P. v. Browne

Filed 4/4/07 P. v. Browne 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Trinity)

----

A jury convicted defendant Henry Eugene Browne of receiving stolen property (Pen. Code,  496, subd. (a); count three) and possession of drug paraphernalia (Health & Saf. Code,  11364; count five). It acquitted him of transporting methamphetamine (Health & Saf. Code,  11379, subd. (a); count one) and possessing methamphetamine (Health & Saf. Code,  11377, subd. (a); count two).^[1] Imposition of sentence was suspended and defendant was placed on probation for three years on the condition, among others, that he serve 170 days of incarceration.

Defendant contends, and the People concede, the trial court erred reversibly by admitting evidence that he elected not to answer questions deputies directed at him during a traffic stop. For guidance on remand, we consider defendants claims that prejudicial photographs and a codefendants statement were erroneously admitted in evidence; and that CALJIC No. 17.01, which was limited to the stolen property count, should have applied as well to the paraphernalia count.

FACTS

Prosecution case-in-chief

On June 27, 2005, about 8:00 p.m., Trinity County Sheriffs deputies stopped defendant and Steven Raines,^[2]as Raines drove on Highway 3 in the area of Hayfork. The deputies knew that Raines was not a licensed driver, and they confirmed his unlicensed status before approaching the car. The car belonged to defendant, who was seated in the front passenger seat.

Raines admitted his unlicensed status. Thereafter, Deputy Hanover returned to the patrol car to draft a citation. Raines remained in the drivers seat while Deputy Whitman observed from outside defendants car.

Whitman twice saw Raines moving his left hand into his waistband and then back into his lap. The motions looked as if [Raines] was trying to conceal something, although no object was visible.

Hanover eventually had Raines leave the car to sign the citation. Whitman then asked Raines what was in his waistband. Raines made no verbal response, but he put his hand over his waistband. Whitman asked Raines to move his arm, which he did, but then he replaced the arm, again concealing the waistband.

Whitman removed Rainess hand and flipped up the waistband, revealing a clear plastic bag containing 0.1 grams of a substance containing methamphetamine. Raines was arrested. Whitman searched the car.

Items of narcotics ingestion paraphernalia, including a glass pipe, were recovered from a compartment in the drivers side door. A pouch containing additional narcotics ingestion paraphernalia was recovered from a space between the drivers seat and the center console.

Several items that had been taken from John Stokke, who was incarcerated at the time, were located on the floorboard behind the drivers seat and also in the trunk. Stokke testified that he had not given anyone permission to dispose of his property.

Also inside the trunk were two disposable cameras. The exposed film from those cameras bore images of persons including Rainess male child.

Raines admitted that the methamphetamine found on his person was his. However, he denied knowledge of Stokkes property. During the traffic stop, Hanover attempted to speak to defendant about some of the items of Stokkes property that were found in defendants car. Defendant told Hanover to either arrest him or let him go.

Defense

Glenda Raines, the mother of codefendant Raines, testified that she is a tenant living in a trailer on Stokkes property. Glenda explained that her daughter is Gail Brown, and Browns boyfriend is John Klopfer. After Stokkes arrest, Brown and Klopfer moved into the house on Stokkes property, with the permission of Stokkes sister. Brown and Klopfer boxed several items of Stokkes possessions and placed them on the front porch in anticipation of disposal. Stokkes sister gave Klopfer permission to do whatever he seen fit with the property. At some point, Glenda discussed the property on the porch with defendant. Defendant asked if he could have some computer parts on the porch. Glenda told him she [didnt] see why not, because theyre all junk anyway and theyre going to be took [sic] to the dump.

Glenda spoke to a defense investigator a month before trial. She had not mentioned giving defendant permission to take the computer parts. Glenda did not give defendant permission to take Stokkes pill bottles.

Defendant did not testify.^[3]

DISCUSSION

I

Defendant contends, and the Attorney General concedes, the trial court erroneously admitted evidence that he elected not to answer questions a deputy directed at him during the traffic stop. We accept the Attorney Generals concession.

Background

Prior to trial, the court stated that a defense objection would be sustained if the prosecutor sought to elicit testimony regarding a person exercising their constitutional right to remain silent. During his opening statement, the prosecutor told the jurors that during the traffic stop the officers attempted to speak with defendant, but he basically says, Im not going to talk to you. Arrest me.

Before delivering his opening statement, defendants counsel objected to the prosecutors reference to defendants refusal to speak, citing Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106]. The trial court overruled the objection.

During direct examination of one of the deputies the prosecutor elicited testimony that the deputy attempted to speak to defendant about some of the items of Stokkes property that were in defendants car but defendant told him to either arrest him or let him go. Defendant reiterated his objection, but it was overruled.

The jury was instructed with CALJIC No. 2.71.5 on adoptive admissions.^[4] During opening summation, the prosecutor expressly referred to defendants refusal to speak to the deputy. Later during opening summation, the prosecutor summarized CALJIC No. 2.71.5 and stated, Basically, if hes presented with information and he doesnt explain that, you dont have to, but you can consider that against him. It may be considered against him as indicating an admission that the accusation was true. So when the officers say, We found this stuff in your property, the way he reacted to that -- [] . . . [] So the law allows you to consider that in determining guilt in this case, whether that accusation is true.

In his summation, counsel for Raines also referred to defendants refusal to speak with the officer. Rainess counsel contrasted defendants refusal with Rainess election to make statements to the deputies, even after Raines was advised of his right to remain silent. Rainess counsel argued that Rainess statements were honest. Rainess counsel also referred to CALJIC No. 2.71.5, arguing it applied when someone fails to explain, when confronted, but not when someone is confronted with things and they are honest, as was Raines.

Analysis

The Attorney General concedes that consideration of defendants silence as evidence of guilt was improper in law. (Italics omitted; citing People v. Lopez (2005) 129 Cal.App.4th 1508, 1519, 1525-1526 [post-Miranda^[5]invocation of right to silence]; see Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, 283, and cases cited therein [pre-Miranda invocation of right to silence].) The Attorney General recognizes [i]t is difficult, if not impossible, to interpret [defendants] statement as something other than a verbal election not to answer potentially incriminating questions. The Attorney General further concedes the absence of any good faith argument that the evidence against defendant rendered unimportant, or of minor impact, the logical inferences flowing from defendants silence with respect to his guilt of receiving stolen property (count three), inasmuch as the prosecutor and Rainess counsel drove home such inferences. (See Yates v. Evatt (1991) 500 U.S. 391, 405 [114 L.Ed.2d 432].) Defendants count three conviction must be reversed.^[6]

Regarding possession of paraphernalia (count five), the Attorney General concedes that the evidence, while adequate, was not particularly strong. (Italics omitted.) He further concedes that the most solid path to conviction on count five was the inference that, if defendant was aware of the stolen property at various locations throughout his car, then he also would be aware of the two containers of drug paraphernalia in the vicinity of the drivers seat. Because the premise of this inference, i.e., that defendant was aware of the stolen property, reasonably could be based substantially on consideration of his election of silence, the count five conviction must be reversed.^[7]

II

Defendant contends the trial court violated his due process rights by allowing the jury to consider extremely prejudicial photographs of an infant child with a cigarette in his mouth and the words White Power written across his bare chest. We consider this point for guidance in the event of a retrial.

Background

Evidently for the purpose of showing that codefendant Raines was aware of the stolen property in the trunk of defendants car, the prosecutor introduced evidence that the trunk also contained two disposable cameras with film bearing 16 images of, among other things, Rainess child, the childs mother Sara Smith, a person named Billy Smith, and defendant.

Peoples exhibit 37 shows the child with a pacifier in his mouth and the words White power written upon his bare chest. Peoples exhibit 38 shows the child, with the writing faded but still visible,^[8]and what appears to be an unlit cigarette in his mouth. Peoples exhibit 39 shows the child with two adults; the male adult appears to be handing the cigarette to the child.

Defendants counsel initially asserted that, because the ownership of the car had been stipulated to, the photographs from the trunk were completely irrelevant to the case. The trial court responded that the photographs show the connection between the individuals in the car, and they were in the back with the stolen property. . . . [] . . . [] And they have [Rainess] child. There is an argument that somebody didnt know all the stolen property was in the back of the car, somebody else could have put it there. And here are these photographs that -- of [Rainess] child in and among all that property. So, yes, its got probative value.

Rainess counsel expressly limited his objection to Peoples exhibits 37, 38 and 39, arguing they were highly inflammatory and should be excluded under Evidence Code section 352.^[9]

Defendants counsel stated that he had the same objection, and he urged the trial court to go through each photo. The trial court refused to examine each photograph.

Rainess counsel reiterated that he objected only to Peoples exhibits 37, 38 and 39. The court responded: All right. Objections overruled. All the photos will come in. They have probative value. Sure, there is some prejudicial value or effect. But all relevant evidence is admissible, and we cant sanitize what was found in the trunk of the car because we dont like the cigarette in the childs mouth.

Rainess counsel responded, Its more than that. Its the words white power written across his chest. There is no evidence linking Mr. Raines to those photographs, other than his child is in it. There are numerous photographs that have Mr. Raines in it and Sara and Billy Smith. I dont have a problem with those identifying evidence. Were getting into compound evidence. That evidence is already here. The only thing that can do is inflame the jury. Defendants counsel added, there was no testimony presented about gang activity, and I believe its 352. The court ruled, Its not 352. Its all part and parcel of what was found, and the jury has a right to see it. The court admitted exhibits 25 through 40.

Defendants counsel requested an order forbidding the prosecutor from using the photographs in a prejudicial manner. The court denied the request as unnecessary. Thereafter, Rainess counsel renewed his section 352 objection, reiterated that the disputed photographs were compound in the sense there were other photographs in there that can give the same evidence, and argued that the disputed photographs can only be used to inflame a jury. The court stood by its ruling.

Analysis^[10]

Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citations.] [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.] (Peoplev.Scheid (1997) 16 Cal.4th 1, 13-14.)

The trial court opined that the photographs were relevant to rebut Rainess anticipated argument that he didnt know all the stolen property was in the back of the car, somebody else could have put it there. The court believed the presence in the trunk of photographs of Rainess son had probative value to show that Raines had knowledge of the stolen property.

On appeal, the Attorney General echoes the trial court in asserting that the two photographs were relevant as to Raines. Although he concedes that defendants convictions must be reversed, the Attorney General does not explain how the two photographs of Rainess son could be relevant in a retrial of defendant alone. Any such contention is forfeited. (See Peoplev.Hardy (1992) 2 Cal.4th 86, 150; Peoplev.Wharton (1991) 53 Cal.3d 522, 563.)

Assuming exhibits 37 and 38 have some minimal relevance to the case against defendant, that relevance is substantially outweighed by the prejudicial impact of the words White Power visible on the childs chest.

Prejudice in section 352 does not refer simply to evidence that is damaging to the defendant. Instead, [t]he prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. [Citation.] (People v. Smith (2005) 35 Cal. 4th 334, 357, original italics.)

At best, the photographs depicted defendant as a person who associated with one or more racists who take advantage of, or abuse (by furnishing tobacco to), a child in their care. At worst, the jurors could have inferred that defendant himself was a member of a white supremacist group and a child abuser. We reject the Attorney Generals argument that no prejudice was threatened as to [defendant], because the argument overlooks the racist content of both photographs.

In this case, exhibits 37 and 38 tended uniquely to evoke an emotional bias against defendant, while having very little (if any) effect upon the issues. The photographs were prejudicial within the meaning of Evidence Code section 352. (People v. Smith, supra, 35 Cal.4th at p. 357.) Exhibits 37 and 38 must be excluded from any retrial.

III

Defendant contends the trial court violated his Sixth Amendment confrontation rights under Aranda,Bruton, and Crawford when it admitted a portion of Rainess hearsay statement to the deputies.^[11] We consider this point for guidance in the event of retrial of this case.

Background

Prior to trial, defendants counsel objected to admission of Rainess statement to the deputies regarding the contraband found in the car. Counsel explained that, apparently, Raines had told the officers that it wasnt his. That would be self-serving hearsay and -- so hearsay and 352 is the basis for that objection. The prosecutor responded that Raines had said the meth was his. He didnt know anything about the hype [sic] kits or the stolen property in the car. Hes not saying [defendant] does. Hes just saying he doesnt know anything about it. When the trial court opined that the evidence sounds admissible to me, defendants counsel explained, Im not talking about the statements he made admitting to possession of the methamphetamine. Im talking about statements that he made he did not possess or didnt know of the hypes and some of the other stuff. The trial court ruled, Its part of the admission. It sounds like it was part and parcel of the same conversation or the same set of issues. This is mine or Thats not. Well, I think it all comes in to explain the direct party admission.

Both the prosecutor and Rainess counsel mentioned Rainess denial in opening statements. The prosecutor elicited evidence of the denial during testimony.

Analysis

The Attorney General contends defendant has forfeited any Aranda-Bruton-Crawford claim by failing to assert it at trial. But defendant also renews his hearsay objection, contending that, under section 1230, only that portion of Mr. Raines statement that was against his own penal interest, was admissible. The hearsay claim has merit.

[T]the precedents in the hearsay area provide a persuasive reminder that declarations against penal interest may contain self-serving and unreliable information and, consequently, an approach which would find a declarants statement wholly credible solely because it incorporates an admission of criminal culpability is inadequate. [Citation.] As scholars have observed, a self-serving statement lacks trustworthiness whether it accompanies a disserving statement or not. [Citations.] Moreover, that a hearsay statement may be facially inculpatory or neutral cannot always be relied upon to indicate whether it is truly self-inculpatory, rather than merely [an] attempt[] to shift blame or curry favor. [Citation.] Even a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect. [Citation.] Ultimately, as the high court has noted, whether a statement is self-inculpatory or not can only be determined by viewing it in context. [Citation.] [] In view of such concerns, and as the People concede, we long ago determined that the hearsay exception should not apply to collateral assertions within declarations against penal interest. [Citation.] In order to protect defendants from statements of unreasonable men if there is to be no opportunity for cross-examination, we have declared section 1230s exception to the hearsay rule inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant. [Citations.] (People v. Duarte (2000) 24 Cal.4th 603, 611-612.)

Thus the People, as the proponent of Rainess hearsay statements, may introduce only those portions made admissible by section 1230. Contrary to the trial courts evident belief, the People were not entitled to offer additional portions under section 356; only an adverse party could do so.^[12] Because Raines will not be a party to any retrial, we need not consider whether Raines could introduce other portions of his statement. (People v. Arias (1996) 13 Cal.4th 92, 156.)

IV

Defendant contends his count five conviction must be reversed because the trial courts unanimity instruction (CALJIC No. 17.01) was inexplicably limited to count three. We consider this point for guidance in the event of retrial.

At the instructions conference, counsel for Raines requested CALJIC No. 17.01 as to count three. The prosecutor later confirmed that the instruction was limited to that count.

The trial court instructed the jury that the prosecution had introduced more than one item of allegedly stolen property, upon which a conviction may be based. Defendant correctly contends that, just as count three was based upon more than one item of stolen property, count five was based upon two different methamphetamine smoking kits in his car. On retrial, CALJIC No. 17.01 must be made applicable to both counts.

DISPOSITION

The judgment is reversed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

RAYE , J.

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^[1] A count of unauthorized possession of prescription medicine (Bus. & Prof. Code,  4060; count four) was dismissed pursuant to Penal Code section 1118.1.

^[2] Raines was a codefendant at trial. He is not a party to this appeal.

^[3] Codefendant Raines did not testify.

^[4] CALJIC No. 2.71.5 told the jury: If you should find from the evidence that there was an occasion when a defendant, one, under circumstances which reasonably afforded him an opportunity to reply, and, two, failed to make a denial or made false, evasive, or contradictory statements in the face of an accusation, expressed directly to him or in his presence, charging him with the crime for which this defendant now is on trial, or tending to connect him with its commission, and, three, that he heard the accusation and understood its nature, then the circumstances of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation was true. Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and conduct of the accused in the face of it. Unless you find that a defendants silence and conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement.

^[5]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694].

^[6] Unless justified by evidence unrelated to defendants silence, CALJIC No. 2.71.5 should not be given in any retrial of this case.

^[7] In light of our conclusion, it is not necessary to consider defendants contention that the cumulative effect of the errors set forth in his opening brief requires reversal.

^[8] We reject the Attorney Generals argument that the child appears without such marking, i.e., without the written words, in Peoples exhibit 38.

^[9] Hereafter, undesignated statutory references are to the Evidence Code.

^[10] Defendant does not renew the claim that Peoples exhibit 39 was erroneously admitted into evidence. The photographs relevance to the case against defendant is not apparent from this record.

^[11]People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476]; Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177].

^[12] Evidence Code section 356 provides: Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.