P. v. Madeiros

Filed 4/5/07 P. v. Madeiros 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

A jury convicted defendant Frances Ann Madeiros of unlawfully possessing four tablets of Vicodin, a narcotic painkiller (Health & Saf. Code, 11350, subd. (a)) and twenty shotgun shells (Pen. Code, 12316, subd. (b)(1)). The jury also found true the allegations she served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). On appeal, she contends the trial court abused its discretion by allowing the prosecution to introduce evidence that she gave conflicting stories to the arresting police officers about a knife they found in the same cedar chest as the ammunition. (Evid. Code, 352.) Finding no abuse of discretion, we affirm.

FACTS

The parties stipulated that law enforcement officers conducted a lawful search of defendants home on June 29, 2005. During the search of defendants bedroom, one of the officers found four tablets of Vicodin in a plastic baggie inside a zippered pouch in a nightstand, as well as a box of twenty shotgun shells on a shelf in a large cedar chest at the foot of her bed. The officer also found a three-inch folding blade knife on another shelf in the chest. Defendant was not charged with any offense involving the knife.

When confronted with the four white tablets, defendant readily admitted they were Vicodin and that she did not have a prescription for them. She did, however, have a prescription for a stronger painkiller, Oxycontin, which she kept in the same nightstand where the Vicodin was found. She asked the police officer to throw away the Vicodin. Later, when under arrest, she said she did in fact have a prescription, and she accused the officer of planting the knife. She was not permitted to possess a knife.

Defendant became very agitated when she was placed under arrest. She asked Joshua Atkins, who was sitting on the couch in the living room, to tell the officers the knife was his. Atkins said nothing. Defendant also claimed the shotgun shells belonged to her son and that she did not know they were there.

Partial transcripts of many of defendants jailhouse conversations with her fianc were admitted into evidence. During these conversations, defendant instructed her fianc to get her son to say he left the shotgun shells at her house without telling his mother. She also told her fianc to write a letter saying that her son gave him the knife and shotgun shells and that he was coming that weekend to pick them up.

DISCUSSION

I. ADMISSION OF EVIDENCE

In a motion in limine, the prosecutor sought to introduce defendants contradictory statements to the arresting police officers about whose knife they found in the cedar chest. Defendant gave three versions: at first she asked her guest, Joshua Atkins, to say the knife was his; then she said the knife belonged to her son and she did not know it was there; and finally she accused one of the officers of planting it. The prosecutor argued that defendants statements were relevant because they indicated a consciousness of guilt. The prosecution argued, [S]he knew that it was hers and thats why she kept telling the officers different things.

Exercising its discretion pursuant to section 352 of the Evidence Code, the court found that the evidence was probative of defendants credibility because she frequently changed her explanation. The prejudice was slight, according to the court, because a folding knife is not contraband. Thus, the probative value is not substantially outweighed by prejudice to the defendant. We can find no abuse of discretion in the courts finding. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.)

Defendant insists that her stories about the knife were akin to bad character evidence that would be particularly damning. Not knowing why she could not legally possess the knife, in defendants view, the jurors might have speculated about her propensity toward violence. As a consequence, the evidence was highly inflammatory and, given that she was not charged with possession of the knife, the probative value was slight. We disagree.

The trial court enjoys broad discretion in determining the admissibility of evidence pursuant to Evidence Code section 352. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) Because the Vicodin and the ammunition were both found in defendants bedroom, the only issue at trial was whether defendant entertained the requisite criminal intent. Thus, as the prosecutor argued, her consciousness of guilt was probative of her intent. Because she gave at least three versions of where the knife came from, the jurors could certainly conclude that her evolving story evidenced a consciousness of guilt.

Nor do we accept defendants exaggerated claim of prejudice. We do not believe it was likely that the jurors would inflate possession of the folding knife into character assassination of the type suggested by defendant. The prosecutor did not argue that the jurors should infer defendant had a propensity toward violence or that she was a bad person. They were told that her possession was unlawful. Given her courtroom demeanor, her jailhouse conversations suborning perjury, and her various admissions at the time of the search, we conclude the references to the knife were not unduly prejudicial. Rather, the trial court did not abuse its discretion by concluding the probative value exceeded the likelihood of undue prejudice.

II. CORRECTION OF ABSTRACT OF JUDGMENT

Defendant correctly notes, and the People concede, that there is an error in the abstract of judgment. The trial court sentenced defendant to a total of four years in state prison, not four years one month as reflected in box 8 of the abstract.

DISPOSITION

The trial court is directed to correct box 8 of the abstract of judgment to reflect a total sentence of four years, and to forward a certified copy of said abstract to the Department of Corrections and Rehabilitation. As corrected, the judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

HULL, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.