P. v. Munoz
Filed 2/5/13 P. v. Munoz CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD MUNOZ, JR.,
Defendant and Appellant.
C069790
(Super. Ct. No. 10F06036)
While
serving an indeterminate sentence in state
prison, guards stopped defendant Richard Munoz, Jr., as he pushed a cart of
his belongings while moving between cells.
After guards found a green leafy substance in defendant’s belongings,
defendant gave a urine sample that tested positive for a metabolite of
marijuana. An information charged
defendant with knowingly possessing marijuana while incarcerated. (Pen. Code, § 4573.6.)
sentenced him to two years in state prison and imposed a restitution fine. On appeal, defendant challenges the
admissibility of the urinalysis evidence. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An
information charged defendant with knowingly possessing marijuana while
incarcerated in state prison. During the
jury trial, the court granted the prosecution’s in limine motion to admit
urinalysis evidence. The court admitted
the evidence for the purpose of showing the results and not to show any
propensity or tendency to possess marijuana.
The following evidence was introduced at trial.
In 2010
defendant was serving a sentence in state prison for a prior conviction. While moving from one cell to another,
defendant pushed a cart containing his personal belongings. As defendant approached a gate between the
prison’s main yard and several buildings, Correctional Officer Steven Novikoff
checked defendant’s identification card.
Another inmate helped defendant move the cart.
Novikoff
was responsible for inspecting inmates’ property when they passed through the
prison gate. Prior to defendant’s
passing through the gate, Novikoff instructed him to submit to a search of the
cart. While defendant stood to one side,
Novikoff searched the cart. Some of the
items were marked with defendant’s name; others bore the name of his cellmate,
Carrizosa.
Novikoff’s
search unearthed several unauthorized items, including a metal locker and
cigarette lighters. As the search
progressed, Navikoff found plastic wrap rolled up in a bindle and wrapped in a
paper towel. Inside, Novikoff found a green
leafy substance. Novikoff showed the
bindle to a fellow correctional officer, Patrick Garrity, who confirmed it
looked like a green leafy substance.
Novikoff
asked defendant, “Is this your marijuana?â€
Defendant shrugged and said, “Yeah, it’s mine.†Garrity noticed defendant did not appear
surprised when Navikoff asked about the marijuana. Garrity handcuffed defendant and took him to
a holding cell.
Novikoff
took the bindle to the prison’s custody complex. He did not contact defendant’s cellmate,
Carrizosa, about the marijuana. Novikoff
admitted that under normal circumstances he would be searching an individual
inmate’s property; it was unusual to search property where some belonged to one
inmate and some belonged to another inmate.
Later that day,
another correctional officer collected urine samples from both defendant and
his cellmate, Carrizosa. A criminalist
who conducted a urinalysis on both samples testified both samples contained
11-nor-9-carboxy-THC, a metabolite of marijuana.
The parties
stipulated to the results of the urinalysis, a stipulation which was read to
the jury. The stipulation stated: “Detection of 11-nor-9-carboxy-THC in urine
generally indicates use of marijuana within 1-3 days. However, the metabolite may be detected in
the urine for weeks in heavy, chronic users.â€
The court instructed the jury that the urinalysis evidence was admitted
for the purpose of showing the results, and not to show any propensity or
tendency to possess marijuana.
Another
criminalist, after performing a series of laboratory tests, confirmed the green
leafy substance found in the bindle was marijuana. The criminalist determined that the amount of
marijuana in the bindle was 0.17 gram, a usable amount of marijuana.
Defense
Defendant
was convicted of a crime of moral turpitude in 1997 at the age of 16 and had
been incarcerated since then. At the
time of trial, defendant was 32 years old.
His first parole hearing is to take place in 2019.
In August
2010 defendant and his cellmate, whom defendant referred to as Patrick Cardoza,
were directed to move into a new cell in a different building.
their cell onto a cart to facilitate the move.
Defendant, with the help of another inmate, moved the cart. Defendant’s cellmate’s disability prevented
him from helping to move the cart.
Defendant
did not inspect his cellmate’s belongings before loading them onto the
cart. Defendant did not know the
marijuana was in the cart when Novikoff stopped him and searched it. Defendant was familiar with marijuana and
used it in prison.
Defendant
described the search. Novikoff removed
several items from the cart. When
Novikoff removed an item from the cart that defendant recognized as marijuana,
he asked defendant if it was his.
Defendant responded quickly; he shrugged and smiled and told Novikoff
the marijuana belonged to him. Defendant
testified that when Novikoff asked him, he just reacted. He was lying when he said the marijuana was
his.
Defendant
falsely said the marijuana was his because he was adhering to the “single most
important rule†in prison, the no-“snitching†rule enforced by fellow
inmates. Defendant also lied because he
did not want to get anyone else in trouble and feared being beaten or harmed if
he told the truth. Other inmates were
watching the search. Defendant smiled
when questioned by Novikoff because he was not surprised that Novikoff found
marijuana in the cart.
Defendant
continued the disciplinary hearing for a violation of prison rules while the
charges were pending. If he was found in
violation of the rules, that would affect various privileges and make it more
difficult to be paroled. However, the
parole hearing would not take place for nine years, and defendant did not
expect to be paroled at the first hearing.
Defendant believed the consequences of snitching would be much worse; he
feared for his safety in prison.
Defendant’s
cellmate was transferred to another facility after defendant’s arrest. Defendant “never had the opportunity†to deny
ownership of the marijuana once his cellmate left the prison, and in any event,
he would not do that because “[t]elling is telling.†The person who would come after him for
telling would not necessarily be the person who was “snitch[ed] on.†Defendant testified that he had used
marijuana in the past but had never been caught.
The jury
found defendant guilty as charged. The
court sentenced defendant to two years in state prison. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant challenges the trial
court’s admission at trial of the urinalysis test. According to defendant, the court abused its
discretion because the evidence constituted improper character evidence and was
unduly prejudicial.
Background
At the motion in limine hearing,
defense counsel objected to the admission of the urinalysis evidence under
Evidence Code section 1101, as improper character evidence. Defense counsel noted that no quantitative
analysis was performed, proving only that defendant and his cellmate ingested
marijuana, not that they possessed the marijuana on the cart.
The
prosecution offered the evidence as circumstantial
evidence of possession and of defendant’s knowledge of the presence of the
substance. The prosecution theorized
that the evidence also benefitted the defense because it revealed that
defendant’s cellmate also tested positive.
Defense counsel objected to the use of the urinalysis results to show
knowledge but offered to stipulate that defendant was familiar with marijuana.
The court
requested, and the parties provided, a stipulation that the tests revealed the
presence of a metabolite of marijuana.
The court allowed the evidence for the limited purpose of its relevance
to possession and not for showing defendant had a predisposition to commit the
crime. The trial court noted the
evidence could be viewed as character evidence, but found the test results were
relevant and material to the case. In
addition, the court found that a jury instruction informing the jurors the
evidence could only be used to determine possession would be appropriate.
During its
deliberations, the jury sent the court a note stating, in part: “We, the jury in the above entitled action,
request the following: [¶] 1.) A
clarification of item #2 of page 22 as to the specific time that the
sta[t]ement applies. Substance’s
presence in the cart @ time of search or substance presence @ any time that day
on August 4th, 2010, or at any time at all.â€
The court
determined the note referred to page 22 of the jury instructions, which
contained CALCRIM No. 2748, stating the elements required to establish a
violation of section 4573.6.
name="_ftnref3" title="">[3] The second element on page 22 read: “The defendant knew of the substance’s
presence.†The jury’s question concerned
the court since it might indicate confusion over how to consider the urinalysis
evidence. However, the court also noted
that both parties had discussed the proper consideration of the urinalysis
evidence during closing arguments in an effort to clarify the issue. Finally, the court postulated that the jury’s
question might not even pertain to the urinalysis evidence.
The court
proposed querying the jury further to clarify the question. Defense counsel asked the court to stop jury
deliberations until the jury was able to answer the clarification request. The court agreed, but before it could advise
the jury, the jury reached its verdict.
The jury also returned a response to the court’s request for further
clarification of the prior question, stating:
“The answers to these questions are no longer needed.â€
Discussion
Under
Evidence Code section 352, a trial court may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will
necessitate an undue consumption of time or create a substantial danger of
undue prejudice by confusing the issues or misleading the jury. The trial court has broad discretion in
deciding whether the probative value of evidence is substantially outweighed by
the potential danger of prejudice. (
203 Cal.App.4th 155, 167-168.) We
review the court’s decision for an abuse of discretion. (People
v. Branch (2001) 91 Cal.App.4th 274, 282.)
Evidence
Code section 1101, subdivision (a) provides that “evidence of a person’s
character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or
her conduct) is inadmissible when offered to prove his or her conduct on a
specified occasion.†Section 1101,
subdivision (b) allows for the admission that a person committed a crime,
civil wrong, or other act when relevant to prove some fact other than the
person’s disposition to commit such an act.
Defendant
argues the urinalysis evidence amounted to evidence of a separate, uncharged
crime of possessing marijuana in prison.
Therefore, according to defendant, the court’s admission of the evidence
must meet the higher “substantial probative value†standard applied to evidence
of uncharged crimes.
We disagree
with defendant’s analysis. The
urinalysis test result provides circumstantial evidence that defendant
possessed marijuana while in prison. The
urinalysis evidence was not introduced to support the uncharged crime of
possession. The court instructed the
jury to consider the evidence only for the purpose of showing results,
abused its discretion in admitting the evidence under Evidence Code section
352, not the more stringent standard under Evidence Code section 1101.
Defendant
argues the prosecution’s argument that the evidence is relevant runs afoul of
our decision in People v. Spann (1986)
187 Cal.App.3d 400 (Spann). In Spann,
an inmate defendant was observed to be under the influence and Valium was found
in his system. This evidence was used to
prove he possessed a narcotic in jail in violation of section 4573.6. (Spann,
at pp. 401-402.) The sole proof that the
defendant possessed the Valium was the presence of it in his body. (Id.
at p. 403.) We reversed and found the
use of a controlled substance does not establish possession under section
4573.6 (Spann, at pp. 408-409), and
“mere evidence of use (or being under the influence) of a proscribed substance
cannot circumstantially prove its ‘possession.’ †(id. at p. 408).
Defendant
argues the same situation exists in the present case, and therefore evidence of
his prior use of marijuana cannot be used to establish that he had possession
of the marijuana found in the search. We
disagree.
Here,
unlike the facts we encountered in Spann,
other evidence supported a finding that defendant knowingly possessed the
marijuana found in the cart. When
confronted by Novikoff, defendant confessed the drugs belonged to him. The drugs were found in a cart containing
defendant’s possessions and under defendant’s control. In Spann,
we did not hold that evidence of the defendant’s use of a drug lacked all
probative value in establishing the element of possession. Instead, we found “mere evidence of useâ€
cannot circumstantially prove its possession.
Prior to
admission of the evidence, the trial court instructed the jury that the
“evidence is admitted for the purpose of showing the results and it is not admitted
to show any propensity or tendency to possess marijuana.†The instruction insured that the jury would
consider the urinalysis test only as evidence of possession and knowledge, and
lessened any possible prejudice from its admission.
The
urinalysis evidence provided just one piece of circumstantial evidence of
possession and knowledge, and was therefore probative on these issues. The court’s instruction limited any possible
prejudice from its admission. Given the
facts, we cannot find the trial court abused its discretion under Evidence Code
section 352 in finding the urinalysis test results admissible.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
ROBIE , J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise designated.
name="_ftn2" title="">[2] Defendant
alleges Patrick Cardoza is the person sometimes referred to in the record as
“Carrizosa.â€
