P. v. Rodriguez

Filed 4/12/07 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Eric G. Helgesen, Judge. (Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Pat Zaharopoulos and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Juan Manuel Rodriguez was sentenced on the same day, in two unrelated, unconsolidated cases, to a total of 10 years 8 months in prison. This appeal relates exclusively to a single count of simple possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)). Accordingly, we will not discuss the other charges.

The evidence showed that, just as the police were making a routine traffic stop of the car that defendant was driving, defendant threw some methamphetamine out the window. Defendants passenger, however, told the police that the methamphetamine was his and that he threw it out the window.

Defendant contends:

1. The trial court erred by excluding evidence that defendants passenger eventually pleaded guilty to possession for sale of the identical methamphetamine.

2. The trial court erred by refusing to instruct on the defense of transitory possession for disposal.

We agree that the trial court should have admitted the evidence that defendants passenger had pleaded guilty to possession of the methamphetamine. We conclude, however, that the error was harmless, because (1) the trial court did admit evidence of the passengers statements to the police, and (2) the evidence that defendant actually was the person who threw the methamphetamine out of the window was quite strong.

We further conclude that the trial court properly refused to instruct on the defense of transitory possession. The defense did not apply, because all of the evidence indicated that defendants purpose in throwing the methamphetamine out the window was to prevent the pursuing officers from finding it.

I

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2004, around 11:00 p.m., a police officer on patrol spotted a car being driven with no license plates.^[1] The officer pulled up behind it and turned on his pull-over lights. He also aimed his spotlight at the drivers side mirror. As a result, he could see the driver clearly.

The car immediately turned left, into a driveway, and stopped. As it was turning, the officer saw the driver throw a plastic bag, with something white in it . . . . The drivers elbow was on the window sill; the officer could see his arm up to the biceps. At this point, the officers car was eight to 10 feet behind the other car.

The officer contacted the driver, who turned out to be defendant. There was a passenger in the car with him. (Defendants rear window was tinted, and until this point, the officer had not been aware that defendant even had a passenger.) Both defendant and the passenger were arrested.

The officer then retrieved the plastic bag.^[2] In it was about 10 grams of a substance that, when tested, was found to contain methamphetamine.

When the officer interviewed defendants passenger, the passenger said that the items belonged to him and that he threw them out the window. The officer admitted, however, that even though at some point he turned on his belt recorder, the passengers statements were not recorded. At one point, the officer opined that the passenger was lying to protect the driver; the trial court, however, instructed the jury not to consider this evidence for its truth.^[3]

It was stipulated that defendants blood tested positive for methamphetamine, at a level indicat[ing] that he was under the influence.

As a result, a jury found defendant guilty of transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a)), possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)(1)), and being under the influence of methamphetamine (Pen. Code,  11550, subd. (a)).

II

THE ADMISSIBILITY OF THE PASSENGERS GUILTY PLEA

Defendant contends that the trial court erred by excluding evidence that his passenger had pleaded guilty to possession for sale of the identical methamphetamine.

A. Additional Factual and Procedural Background.

The original information had been filed jointly against both defendant and his passenger, Sergio Bautista Anguiano. Before trial, however, Bautista had pleaded guilty to charges that included transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a)), possession of methamphetamine for sale (Health & Saf. Code,  11378), and being under the influence of methamphetamine (Health & Saf. Code,  11550, subd. (a)). In return, he was to be placed on probation for not more than a year.

Before trial, Bautista invoked the Fifth Amendment and refused to testify on defendants behalf.

In his opening statement, defense counsel stated that Sergio Bautista pled guilty to possession for sale . . . . The prosecutor objected, and the trial court sustained the objection. Outside the presence of the jury, defense counsel argued that Bautistas guilty plea was admissible as a declaration against interest and requested judicial notice of it. The prosecutor objected that it was irrelevant. The trial court agreed that the plea was a declaration against interest but excluded it as irrelevant, explaining: This is not a situation where only one person can be in possession of the drugs.

B. Analysis.

Bautistas guilty plea was relevant. It is true that, under a theory of joint possession, the fact that the passenger was in possession did not necessarily mean that defendant was not in possession, and vice versa. (People v. Hunt (1971) 4 Cal.3d 231, 236; People v. Rushing (1989) 209 Cal.App.3d 618, 622; People v. Patino (1984) 160 Cal.App.3d 986, 996.) Nevertheless, it had some tendency in reason to show that defendant was not in possession. (Evid. Code,  210.)^[4]

The People argue that, in light of the officers testimony that he saw the driver throw the drugs, the passengers guilty plea proved, at most, joint possession. The jury, however, did not have to believe the officer ‑‑ especially not beyond a reasonable doubt; anybody can make a mistake.

The People also note that a trial court has broad discretion to exclude evidence under Evidence Code section 352. The point of this is unclear; the People never actually argue that the trial court either could or should have excluded the evidence as more prejudicial than probative. It would not have inflamed or confused the jury. It also would not have consumed undue time, particularly as defense counsel was asking the trial court to take judicial notice of it. Moreover, it was not merely cumulative. Although the passengers statements to the police that the drugs belonged to him did come in, the fact that he pleaded guilty was more credible; in his statements to the police, he could have been lying to protect defendant, but in pleading guilty, he was presumably being truthful.

This brings us to whether the error was harmless. Preliminarily, we must decide whether the state or federal constitutional standard applies. Defendant argues that the exclusion violated his due-process right to present a defense. His trial counsel duly raised this contention below. However, defendants attempt to inflate garden-variety evidentiary questions into constitutional ones is unpersuasive.  . . . [T]he trial courts ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense. [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson [(1956)] 46 Cal.2d 818, 836 . . . , and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24. [Citation.] (People v. Boyette (2002) 29 Cal.4th 381, 427-428, quoting People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103, quoting People v. Mincey (1992) 2 Cal.4th 408, 440 and In re Wells (1950) 35 Cal.2d 889, 894.)

Defendant also argues that the exclusion violated his right to confront and cross‑examine the witnesses against him. His trial counsel forfeited this contention by failing to raise it below. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 996.) In any event, we fail to see how defendants confrontation rights are implicated. Defendant rather weakly suggests that he should have been allowed to cross-examine the officer . . . as to why the passenger would have pled [guilty]. The officer, of course, would have no personal knowledge of this.

In any event, not every restriction on a defendants desired method of cross‑examination is a constitutional violation. (People v. Chatman (2006) 38 Cal.4th 344, 372, quoting People v. Frye (1998) 18 Cal.4th 894, 946.) A trial courts limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. [Citations.] (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Accordingly, once we conclude, post, that there is no reasonable probability that the admission of this evidence would have changed the result, we must likewise conclude that there was no confrontation clause violation.

While the passengers guilty plea was excluded, his admissions that the drugs belonged to him did come in. There was some question as to why the officers belt recorder did not pick them up, but there would seem to be no reason for the officer to lie â€‘‑ i.e., to make up a statement contradicting his own testimony that it was the driver who threw the drugs. Thus, in closing argument, defense counsel was able to point out: We have [the passenger] saying, Its my dope.

On the other hand, the officers testimony that he saw defendant throw the drugs was essentially uncontradicted. His attention was focused on the driver. His car was just eight to 10 feet behind defendants; he was diagonally off to the left of the drivers side, and he was shining a spotlight on it. He did not even realize that the passenger was there until later.

Under these circumstances, we perceive no reasonable probability that the admission of evidence of Bautistas guilty plea would have led to a more favorable result for defendant.

III

REFUSAL TO INSTRUCT ON THE DEFENSE OF TRANSITORY POSSESSION

Defendant contends that the trial court erred by refusing to instruct on the defense of transitory possession for the purpose of disposal. (E.g., CALJIC No. 12.06.)

A. Additional Factual and Procedural Background.

Defense counsel requested CALJIC No. 12.06 (Possession - Not Unlawful - Burden of Proof). That instruction would have stated:

A person is not guilty of a crime when his or her possession of [a controlled substance] . . . is shown to be lawful. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that his or her possession of the [controlled substance] . . . is lawful.

The possession of a . . . [controlled substance] . . . is lawful where all of the following conditions are met:

1. The possession is momentary and is not based on either ownership or the right to exercise control over the [controlled substance];

2. The [controlled substance is] possessed solely for the purpose of abandonment, disposal, or destruction;

3. The [controlled substance] is possessed for the purpose of terminating the unlawful possession of it by another person or preventing another person from acquiring possession of it; and

4. Control is not exercised over the [controlled substance] for the purpose of preventing its imminent seizure by law enforcement. (Italics added.)

The trial court refused to give the instruction. It explained:  . . . First, I think in the light most favorable to the defendant, that if, in fact, he did get [the drugs] from the possession of the passenger in the car and then disposed of them, . . . that was not for legitimate disposal reasons, that was to avoid their discovery by the police. . . .

Secondly, I do believe that that is inconsistent with your defense, because your defense is that your client never ever had them, that they were thrown out by the other passenger . . . .

B. Analysis.

A trial court has no duty to instruct the jury on a defense ‑‑ even at the defendants request ‑‑ unless the defense is supported by substantial evidence. [Citation.] (People v. Hill (2005) 131 Cal.App.4th 1089, 1101, quoting People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 [Fourth Dist., Div. Two].)

In People v. Mijares (1971) 6 Cal.3d 415, th[e Supreme C]ourt held that, under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it can constitute a defense to a charge of criminal possession of the controlled substance. [Citation.] (People v. Martin (2001) 25 Cal.4th 1180, 1182.) The court has characterized this as the affirmative defense of transitory possession for disposal . . . . (Ibid.) In any event, defendant does not contend that transitory possession relates to an element of the crime rather than a defense.

It has always been the rule under Mijares, and embodied in CALJIC No. 12.06, that such a defense does not extend to possession and control for the purpose of preventing imminent seizure by law enforcement. [Citations.] (People v. Padilla (2002) 98 Cal.App.4th 127, 136-137.)

There was insufficient evidence that defendants purpose in exercising control over the drugs was not to prevent imminent seizure by law enforcement. There was a police car right behind him, with its pull-over lights on, and defendant was in the process of pulling over. Defendant does not point to any contrary evidence. He merely asserts that his purpose would have been a fair subject for argument by both sides. Without any evidence of a different purpose, however, it would not.

Because there was insufficient evidence to support this defense, we likewise reject defendants contention that the failure to instruct on it violated the federal constitutional rights to due process, compulsory process, and trial by jury.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

HOLLENHORST

J.

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^[1] The officer was accompanied by his partner. The partner, however, did not testify at trial.

^[2] From the reporters transcript alone, it is not clear whether the plastic bag landed on the drivers side or on the passenger side. There was an exhibit that would have made this clear, but the parties have not had it transmitted to us. (See Cal. Rules of Court, rule 8.224.)

^[3] Q. Okay. Now, when the passenger of the vehicle told Officer Hoyas that he was the one who actually threw the . . . methamphetamine out the window, what was your response?

A. I didnt have any response then. I figured he was just trying to cover for the driver.

[DEFENSE COUNSEL]: You Honor, I move to strike that last portion as speculation.

THE COURT: Well, I am going to allow it as explaining why he didnt do anything. . . .

[DEFENSE COUNSEL]: Then would the court please rule that thats not received for the truth.

THE COURT: Its not received for the truth of the matter asserted[,] that thats what he was doing necessarily, right. (Italics added.)

^[4] Defendant argues only that the error requires the reversal of his conviction of possession of methamphetamine. It is arguable, however, that this evidence was also relevant to the charge of transportation of methamphetamine.