P. v. Rivera
Filed 10/25/06 P. v. Rivera CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO RIVERA, Defendant and Appellant. | B185518 (Los Angeles County Super. Ct. No. VA083662) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Raul A. Sahagun, Judge. Affirmed.
Marilee Marshall & Associates, Inc. and Jennifer L. Peabody for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Defendant and appellant Eduardo Rivera was convicted by jury of possession of methamphetamine for the purpose of sale in violation of Health and Safety Code section 11378. Defendant admitted serving one prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Defendant was sentenced to the midterm of two years, plus one year for the prior prison term. This timely appeal is from the judgment.
Defendant raises the following four issues on appeal: (1) the trial court erred in denying the motion to disclose the identity of the confidential informant, who was a material witness; (2) the trial court erred in ruling that defendant could not question the investigating officer about the existence of the informant; (3) defendant was deprived of the right to present an entrapment defense because of the trial court’s refusal to disclose the identity of the informant and prohibition against questioning as to the informant’s existence; and (4) defendant could not be convicted of possession of methamphetamine for sale on an aiding and abetting theory because the person allegedly aided was a police informant who lacked the intent to possess the methamphetamine for sale.
Finding no reversal error, we affirm the judgment.
STATEMENT OF FACTS
Detective Edward Haro of the Downey Police Department was in a parking lot on June 16, 2004, planning an undercover sale of one pound of methamphetamine. Other officers were in the area monitoring the transaction. Detective Haro sat in the parking lot for 30 minutes before defendant drove up. Detective Haro had never before seen defendant.
After a brief conversation, defendant asked if Detective Haro was “Eddie.” Detective Haro said yes and asked if defendant was “Lalo.” Defendant replied that he was Lalo and asked if Detective Haro had what he wanted. Detective Haro said it was in his vehicle and opened the door. Defendant handed Detective Haro $6,500 in cash.
Defendant entered Detective Haro’s vehicle and unwrapped a white plastic bag containing 441 grams of methamphetamine.[1] Defendant asked if there was any “cut” inside, referring to a substance used to add volume to enable a larger number of sales. Detective Haro told defendant to look for himself, but defendant declined and said it looked good. Defendant took possession of the methamphetamine. While Detective Haro and defendant talked about exchanging phone numbers for future transactions, Detective Haro signaled to other officers that the sale was complete.
Three officers displaying police identification arrived at the parking lot. Defendant dropped the bag of methamphetamine and ran.
Defendant testified he was set up to make the purchase from Detective Haro by a person named Michelle Allen, who defendant believed was a police informant. Allen, the girlfriend of defendant’s uncle, asked defendant over the course of six months to purchase drugs. Allen suggested that she and defendant could go “halves” with her, but he declined. Eventually, defendant agreed to purchase the drugs for Allen because his children needed shoes and food. Defendant felt like he had no choice other than watching his kids suffer. The money for the drug purchase came from Allen, and defendant did not know where Allen got the money. Defendant’s intent was to pick up the drugs and give them to Allen. Defendant had been a drug user in the past, but not a seller.[2] Defendant purchased the drugs to make “a couple of bucks.” Defendant expected to receive money from Allen for the drugs.
Defendant exchanged the $6,500 for the methamphetamine. He ran because the police officers who approached did not identify themselves and defendant thought they were going to kill him.
DISCUSSION
I
THE MOTION TO DISCLOSE THE IDENTITY OF THE INFORMANT
Prior to trial, defendant filed a written motion to compel disclosure of the identity of a confidential informant, whose existence was revealed in police reports. The trial court conducted an in camera hearing on the motion and ruled that the identity of the informant need not be disclosed. Defendant does not challenge the pretrial ruling on appeal.[3] Instead, defendant argues that circumstances as they existed after defendant testified compelled disclosure of the identity of the informant. Defendant’s argument is premised on his theory that Allen was the confidential informant, and after defendant testified to Allen’s role in setting up the transaction with Detective Haro, defendant was entitled to disclosure of the informant’s identity.
In our view, defendant’s emphasis on the question of the identity of the informant is misplaced. The issue at trial, framed by defendant’s testimony, was what Allen said to defendant leading up to the undercover sale of narcotics. Whether Allen or someone else was the confidential informant is of no moment, as defendant knew he had dealt with Allen and it was her conduct that defendant argues led him to become involved in this incident. Significantly, defense counsel informed the trial court that his investigator went to interview Allen, but she was uncooperative and did not want to get involved. As a result, she was not subpoenaed for trial. As the trial court pointed out, the defense could have subpoenaed Allen to court and compelled her testimony.
It is against the backdrop of defendant’s failure to call Allen as a witness that we review his arguments. Proceeding from the assumption that Allen was the informant, defendant argues her identity should have been disclosed for three reasons. First, her testimony was material on the issue of entrapment. Second, defendant could not have been convicted on an aiding and abetting theory if Allen were the informant, as she would not have had the specific intent to sell the methamphetamine. Third, disclosure of the informant would have corroborated defendant’s testimony that he was merely an agent for Allen and did not have the intent to sell the methamphetamine.
Developing a Defense of Entrapment
Defendant’s argument that disclosure of the identity of the informant was required in order to develop his defense of entrapment does not withstand scrutiny. The test for entrapment is as follows: “[W]as the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect--for example, a decoy program--is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” (People v. Barraza (1979) 23 Cal.3d 675, 689-690.)
Defendant’s argument fails for two reasons. First, as pointed out above, defendant had the ability to call Allen, the sole person he dealt with prior to the offense, in an attempt to establish an entrapment defense. Having failed to do so, defendant is in no position to argue that he was precluded by the trial court from developing this defense.
Second, assuming Allen did act as a government agent, her conduct as described by defendant was inadequate as a matter of law to support the defense of entrapment. (See People v. Bowie (1977) 72 Cal.App.3d 143, 147 [entrapment instructions properly denied where there was no evidence worthy of consideration].) Fully credited, defendant’s testimony established that Allen merely offered defendant an opportunity to profit from a drug transaction, which defendant accepted for his own reasons--to obtain funds to buy shoes and food for his children. A normally law-abiding person would not have been induced by Allen’s conduct, as described by defendant, to commit the charged offense.
Impact on the Aiding and Abetting Theory of Guilt
Defendant next argues that the identity of the informant was material because the jury was instructed on guilt on the theory of aiding and abetting. Defendant reasons that if Allen were the informant and that fact had been disclosed, he could not be convicted of possession of methamphetamine for sale as an aider and abettor of Allen because she would not have had the required specific intent to sell under the reasoning of People v. Perez (2005) 35 Cal.4th 1219. Respondent concedes that if Allen were the informant, defendant could only be convicted of attempted possession of methamphetamine for sale on an aiding and abetting theory under the reasoning in Perez (and see also People v. Meyer (1985) 169 Cal.App.3d 496, 505), but that any error in instructing on aiding and abetting was harmless error.[4]
Without reaching the merits of defendant’s contention, we agree with respondent that any error in instructing the jury on an aiding and abetting theory was harmless and that reduction of the offense to attempted possession of methamphetamine for sale is therefore inappropriate. The error asserted by defendant can fairly be described as one involving an instruction on a theory that was legally correct (aiding and abetting) but based upon a record that was factually inadequate (defendant’s factual assertion that Allen was an informant and the fact she never possessed the drugs). In determining whether an error of this nature is prejudicial, our Supreme Court directs that “we must assess the entire record, ‘including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.’ [Citation.] We will affirm ‘unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.’ [Citation.]” (People v. Perez, supra, 35 Cal.4th at p. 1233.)
There is no reasonable probability that the jury convicted defendant solely by relying on the aiding and abetting theory. The prosecution presented its case-in-chief on the theory that defendant purchased the methamphetamine, intending to sell it himself. The evidence strongly supports this theory. Defendant paid $6,500 in cash to someone he did not know in return for a large quantity of methamphetamine. Defendant asked if the methamphetamine had been cut, a subject in which one would expect defendant to have had little or no concern unless explained by his own interest in the purity of the product for the purpose of selling it. Defendant and Detective Haro spoke of exchanging telephone numbers, suggesting defendant had an interest in making additional purchases. Defendant had a prior felony conviction, admitted to being a former drug user, and fled from the police, factors which undercut the credibility of his testimony and pointed to his personal responsibility.
Even under defendant’s version of the events, the evidence was sufficient to convict defendant on the theory he personally possessed the methamphetamine for the purpose of sale. In preliminary talks, defendant testified Allen suggested they go “halves” in the deal, a proposal that exceeds mere aiding and abetting. Defendant’s explanation of the events leading to his purchase of drugs was both incomplete and highly improbable. Defendant offered no explanation for how Allen came into possession of the $6,500 for the drug purchase, did not testify to how much he was to be paid for his services, and did not explain why Allen would put up $6,500 of her money if she were in fact an informant. Defendant’s weak excuse for his flight when the police arrived further diminished his credibility and supported an inference of guilt. The prosecutor summed up her argument by telling the jury, “This is a person who clearly knew what he was doing and that was buying the methamphetamine at a low price in order to sell at a higher price on the street.” Based on this record, we comfortably conclude the jury convicted defendant on the theory he possessed the methamphetamine for the purpose of sale, and not on the theory he was merely aiding and abetting Allen.
Bolstering Defendant’s Credibility
Finally, defendant argues the identity of the informant should have been disclosed in order to bolster his claim that he was acting as the agent of another. In this context, the identity of the informant has nothing to do with the issue of defendant’s credibility, as the only person defendant claimed was involved in setting up the transaction was Allen. As previously stated, defendant could have called Allen as a witness to support his claim, but a tactical decision was made not to do so after she proved uncooperative in giving an interview. Having passed on the opportunity to compel Allen to testify and use her testimony to bolster his credibility, the argument falls of its own weight.
II
REFUSAL TO ALLOW QUESTIONING
ABOUT THE EXISTENCE OF AN INFORMANT
Prior to trial, the prosecution moved to preclude questioning as to the existence of an informant. After hearing from counsel for defendant and the prosecution, the trial court ruled that neither party would be allowed to ask any questions pertaining to the informant. Defendant assigns this ruling as error, contending that absent testimony about the informant, he was unable to establish an entrapment defense, the jury was permitted to convict based upon an aiding and abetting theory, and defendant was convicted of a crime which he could not legally commit.
Contrary to defendant’s argument, the trial court did not abuse its discretion by ruling that the existence of an informant was not a relevant issue at trial. “The trial court has broad discretion in determining the relevance of evidence. (See People v. Crittenden (1994) 9 Cal.4th 83, 132.) We review for abuse of discretion a trial court’s rulings on the admissibility of evidence. (People v. Heard [(2003)] 31 Cal.4th [946,] 972; People v. Rowland (1992) 4 Cal.4th 238, 264.)” (People v. Harris (2005) 37 Cal.4th 310, 337.)
At a pretrial hearing, defendant was given an opportunity to argue why questioning should be allowed as to the existence of an informant in this case. All counsel suggested was that the defense believed it knew the identity of the informant, who had a pending case, and cooperated in the hopes of receiving leniency. When asked for the relevance of this information, counsel said the evidence “may” be relevant if there is a claim of necessity or duress or lack of specific intent. Defense counsel suggested if his client was just a “mule” for the confidential informant, then he lacked the specific intent to sell the methamphetamine.
The trial court reasonably concluded before trial that the existence of an informant did not tend to prove or disprove an issue in dispute. (Evid. Code, § 210.) The issues defense counsel indicated he might raise were not ripe for consideration during the prosecution case-in-chief. Indeed, other than the existence of an informant, any information about dealings between defendant and an informant would most likely involve inadmissible hearsay.
As circumstances developed after defendant’s testimony, the identity of the informant became a matter of no significance, once defendant identified Allen as the person he claimed was responsible for setting up the sale of drugs. As described above, defendant had the ability to call Allen as a witness, but did not do so. There was no error on the part of the trial court in refusing to allow questioning about an informant.
Nor does defendant’s constitutional claim have merit. “The essence of his claim is that the trial court denied him his federally guaranteed right to present witnesses in his own defense. (See Taylor v. Illinois (1988) 484 U.S. 400, 408; Chambers v. Mississippi (1973) 410 U.S. 284, 302.)” (People v. Jones (1998) 17 Cal.4th 279, 305.) Defendant was not precluded from calling Allen--the only witness he believed to have been involved--and it follows that there was no constitutional violation.
Defendant’s arguments that the prohibition against questioning Detective Haro about the informant deprived him of the opportunity to establish an entrapment defense, and permitted conviction of a crime which he could not legally commit based upon an aiding and abetting theory, were answered in part I of the Discussion section of this opinion. There is no need to repeat the analysis.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
ARMSTRONG, Acting P. J.
MOSK, J.
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[1] This amount of methamphetamine would produce approximately 22,000 individual dosages, each with a street value between $5 and $10. Detective Haro was of the opinion defendant purchased the methamphetamine for the purpose of sale.
[2] Defendant had a prior conviction for possession of a loaded firearm.
[3] We have fulfilled our obligation to review the entire trial record, including the contents of the sealed transcript of the in camera hearing in connection with the motion to disclose the identity of the informant, as well as the sealed exhibits introduced at that hearing.
[4] We note a further problem with the theory defendant aided and abetted Allen in committing possession of a controlled substance for sale: Allen never came into possession of the drugs, so regardless of whether or not she was an informant, defendant could not have aided her in the commission of an offense she did not perpetrate.