P. v. Keidser

Filed 3/20/07 P. v. Keidser 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, James B. Pierce, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Defendant, Catherine Irene Keidser, appeals from her conviction for methamphetamine possession. (Health & Saf. Code, 11377, subd. (a).) Defendant argues the trial court interfered with defense counsels questioning and committed misconduct. We affirm.

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On October 4, 2005, defendant was stopped for traffic violations. Defendant was arrested for driving without a license. A baggie containing .10 grams of methamphetamine and two glass pipes were found in defendants purse at the time of her arrest. Present in the car when she was slapped was Antonio Ibarra. Mr. Ibarra was later released at the scene of the defendants arrest.

First, defendant argues that the trial court interfered with her right to cross-examine the arresting officers. Defendant argues the trial court incorrectly sustained the prosecutors objections to defense counsels questions and literally took over cross-examination. Defense counsel cross-examined Deputies Robert Jackson and Jeffrey Farmar. Deputy Jackson was asked whether, in his experience and training in the field of narcotics enforcement, it would be unusual that someone in possession of drugs would try to dispose of them during the arrest. Deputy Jackson acknowledged that Mr. Ibarra was allowed to remove defendants belongings before her car was towed. Thereafter, the following colloquy took place: Q [] . . . [] Now, in this case you considered the well, first of all, Mr. Ibarra was released from the scene, correct? [] A Yes. [] Q And that was based upon your investigation in talking to him? [] A Among other factors, yes. [] Q You ran him for wants and warrants to make sure that there wasnt any reason to detain him, right? [] A Yes. [] Q Did you look for any additional information on Mr. Ibarra? [] A Additional information how? [] Q From your computer or from your dispatcher, did you request any additional information about him? [] [PROSECUTOR]: Objection; relevance. [] THE COURT: sustained. [] [DEFENSE COUNSEL]: You believed what Mr. Ibarra told you; didnt you, sir? [] [PROSECUTOR]: Objection; relevance. [] THE COURT: Sustained. On re-cross-examination, Deputy Jackson was asked whether the failure to preserve the baggie for fingerprints was based upon the investigation and the statements made by defendant and Mr. Ibarra. After Deputy Jackson responded affirmatively, defense counsel inquired, And would it have changed your opinion if you would have known Mr. Ibarra had an extensive felony record? The prosecutors objection that the question called for speculation was sustained.

Also, defense counsel cross-examined Deputy Farmar. Deputy Farmar was asked whether a computer check was run on Mr. Ibarra. Deputy Farmar answered: Yes. We did. Deputy Farmar was then asked, Did you check into his past criminal record? The prosecutors relevance objection was sustained. Defense counsel then asked, You released Mr. Ibarra based on the statements he made to you, correct, partly When the prosecutor made another relevance objection, the trial court instructed defense counsel: Im going to warn you now at this time. You may call Mr. Ibarra into the witness stand. You have every right to subpoena him as anybody else does. [] . . . [] You know exactly what youre doing, and I want you to stay away from it, and Im warning you. And theres going to be sanctions if you dont.

A defendant is entitled to present relevant evidence in support of her or his defense. (California v. Trombetta (1984) 467 U.S. 479, 485; Chambers v.Mississippi (1973) 410 U.S. 284, 302.) However, that right is not unlimited. (United States v. Scheffer (1998) 523 U.S. 303, 308; Chambers v.Mississippi, supra, 410 U.S. at pp. 302-303.) A defendant also has the right to confront and cross-examine witnesses called by the prosecution. (U.S. Const., 6th & 14th Amends.; Pointer v. Texas (1965) 380 U.S. 400, 403-405; People v. Carter (2005) 36 Cal.4th 1114, 1172.) However, the federal Constitution guarantees effective cross-examination; not necessarily the cross-examination that is as effective as an accused may prefer. (United States v. Owens (1988) 484 U.S. 554, 559; Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680; People v. Carter, supra, 36 Cal.4th at p. 1172.) The California Supreme Court has likewise held: As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] . . . (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835; see also Chambers v. Mississippi, supra, 410 U.S. at p. 295 [the right to confrontation is not absolute and may in appropriate cases bow to other legitimate interests]; People v. Chatman (2006)38 Cal.4th 344, 372; People v. Frye (1998) 18 Cal.4th 894, 946 [not every restriction on a defendants desired method of cross-examination is a constitutional violation . . . the trial court retains wide latitude in restricting cross-examination]; People v. Jones (1998) 17 Cal.4th 279, 305.) The California Supreme Court further held: [U]nless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] (People v. Frye, supra, 18 Cal.4th at p. 946; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1386.) We review defendants contention for an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 374-375; People v. Roybal (1998) 19 Cal.4th 481, 511.)

Here, the trial court could properly limit the cross-examination regarding Mr. Ibarras criminal record. As the trial court pointed out, defendant could call Mr. Ibarra as a defense witness. Moreover, defense counsel did have the opportunity to suggest by way of questions posed to the deputies that Mr. Ibarra may have placed the methamphetamine in defendants purse at the time of the traffic stop. In fact, defense counsel inquired of Deputy Farmar, Mr. Ibarra had access to the back seat of that vehicle; didnt he? Deputy Farmar replied, In my presence he did not have access to that back seat. Whether Mr. Ibarra had a criminal record was not established by an offer of proof or admissible evidence and the trial court could reasonably conclude the subject was irrelevant.

Relying upon the recent United States Supreme Court case Holmes v. South Carolina (2006) 547 U.S. 319, ____ [126 S.Ct. 1727, 1729], defendant argues that she was prevented from presenting evidence of third-party culpability. Holmes overturned a South Carolina statute which excluded third party culpability evidence if the prosecutor introduced forensic evidence that, if believed, strongly supported a guilty verdict. As to California law, our Supreme Court has repeatedly held, [To] be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. (Peoplev.Bradford (1997) 15 Cal.4th 1229, 1325; Peoplev.Sandoval (1992) 4 Cal.4th 155, 176; People v.Hall, supra, 41 Cal.3d at p. 833.) In Holmes, Associate Justice Samuel Alito explained: While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. [Citations.] (Holmes v. South Carolina, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 1732]; accord, Clark v. Arizona (2006) 548 U.S. ___, ___ [126 S.Ct. 2709, 2731-2732].) Associate Justice Alito explained that evidence of third party culpability may be excluded under certain circumstances: [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendants trial []. Such rules are widely accepted . . . . (Holmes v. South Carolina, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 1733], fn. omitted.) The omitted footnote in the immediately preceeding quotation referred in part to People v. Hall, supra, 41 Cal.3d at page 833. (Holmes v. South Carolina, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 1733], fn. 1.) Unlike the unusual South Carolina statute in Holmes, California courts focus on the probative value of the evidence sought to be introduced. Without abusing its discretion or violating the federal and California Constitutions, the trial court could reasonably find defendant did not establish a link between Mr. Ibarras criminal history and her culpability; the evidence was speculative and its probative value was outweighed by its potential prejudice.

Moreover, the trial courts rulings did not prevent defendant from presenting a defense. In addition to the evidence set forth above, defense counsel established that the deputies did not retain the baggie containing the methamphetamine to obtain fingerprints. Presumably, this would have established that Mr. Ibarra may have handled the contraband. In closing argument, defense counsel argued: They could have done some forensic testing so you wouldnt have to be taking anybodys word for it. You would know whose prints were on that baggie. They didnt do that, ladies and gentlemen. [] The purse or bag, whatever, whatever it is, the officers very vague on it. Did they book it into evidence? They come in and say here it is. Here it is. Here are these packets were talking about, so you could make your own independent judgment. How easy would it be for somebody to toss something in there. [Suggesting Mr. Ibarra.] You could make your own judgment. They didnt bring it in. They didnt book it. They didnt even take a picture of it. Defendant was not prevented from presenting her defense.

We reject defendants contention the trial courts foregoing rulings constitute judicial misconduct. In the case of In re Guardianship of L.V. (2006) 136 Cal.App.4th 481, 500, our colleagues in the Court of Appeal for the Third Appellate District held: An opinion formed by a judge as the result of a judicial hearing, even though it is adverse to a party, does not amount to bias. [Citations.] (See People v. Yeager (1961) 55 Cal.2d 374, overruled on another ground in People v. Chi Ko Wong (1976) 18 Cal.3d 698, 716, fn. 14; Kreling v. Superior Court (1944) 25 Cal.2d 305, 311-312.) The trial courts rulings did not amount to bias.

Second, defendant argues the trial court unfairly criticized defense counsel. Defendant cites to the aforementioned caution issued by the trial court to defense counsel during the cross-examination of Deputy Farmar as previously noted: Im going to warn you now at this time. You may call Mr. Ibarra into the witness stand. You have every right to subpoena him as anybody else does. [] . . . [] You know exactly what youre doing, and I want you to stay away from it, and Im warning you. And theres going to be sanctions if you dont. This admonishment followed numerous attempts by defense counsel to introduce Mr. Ibarras criminal background through the cross-examination of both deputies. The trial court sustained the prosecutors objections to the line of questioning on several occasions. Defense counsel never objected to the trial courts comments in the jurors presence.

After the jurors left the courtroom for lunch, the trial court questioned defense counsel at length about his line of questioning. In the course of that discussion, the trial court stated: Prior to this trial you had some very careful 402 motions in regards to what criminal conduct can come in, what cant, in case your client takes the stand. I make my rulings and so forth. And then during the course of this trial you ask the question of a witness, did you examine Mr. Ibarras record to find out he had extensive felony convictions. [] Now, if that same question was asked by the prosecutor against your client, would you consider that a fair tactic? Defense counsel explained that there was a distinction: My questions were based on these officers testifying because of what they found out from their investigation, including talking to Mr. Ibarra. Based on what they found out, they didnt get fingerprints, they didnt further investigate. Defense counsel further argued that he believed he set the foundation for such an inquiry.

In response, the trial court stated outside the jurors presence: I dont know what unaccredited law school you went to, but that is not the law. And you [.] Defense counsel responded, I take your honor, I take exception to [.] The court asked: What law school did you go to? What law school did you go to? Defense counsel answered, Ohio State University. Thereafter, the trial court stated: A very reputable law school as far as Im concerned. So you should know better. Theres no excuse for it. If you think that you can bring in the comment very extensive record of Mr. Ibarra in front of this jury without him ever being a witness, based on the police failure to investigate and do fingerprints, thats just ludicrous. [] Id like to know what Ohio State how the law differs in Ohio than it does in California that you can bring that in. Defense counsel continued to argue that the evidence was admissible in support of defendants third party culpability defense. The trial court then advised defense counsel that in the absence of Mr. Ibarras testimony: [H]is culpability is not an issue in this case. You dont have the defense of third party culpability. You never had it. You never did, and you never laid the foundation for it. And, furthermore, you know that. The trial court cautioned defense counsel: And if you do this again, and if you do raise it in closing argument, I will fine you. And its going to be a high fine because you pursued it after I told you to stay away from that area. Thereafter, the trial court asked whether defense counsel believed it would be proper to ask the deputies whether Mr. Ibarra could have put the drugs in the bag. When defense counsel stated the question was proper, the trial court stated: Im telling you here, as God is my witness, that is an improper question asked by either side. And if the other side objected to it, it would always be sustained as phrased.

The California Supreme Court has held: A trial court commits misconduct if it persists in making discourteous and disparaging remarks to a defendants counsel . . . and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge. [Citations.] (People v. Sturm (2006) 37 Cal.4th 1218, 1238; People v. Boyette (2002) 29 Cal.4th 381, 460; People v. Fudge (1994) 7 Cal.4th 1075, 1107; People v. Mahoney (1927) 201 Cal. 618, 627; see also People v. Carpenter (1997) 15 Cal.4th 312, 353; People v. Clark (1992) 3 Cal.4th 41, 143.) In this case, the only comments made in the jurors presence related to defense counsels repeated attempts to introduce evidence of Mr. Ibarras criminal history. As noted, the trial court could properly sustain the prosecutors objections. Also, the trial court cautioned defense counsel that Mr. Ibarra could be called as a witness. Defense counsel was directed to refrain from further improper questioning. The failure to object to the trial courts statements forfeits the misconduct issue. (People v. Fudge, supra, 7 Cal.4th at p. 1108; People v. Anderson (1990) 52 Cal.3d 453, 468.) The fact that the trial court mentioned the possibility of sanctions emphasized the seriousness of the warning. Our colleagues in the Court of Appeal for the Third Appellate District have held: [T]he court may act swiftly and strongly in the presence of the jury to admonish an attorney if necessary to preserve the integrity of the judicial process. (People v. Chong (1999) 76 Cal.App.4th 232, 244; accord, People v. Dickenson (1962) 210 Cal.App.2d 127, 140.)

In terms of the discussion occurring in the jurys presence, the jurors were instructed pursuant to Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3550: It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be. The jury is presumed to have obeyed the trial courts instruction in this regard. (People v. Monterroso (2004) 34 Cal.4th 743, 762; People v. Hardy (1992) 2 Cal.4th 86, 208; People v. Chong, supra, 76 Cal.App.4th at p. 244-245.)

As to the question of the quality of defense counsels legal education, unlike the statements in front of the jury, defense counsel took issue with the unaccredited law school comment. No doubt, it was better to have not said it that way. Defense counsels unprincipled unwillingness or negligent inability to obey court orders was not a justification to question the quality of his legal education; particularly when it turned out he attended the Ohio State University. The trial court immediately recognized it had mischaracterized the quality of defense counsels legal education and rightfully so. Taking the single phrase unaccredited law school out of context which was immediately followed by the trial courts recognition that defense counsel had in fact been educated at an eminent law school is not a showing of a comment that is beyond the pale of judicial fairness which is the necessary showing in order to demonstrate reversible judicial misconduct. (People v. Boyette, supra, 29 Cal.4th at p. 461; see People v. Fudge, supra, 7 Cal.4th at p. 1107.)

Third, defendant argues that the cumulative effect of errors committed by the trial court requires the reversal of his convictions. We disagree. There has been no showing of cumulative prejudicial error. (People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were minor and either individually or cumulatively would not alter the outcome of the trial]; People v. Catlin (2001) 26 Cal.4th 81, 180 [same].) Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the process or accrue to defendant's detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) As the California Supreme Court has held, [A] [d]efendant [is] entitled to a fair trial but not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey (1992) 2 Cal.4th 408, 454; People v. Miranda (1987) 44 Cal.3d 57, 123.) In this case, defendant received more than a fair trial.

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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