Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC063351
Sepulveda, J.
Defendant was convicted by jury trial of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) and was sentenced to state prison for a total of four years. On appeal he contends that the trial court violated his due process rights and his right to present a defense by preventing him from introducing certain evidence. We find no error and affirm.
In a bifurcated proceeding, the trial court found a prior strike conviction (Penal Code section 1170.12, subdivision (c)(1)), and three prison priors (Pen. Code, § 667.5, subd. (b)) to be true. The four-year sentence consisted of the midterm of two years on the possession of methamphetamine charge, doubled to four years due to the prior strike. The court struck the prison priors in the interest of justice.
BACKGROUND
In March of 2007, San Bruno Police Department officer Ryan Johansen was dispatched to investigate possible narcotics activity. At the location of the suspected activity, he observed a Volvo without license plates leave the area and make a turn without signaling. He stopped the car for the Vehicle Code violations and ordered the three occupants, including defendant who was a passenger, out of the vehicle. Johansen lawfully searched defendant and discovered a blue pouch containing a baggie with 0.44 grams of methamphetamine and a glass smoking pipe in the right front pocket of the black leather jacket defendant was wearing. No identification was located in the jacket or the pouch and defendant did not appear to be under the influence of methamphetamine. Another occupant of the vehicle, Martin Jimenez, was discovered to have been sitting on methamphetamine which resembled that found in the pouch, as well as more smoking paraphernalia. Defendant and Jimenez had similar physical builds. Both Jimenez and defendant were arrested and charged with possession of methamphetamine and drug paraphernalia.
DISCUSSION
Defendant contends that the trial court erred by refusing to permit him to call a defense investigator Eric Jorgensen, who would have testified that in August of 2007 he went to the jail where defendant was housed and retrieved the property taken from defendant the night of his arrest, and that the leather jacket in which the pouch was located was not among the property retrieved. Defense counsel did not make any offer of proof beyond this, such as evidence she planned on presenting that might show it was Jimenez who had previously retrieved the jacket from defendant’s property or any other evidence that might show that the jacket belonged not to defendant, but to Jimenez. The trial court ruled that the evidence that Jorgensen was unable to retrieve the jacket from the jail in August of 2007 was inadmissible under Evidence Code section 352, in that it had no probative value and would confuse the jury. Defendant now argues on appeal that this ruling was in error and that it violated his constitutional rights. We disagree.
Without evidence indicating that the jacket belonged to Jimenez, the proffered testimony from investigator Jorgensen had no probative value. The mere fact that the jacket was no longer in possession of the jail some five months after the offense does not reasonably lead to the conclusion that the jacket did not belong to defendant or, as defendant argues, that it indeed belonged to Jimenez. Defense counsel made no additional offer of proof supporting her theory of ownership by Jimenez and merely speculated that because the methamphetamine in the pouch was similar to that found where Jimenez had been sitting and because the jacket could have fit Jimenez, Jimenez must have removed the item from jail property. A certified booking slip, however, indicated that the leather jacket was worn by defendant at the time of his arrest and was booked as his property; defendant signed the slip. Jimenez’s property slip indicated that he booked a jacket the night he was arrested, which was described as a gray Pendleton jacket. Under these circumstances, the trial court acted well within its discretion in refusing to admit the testimony of the defense investigator. No error appears.
Having determined that the trial court properly refused to admit the proffered evidence, we need not address defendant’s further contention that the alleged error violated his due process rights and right to present a defense.
DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.