P. v. Cuevas

Filed 6/19/07 P. v. Cuevas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed.

Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Marissa Bejarano and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Luis Vasquez Cuevas appeals from his conviction of transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). Defendant contends the trial court erred in (1) excluding evidence that the interpreter for defendants interrogation was a jail inmate who was not certified as an interpreter; (2) failing to instruct the jury on accomplice statements; and (3) failing to instruct the jury that the prosecution was required to prove the corpus delicti without defendants or his codefendants admissions. Defendant also contends the evidence was insufficient to support his conviction. We find no prejudicial errors, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

On October 26, 2005, Detective Clayton Bailey of the San Bernardino Sheriffs Department pulled over the vehicle defendant was driving because the vehicles registration had expired in February 2005. Codefendant Vasquez was a passenger in the vehicle. Detective Bailey could see defendant in the drivers seat during the stop and did not see defendant throw anything from the vehicle. However, Bailey was not able to observe Vasquez at all times.

Detective Bailey called in to dispatch the names of defendant and Vasquez. Detective Bailey instructed defendant to sit in the back seat of his patrol car and instructed Vasquez to sit on the curb.

Detective Bailey noticed a piece of black plastic outside defendants vehicle about a foot from the passenger door, the window of which was rolled down. He picked up the plastic and saw a white substance on it that he recognized as methamphetamine. Detective Bailey arrested defendant and Vasquez, and he searched their vehicle. He found a glass vial with a burnt end between the passenger and driver seats; he believed the vial was a pipe used to smoke methamphetamine. He also found a black bag of similar consistency to that that the substance was wrapped in.

Detective Bailey transported defendant and Vasquez to the jail and began interviewing them. Defendant did not speak English, so Detective Bailey used Richard Ceteno to interpret. Ceteno spoke Spanish as his first language and had spoken it his entire life. He had learned Spanish in school in Puerto Rico, but he also understood the different styles of Spanish from Mexico. Ceteno was not employed by the sheriffs department or the County of San Bernardino, and he was not employed as an interpreter.

Detective Bailey separately asked defendant and Vasquez about the substance outside the passenger door; both denied knowing anything about it. A short time later, Detective Bailey heard from other inmates at the jail that defendant wanted to talk. Without Cetenos assistance, Detective Bailey, who spoke a little Spanglish, asked defendant where he had had the drugs. Defendant answered, with words and gestures, that he had had them in his pocket. Detective Bailey attempted to ask how the drugs had gotten outside the car without blowing away. He could not communicate his question to defendant, so he called Ceteno back in to interpret. Through Ceteno, defendant said he had thrown the drugs from the car window when he stopped. He said he had obtained the methamphetamine in Fresno three days earlier.

Detective Bailey then questioned Vasquez again with Cetenos assistance. Detective Bailey incorrectly told Vasquez that defendant had said the drugs belonged to Vasquez. Vasquez responded that the drugs must be both of ours.

The parties stipulated the substance found had consisted of a total of .63 grams of methamphetamine contained in a piece of black plastic measuring one inch by one and a half inches.

Ceteno testified he had spoken to defense investigators and defense counsel before trial and had falsely told them that defendant and Vasquez had both denied knowledge of the drugs and had both always denied their culpability.

Defendant and Vasquez were tried jointly and both were found guilty of transportation of a controlled substance (Health & Saf. Code,  11379, subd. (a)), but not guilty of an additional charge of possession of drug paraphernalia (Health & Saf. Code,  11364, subd. (a)). Defendant was placed on three years formal probation and was ordered to serve 230 days in jail.

III. DISCUSSION

A. Exclusion of Evidence That Ceteno Was a Jail Inmate and Was Not Certified as an Interpreter

The prosecutor made a pretrial motion to admit defendants statements through Ceteno into evidence and to exclude evidence that Ceteno was a jail inmate. Defense counsel objected to the introduction of defendants statements on the ground that Ceteno was not certified as an interpreter and was a jail inmate. The trial court ruled that defendants statements to Ceteno were admissible but excluded evidence that Ceteno was an inmate and was not a certified interpreter. Defendant contends these rulings violated his rights to present a defense, to a jury trial, to confront witnesses, and to due process.

1. Interpreters Inmate Status

In People v. Sanchez (1947) 30 Cal.2d 560 (Sanchez), on facts generally similar to those before us, the defendant contended on appeal that he had been prejudiced by the trial courts refusal to permit evidence that Escalera, the witness who had acted as an interpreter during the defendants interview by the district attorney, had been a jail inmate at the time of the interview. At the time of that interview, Escalera had an application for parole pending before a parole board that included the district attorney, and he was paroled after he interpreted the defendants statement. (Id. at p. 574.) The court held, These facts might, in the opinion of a jury, show a reasonable basis for an inference that the translation and the testimony of Escalera were influenced by a hope that he would be leniently treated by the officials if he aided in the conviction of defendant. [Citations.] If Escalera had testified to a statement by defendant which differed disadvantageously in any material respect from defendants testimony at the trial, then defendant might have substantial cause to complain of refusal to permit him to impeach Escalera by showing his possible motive. (Although the transcript does not show that a specific offer of proof was made, the inference seems clear, from the context surrounding the question and objection and from the unchallenged statement in the briefs that the same judge tried Escalera, that the trial court knew what the question was designed to elicit.) (Id. at pp. 574-575.) The court nonetheless found the error harmless because Escaleras testimony as to defendants statement substantially and in all material respects accords with the testimony of defendant, given through another interpreter. (Id. at p. 575.)

Here, the trial court ruled that Cetenos status as an inmate was irrelevant on the issue of his credibility. Under Sanchez, supra, 30 Cal.2d 560, we conclude this was error. As in Sanchez, the jury might reasonably have inferred that Cetenos translation and testimony were influenced by a hope of leniency; thus, his inmate status was directly relevant to the issue of his credibility. (Evid. Code, 210.) We next examine whether the error was prejudicial; a trial courts exclusion of evidence is reversible error only when there is a reasonable probability that admission of the evidence would have led to a result more favorable to appellant. (People v. Rodriguez (1986) 42 Cal.3d 730, 755, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant admitted his possession of the methamphetamine directly to Detective Bailey. Cetenos translation added only the superfluous details that defendant had obtained the methamphetamine in Fresno three days earlier and that defendant had tossed it out the car window. Thus, we conclude that even if the trial court had admitted evidence of Cetenos inmate status, there is no reasonable probability the jury would have reached a different result. (Rodriguez, supra, 42 Cal.3d at p. 755.)

2. Interpreters Lack of Certification

Defendant further argues the trial court erred in excluding evidence that Ceteno was not a certified interpreter.

We note that in argument to the jury, defendants counsel pointed out the deficiencies in Cetenos performance as an interpreter: Deputy Bailey . . . does not speak Spanish. He speaks Spanglish. . . . [] So they brought in an interpreter to help them. Somebody whos not a deputy. Somebody who doesnt even work for the county, the city, or anything. He just happened to be there. And they used him as an interpreter. You saw him on the stand. [] Ladies and gentlemen, that interpreter needed an interpreter. He couldnt understand half the questions that were being asked of him. How then can he interpret for a sheriffs deputy and give a proper answer? [] In addition, hes a liar. . . . Counsel for Vasquez similarly commented on Cetenos deficiencies as an interpreter, noting that he obviously was not an interpreter; he was straining to even understand the rather, I thought, simple English that I was speaking to him; and that it was obvious . . . as far as his English is concerned, its very poor.

We conclude that although no evidence was introduced that Ceteno was not a certified interpreter, his own performance apparently demonstrated that fact to the jury beyond question. Thus, even if we assume error in the exclusion of evidence of his lack of certification, there is no reasonable probability the jury would have reached a different result. (Rodriguez, supra, 42 Cal.3d at p. 755.)

B. Sufficiency of the Evidence

The prosecution relied on defendants and Vasquezs extrajudicial statements to establish their guilt. Defendant argues such reliance violated the corpus delicti rule, and as a result, the evidence was insufficient as a matter of law to support his conviction.

In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself--i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169, italics in original.) Similarly, the extrajudicial statements of a codefendant may not be used to establish the corpus delicti. (See Jones v. Superior Court (1979) 96 Cal.App.3d 390, 396.)

The elements of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm. [Citation] Proof of the corpus delicti need not be beyond a reasonable doubt . . . . [Citation.] (People v. Diaz (1992) 3 Cal.4th 495, 529 (Diaz).) Such proof may be circumstantial and need only be a slight or prima facie showing permitting the reasonable inference that a crime was committed. [Citation.] (People v. Jennings (1991) 53 Cal.3d 334, 364 (Jennings).) The identity of the perpetrator is not an element of the corpus delicti. [Citation.] (People v. Crew (2003) 31 Cal.4th 822, 837.)

The evidence was sufficient to establish the corpus delicti of the crime of transportation of methamphetamine under the standards stated in Diaz, supra, 3 Cal.4th 495, and Jennings, supra, 53 Cal.3d 334. Methamphetamine was found on a piece of black plastic on the ground outside the passenger side of the car that defendant was driving and in which Vasquez was a passenger. The fact that the substance was found close to the car was sufficient to permit a reasonable inference that the substance had been carried or moved from one location to another, even though the distance might have been short. Moreover, a suspected methamphetamine pipe was found inside the car between the passengers and drivers seats; that evidence was sufficient to permit a reasonable inference of knowledge of the nature and character of the substance as a controlled substance. The stipulated quantity of the substance was sufficient to permit a reasonable inference that the amount of the substance was a usable quantity. Thus, we conclude the evidence was sufficient to establish the corpus delicti of the crime of transportation of methamphetamine independent of defendants and Vasquezs statements.

C. Failure to Instruct on Accomplice Rule

At trial, evidence was introduced that Vasquez had told Bailey during interrogation that the methamphetamine must be both of ours. Defendant contends the trial court erred in failing to instruct the jury that Vasquez was an accomplice whose statement must be corroborated with other, independent admissible evidence that tended to connect defendant with the offense.

For purposes of the accomplice instructions, an accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. (Pen. Code,  1111; see also People v. James (1987) 196 Cal.App.3d 272, 284.)

Where the evidence is sufficient to warrant the conclusion by a jury that a witness implicating the defendant was an accomplice, it is the duty of the trial court to give instructions regarding accomplices and their testimony, whether or not the defendant has requested such instructions. [Citations.] (People v. Cooper (1970) 10 Cal.App.3d 96, 102.)Essentially, the trial court must instruct the jury that the testimony of an accomplice is to be viewed with distrust and that the defendant may not be convicted on the basis of an accomplices testimony unless it is corroborated. (People v. Hayes (1999) 21 Cal.4th 1211, 1271, citing People v. Zapien (1993) 4 Cal.4th 929, 982.)

Here, the trial court did not instruct the jury on the testimony of accomplices, and we will assume for purposes of argument that the failure to do so was error. However, an erroneous failure to give accomplice instructions is deemed harmless as long as the record contains sufficient evidence of corroboration. (People v. Lewis (2001) 26 Cal.4th 334, 370.) Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.] [Citation.] The evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. [Citation.] (Ibid., quoting People v. Hayes, supra, 21 Cal.4th at p. 1271 and People v. Fauber (1992) 2 Cal.4th 792, 834.)

Vasquezs statement to Bailey that the drugs must be both of ours was corroborated by defendants own admission that the methamphetamine belonged to him. The fact that the drugs were found only a foot away from the passenger side of the car where Vasquez was sitting with the window rolled down further corroborated Vasquezs statement. Finally, the drugs were wrapped in plastic material that appeared to be similar to plastic bags found in the car. We conclude that even if the trial court had instructed the jury concerning accomplice testimony, the result would not have been different. (People v. Arias (1996) 13 Cal.4th 92, 143 [failure to give accomplice instructions was deemed harmless when ample evidence corroborated the witnesss testimony].)

D. Failure to Instruct on Corpus Delicti

Defendant contends the trial court erred in failing to instruct the jury that the corpus delicti of the offense had to be established without defendants or Vasquezs admissions. We are perplexed by defendants argument, because the trial court did instruct the jury on corpus delicti principles as set forth in Judicial Council of California Criminal Jury Instructions, CALCRIM No. 359. Defense counsel even based his closing argument on the corpus delicti rule. There was no error.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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