PCP. Even if the person in the hypothetical did not have any money, however, Officer Lygas opinion would not change because persons who sell drugs commonly do not carry money, in order to avoid losing both their drugs and their money if arrested.
DISCUSSION
I. Defendants Pitchess Motion Demonstrated Good Cause For Discovery Of
Information Contained In The Police Officer Personnel Records
Defendant contends that the trial court erred when it denied her Pitchess motion, arguing that she showed good cause for an in camera review of the personnel records of Officers Orozco and Franco. Defendant met her burden of showing good cause with respect to records reflecting dishonesty by the officers.
A. Background
Defendant filed a Pitchess motion with respect to Officers Orozco and Franco that sought information about complaints of excessive force, bias, dishonesty, or other acts of misconduct which are in any way relevant to the development of the defense in this matter. The motion defines excessive force as referring to any and all conduct which could in any way support the theory that the named officer has a propensity for violence. The motion defines bias as referring to any and all conduct which might help the jury to assess the officers personal bias against any specific race, gender, sexual orientation, or any other identifiable criteria. The motion defines dishonesty as referring to any and all evidence, of conduct which would assist the jury in evaluating the credibility of the named officer. Including but not limited to: Any act showing a lack of credibility, any dishonest act, any act displaying moral turpitude, any accusation of false arrest, fabrication of evidence, fabrication of probable cause, filing or writing false police reports, perjury, planting evidence, lying in a police report or to a fellow officer to cover up another act of misconduct, such as the use of excessive force, or making false or misleading internal reports that would benefit the officer in any way, such as overtime reports or medical reports.
Defendant attached the police report to her Pitchess motion. The report states that Officer Orozco saw defendant walk past as he talked to Head. Officer Orozco approached defendant and saw that she had plastic baggies sticking out of her sweater pocket and that she was carrying a black plastic bag. Officer Orozco attempted to speak with defendant and smelled a strong odor of ether, consistent with the presence of PCP, coming from defendant. Officer Orozco detained defendant and conducted a narcotics investigation. Officer Orozco removed the black plastic bag from defendants hand and observed that inside the bag was an amber-colored glass bottle three-quarters full of a liquid that appeared to be PCP. Officer Orozco placed the bottle on the ground to avoid PCP contamination. Defendant attempted to pull away from Officer Orozco. Officer Orozco believed that defendant was under the influence of PCP, and he and Officer Franco guided her to the ground. Meanwhile, Head picked up the bottle and ran away, but was immediately detained and the bottle recovered.
In his declaration in support of defendants motion, defense counsel stated that although defendant admitted smoking PCP with friends at the location, defendant would deny at trial that she was in possession of the black plastic bag or the amber-colored glass bottle as the officers claimed. Defendant did not know from where the plastic bag or bottle came. According to the declaration, the police ordered defendant to stop as she left the premises, tackled her to the ground, and handcuffed her. Defendant contended that the officers fabricated the claims in the police report to justify defendants illegal detention, search, and arrest. At trial, defendant would challenge the credibility of Officers Orozco and Franco concerning their claim that she possessed the bottle of liquid PCP for the purpose of sale. Defendant would bolster this challenge with prior acts of similar misconduct or acts of general dishonesty.
At the outset of the hearing on defendants Pitchess motion, the trial court stated that it was inclined to deny defendants motion because defendant had not made an adequate showing. Defense counsel argued, [W]eve been pretty specific as to what occurred. We dont know where the narcotics came from. . . . Yes, she was there. Yes, she did, pursuant to the declaration, she was there and she did smoke PCP. The trial court, Judge William C. Ryan, responded, Why would the officer single her out? Thats not plausible that the officers would single her out for no reason at all. Defense counsel stated, Maybe she was under the influence and they wanted to arrest her. I dont know. We dont know where it came from. Thats the bottom line. She didnt have it. Judge Ryan denied defendants motion, finding that defendant had not made an adequate showing.
B. Pitchess Motion
Evidence Code sections 1043 through 1045 codify Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]. The statutory scheme carefully balances two directly conflicting interests: the peace officers just claim to confidentiality, and the criminal defendants equally compelling interest in all information pertinent to the defense. (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53 [19 Cal.Rptr.2d 73, 850 P.2d 621].) The legislation achieves this balance primarily through a procedure of in camera review, set forth in section 1045, subdivision (b), whereby the trial court can determine whether a police officers personnel files contain any material relevant to the defense, with only a minimal breach in the confidentiality of that file. (People v. Jackson (1996) 13 Cal.4th 1164, 1220.)
To initiate discovery, the defendant must file a motion supported by affidavits showing good cause for the discovery, first by demonstrating the materiality of the information to the pending litigation, and second by stating upon reasonable belief that the police agency has the records or information at issue. ([Evid. Code,] 1043, subd. (b)(3).) This two-part showing of good cause is a relatively low threshold for discovery. [Citation.] [] If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. [Citations.] (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019; People v. Gaines (2009) 46 Cal.4th 172, 179 [A showing of good cause is measured by relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents. [Citation.]].)
To show good cause as required by section 1043, defense counsels declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges . . . . [] Counsels affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. [] . . . [] [A] plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing put[s] the court on notice that the specified officer misconduct will likely be an issue at trial. [Citation.] Once that burden is met, the defendant has shown materiality under section 1043. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1024-1026, italics added.) We review for abuse of discretion a trial courts order denying discovery of a police officers personnel records. (People v. Prince (2007) 40 Cal.4th 1179, 1286; People v. Hughes (2002) 27 Cal.4th 287, 330.)
When a trial court errs in rejecting a showing of good cause for a Pitchess motion and has not reviewed the requested records in camera, the proper remedy is a conditional reversal and remand to permit the trial court to review the requested documents and to issue a discovery order, if warranted. (People v. Gaines, supra, 46 Cal.4th at pp. 180-181.) If, after such a review, the trial court determines that the requested personnel records contain no relevant information, then the trial court is to reinstate the judgment. (Id. at p. 181.) If, on the other hand, the trial court determines on remand that relevant information exists and should be disclosed, the trial court shall order disclosure and permit the defendant an opportunity to demonstrate prejudice. (Ibid.) If the defendant is able to show that there is a reasonable probability that the outcome of her trial would have been different had the information been disclosed, the trial court shall order a new trial. (Ibid.)
Defendants Pitchess motion demonstrated good cause for discovery concerning dishonesty by the officers. The police report states that Officer Orozco observed defendant in possession of a black plastic bag. According to the report, when Officer Orozco stopped defendant, he recovered an amber-colored glass bottle that apparently contained PCP from the black plastic bag defendant was holding. In defense counsels declaration, defense counsel states that defendant denied having possession of the black plastic bag or the amber-colored glass bottle. This denial of the facts in the police report states a defense to the charge of possession for sale of phencyclidine (Health & Saf. Code, 11378.5) and meets the relatively relaxed standards for establishing good cause for the discovery of police officer personnel records. (People v. Gaines, supra, 46 Cal.4th at p. 179; Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1019, 1024-1026.) Thus, under the factual scenario presented, the trial court was under a duty to conduct an in camera inspection of Officer Orozcos and Officer Francos personnel records to determine if they contain evidence of dishonesty.
Accordingly, we conditionally reverse the judgment and remand the matter to permit the trial court to review the officers personnel records and to issue a discovery order, if warranted. (People v. Gaines, supra, 46 Cal.4th at pp. 180-181.) If, after such a review, the trial court determines that the requested personnel records contain no information relevant to dishonesty, then the trial court is to reinstate the judgment. (Id. at p. 181.) If the trial court determines that relevant information exists and should be disclosed, the trial court shall order disclosure and permit defendant an opportunity to demonstrate prejudice. (Ibid.) If defendant is able to show that there is a reasonable probability that the outcome of her trial would have been different had the information been disclosed, the trial court shall order a new trial. (Ibid.)
II. Instructions On Voluntary Intoxication
Defendant contends that the trial court improperly modified the instruction on voluntary intoxication thus lowering the prosecutions burden of proof in violation of defendants federal constitutional rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments and to a reliable judgment under the Eighth Amendment, and in violation of her state constitutional rights. Defendant further contends that the trial court erred in never pointedly instructing the jury that she had to have the specific intent to sell PCP. Defendants claim fails because she forfeited review of these issues by failing to object in the trial court.
A. Background
1. The instruction on the elements of possession for sale of PCP
The trial court instructed the jury on possession for sale of a controlled substance with CALCRIM No. 2302, which provided, in part, that to prove defendant guilty of possession for sale of PCP, the prosecution had to prove that:
1. The defendant unlawfully possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substances nature or character as a controlled substance;
4. When the defendant possessed the controlled substance, (he/she) intended to sell it;
5. The controlled substance was PCP
AND
6. The controlled substance was in a usable amount.
2. The instruction on specific intent
The trial court instructed the jury on specific intent with CALCRIM No. 251 as follows:
The crimes (and/or) other allegations charged in this case require proof of the union, or joint operation, of act and wrongful intent.
For you to find a person guilty of the crimes of Poss. For sale of PCP
The trial court omitted the last sentence of CALCRIM No. 251 which provided that The specific (intent/ and/or mental state) required for the crime of _____
3. The instruction on voluntary intoxication
The trial court instructed the jury on voluntary intoxication with CALCRIM No. 3426 as follows[3] (the trial courts additions are bolded, its deletions are underlined):
As to Deft Harris You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted or failed to do an act with _____
A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
Do not consider evidence of intoxication in deciding whether _____
In connection with the charge of poss for sale of PCP. Ct. I
You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to the lesser offense of poss. of PCP.
B. Forfeiture
A trial court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] (People v. Ervin (2000) 22 Cal.4th 48, 90.) However, [a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Lang (1989) 49 Cal.3d 991, 1024; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)
Defendant contends there were four errors with respect to the manner in which the trial court instructed the jury with CALCRIM No. 3426. Defendant first contends that the trial court erred by failing to modify the blank field in the first paragraph to state that the jury was to consider the voluntary intoxication evidence in deciding whether [she] acted with the specific intent to sell PCP. Defendant next contends that in the third paragraph (the paragraph that begins, In connection with . . .) the trial court inserted incomplete phrases in the blank fields concerning the charge and specific intent element. Defendant further contends that the trial court erred in deleting from the same paragraph the requirement that [i]f the People have not met this burden [i.e., proof of specific intent beyond a reasonable doubt], you must find the defendant not guilty of _____. Defendant lastly contends that the trial court erred when it only loosely scribbled-out the forgoing requirement because the trial courts redaction indicated to the jury that the requirement did not apply to defendants case.
Defendant contends that the trial courts modifications to and omissions from CALCRIM No. 3426 left the instruction incomplete, and the voluntary intoxication instruction thus failed to guide the jury in its consideration of evidence of voluntary intoxication as it related to her liability for the specific intent crime of possession for sales of PCP. The trial court compounded its error, defendant asserts, by failing to define or explain in any instruction the specific intent required for possession for sale of PCP.
Defendant does not contend that the trial courts instructions to the jury misstated the law. Instead, defendant contends that the instructions were incomplete. As noted, however, [a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Lang, supra, 49 Cal.3d at p. 1024; People v. Samaniego, supra, 172 Cal.App.4th at p. 1163.) Because defendant did not object to the challenged instructions and request appropriate clarifying or amplifying language, defendant has failed to preserve this contention for review.
III. Gang Evidence
Defendant contends that the trial court erred in admitting Officer Lygas gang testimony, thus violating her state and federal constitutional rights to due process and rendering her trial fundamentally unfair. Defendant forfeited review of this contention. Moreover, even assuming that defendant preserved this contention for review and that the trial court erred in admitting the gang evidence, defendant suffered insufficient prejudice.
A. Background
The prosecutor asked Officer Lyga if there was anything significant about a female carrying PCP as opposed to a male. Defense counsel objected on the ground that the question was vague. The trial court asked Officer Lyga if he understood the question. Officer Lyga said he believed he understood the question. The trial court told Officer Lyga to [g]ive it a try. Officer Lyga testified, In the City of Los Angeles, not that were sexist or racist or whatever, but law enforcement tends to shy away from confronting females on a regular basis because of personnel complaints and searching issues. Its more common for gang members to let girlfriends or female counterparts maintain control and custody of the product because theyre less likely to be jammed, a slang term, by law enforcement. Heads defense counsel objected and moved to strike on the grounds of improper hypothetical and lack of foundation. Defendants defense counsel did not join the objection and motion to strike.
Prior to ruling on Heads objection and motion to strike, the trial court asked Officer Lyga, You mentioned gang activity. Is that applicable to carrying drugs? I dont know if I heard you correctly. Officer Lyga responded, Yes. In my experience, especially in the PCP world, PCP is controlled by gang members and it is common for gang members to allow the female portions of the gang members to carry the drugs and the contraband because theyre less likely to be stopped and searched by the police. The trial court overruled Heads objection and motion to strike.
On cross-examination, defendants defense counsel asked Officer Lyga, You mentioned something I thought was interesting. PCP is normally sold by gang members? Officer Lyga responded, Its manufactured and controlled by Black gang members of the Los Angeles area. However, Ive seen it sold by Hispanic gang members. Heads defense counsel interposed an unspecified objection. The trial court sustained the objection. Heads defense counsel started to move to strike a portion of Officer Lygas answer. The trial court interrupted and struck the portion of Officer Lygas testimony after Black gang members.
Before beginning cross-examination of Officer Lyga, Heads defense counsel moved for a mistrial on the ground that if she had known that Officer Lyga would testify about gangs, she would have requested an Evidence Code section 402 hearing and would have moved to exclude the evidence. Heads defense counsel argued that the gang evidence was highly inflammatory and there was no evidence that Head was connected to a gang. The trial court denied Heads mistrial motion, but stated that [i]f at some point we want to say that well it might be an interesting fact but the gang issue is not part of this case in any way, Ill certainly consider that. Heads defense counsel stated that if the trial court was willing to do so, then she would not further address the issue. The trial court stated its willingness, and defendants defense counsel stated, Thats going to be applied to both defendants. The trial court responded, Of course; sure.
In discussing jury instructions, the trial court proposed the following instruction to address the gang issue: The PCP expert talked about how gangs are connected to PCP. This testimony is limited only as to his basis for his various opinions. It is not relevant in any way and is not to be connected in any way to either defendant. The trial court asked the respective defense counsel if the instruction was okay. Defendants defense counsel responded, Thats fine. Heads defense counsel responded, Yes, your Honor. Consistent with its propose language, the trial court instructed the jury as follows: The PCP expert talked about how gangs are connected to the PCP. This testimony is limited only as to his basis for his various opinions. It is not relevant in any other way and is not connected in any way to either deft.
B. Forfeiture
[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (People v. Rogers (1978) 21 Cal.3d 542, 548; Evid. Code, 353, subd. (a).) Generally, failure to join in the objection or motion of a codefendant constitutes a waiver of the issue on appeal. [Citations.] (People v. Wilson (2008) 44 Cal.4th 758, 793.) A defendant forfeits review of a claim that the admission of gang evidence violated his due process rights by the failure to object on that ground in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 433-436.)
Defendant contends that the trial court erred in admitting Officer Lygas testimony that Black gang members control PCP in Los Angeles and use females to hold their drugs because such evidence was irrelevant, highly inflammatory, and violated his due process rights. Defendant forfeited review of this contention because defense counsel did not object to the admission of the challenged testimony on the ground that it was irrelevant, highly inflammatory, or violated his due process rights, and defense counsel did not join any such objection by Heads defense counsel.
Initially, the prosecutor asked Officer Lyga if there was anything significant about a female carrying PCP as opposed to a male. Defense counsel objected on the ground that the question was vague, not on the ground that it would elicit irrelevant or highly inflammatory testimony or violate his due process rights. Defendants failure to object on the grounds asserted on appeal forfeits appellate review. (People v. Rogers, supra, 21 Cal.3d at p. 548; Evid. Code, 353, subd. (a); People v. Partida, supra, 37 Cal.4th at pp. 433-436.) When Officer Lyga responded to the question by testifying that gang members have females carry drugs to avoid police detection, Heads defense counsel objected and moved to strike on the grounds of improper hypothetical and lack of foundation, not that the question called for irrelevant or highly inflammatory testimony or violated Heads due process rights. Defendants defense counsel did not object to the question on any ground or join Heads defense counsels objection and motion to strike although the grounds for Heads objection and motion to strike would, in any event, have been inadequate to preserve the contention defendant raises on appeal. Accordingly, defendant forfeited review of Officer Lygas response. (People v. Rogers, supra, 21 Cal.3d at p. 548; Evid. Code, 353, subd. (a); People v. Wilson, supra, 44 Cal.4th at p. 793; People v. Partida, supra, 37 Cal.4th at pp. 433-436.)
Defendant also has forfeited any issue concerning his defense counsels question of Officer Lyga on cross-examination about the sale of PCP by gang members and Officer Lygas response that, in Los Angeles, PCP is manufactured and controlled by Black gang members. Defendant cannot complain about the question because defense counsel asked it. Defendant cannot complain about the answer because she did not object to the answer or join Heads defense counsels objection. (People v. Rogers, supra, 21 Cal.3d at p. 548; Evid. Code, 353, subd. (a); People v. Wilson, supra, 44 Cal.4th at p. 793; People v. Partida, supra, 37 Cal.4th at pp. 433-436.)
C. Application of Relevant Principles
Only relevant evidence is admissible . . . . (People v. Harris (2005) 37 Cal.4th 310, 337; Evid. Code, 210, 350.) Evidence is relevant if it tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citation.] (People v. Harris, supra, at p. 337.) Trial courts have broad discretion in determining whether evidence is relevant (ibid.) and we review a trial court ruling on the admissibility of evidence for an abuse of that discretion (People v. Waidla (2000) 22 Cal.4th 690, 717). Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (People v. Partida, supra, 37 Cal.4th at p. 439, citing People v. Watson (1956) 46 Cal.2d 818, 836.) [T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.)
Officer Lyga testified that, in Los Angeles, PCP is controlled by Black gang members who use females to hold their drugs because the police are less likely to stop and search females. Head is Black. Defendant is female and Black. No evidence was adduced at trial that Head or defendant was a member of or associated with a gang. Thus it would appear that the gang evidence had no relevance in this case. The trial court seemed to state as much in the comments it made when it denied Heads motion for a mistrial and in its limiting instruction to the jury. When Heads defense counsel argued in support of Heads motion for a mistrial that there was no evidence that Head was remotely connected to a gang, the trial court responded, You make an interesting point. . . . If at some point we want to say that well it might be an interesting fact but the gang issue is not a part of this case in any way, Ill certainly consider that. The trial courts limiting instruction instructed the jury, in part, that Officer Lygas testimony about the connection between gangs and PCP was not connected to Head or defendant in any way.
Even if, however, Officer Lygas challenged testimony was not relevant, any error in admitting the testimony did not render defendants trial fundamentally unfair and was harmless because the remaining evidence that defendant possessed the PCP for purposes of sale was overwhelming.[4] Defendant was found in possession of 15 milliliters of a liquid that contained PCP and 10 clear plastic bags. One twentieth of a milliliter of liquid PCP would allow a user to be intoxicated for 24 hours and 15 milliliters of liquid PCP is a sufficient quantity to half dip about 300 cigarettes. The street value of 300 doses of PCP is between $3,000 and $6,000. End users of PCP use plastic bags to help avoid police detection and contamination. Thus, it is not reasonably probable that defendant would have received a more favorable verdict had the trial court excluded the gang evidence. (People v. Partida, supra, 37 Cal.4th at p. 439; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is conditionally reversed and remanded to the trial court to permit it to review the personnel records of Officers Orozco and Franco and to issue a discovery order, if warranted. If, after its review, the trial court determines that the requested personnel records contain no information relevant to dishonesty, then the trial court is to reinstate the judgment. If the trial court determines that relevant information exists and should be disclosed, the trial court shall order disclosure and permit defendant an opportunity to demonstrate prejudice. If defendant is able to show that there is a reasonable probability that the outcome of her trial would have been different had the information been disclosed, the trial court shall order a new trial.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] Defendant was tried with codefendant James Head. Head is not a party to this appeal.
[2]Pitchess v. Superior Court (1974) 11 Cal.3d 531.
[3] Unmodified, CALCRIM No. 3426, the voluntary intoxication instruction, provides:
You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with _____
A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
[Do not consider evidence of intoxication in deciding whether _____ <insert non-target offense> was a natural and probable consequence of _____ <insert targetoffense>.]
In connection with the charge of _____ <insert first charged offense requiring specific intent or mental state> the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with _____ <insert specific intent or mental state required, e.g., the intent to permanently deprive the owner of his or her property or knowledge that . . .>. If the People have not met this burden, you must find the defendant not guilty of _____ <insert first charged offense requiring specific intent or mental state>.
<Repeat this paragraph for each offense requiring specific intent or a specific mental state.>
You may not consider evidence of voluntary intoxication for any other purpose. [Voluntary intoxication is not a defense to _____ <insert general intent offense[s]>.]
[4] We note that, in support of her argument that the gang evidence was irrelevant, defendant asserts on appeal that Officer Lyga did not in any way rely on the gang evidence in reaching his expert opinion that defendant possessed the PCP with intent to sell. In fact, Officer Lyga relied on the fact that defendant was a female in possession of PCP in forming his opinion that defendant possessed PCP for the purpose of sale. That defendant was a female in possession of PCP was a basis for Officer Lygas gang testimony.
