Opinion
F041857.
10-10-2003
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO CANTERA, Defendant and Appellant.
Andrew Cappelli, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Dibiaso, Acting P.J., Vartabedian, J. and Cornell, J.
INTRODUCTION
Appellant Alfredo Cantera challenges his conviction for robbery and assault with intent to produce great bodily injury on the basis that evidence of his illegal drug use was insufficient to establish a motive for the robbery or, alternatively, it was inadmissible under Evidence Code[] section 352. We disagree and affirm.
References to code sections are to the Evidence Code unless otherwise specified.
STATEMENT OF THE CASE AND FACTS
Cantera met Russell Benson on the night of October 8, 2001, when he purchased $50 worth of methamphetamine from Benson. The next day Cantera and his friend, Juan Robles, saw Benson at a car wash. Cantera approached Benson and asked to purchase more methamphetamine. Benson asked how much he wanted and Cantera responded that he had a $100 bill. Cantera paid Benson and took the methamphetamine back to his vehicle.
After returning to his vehicle, Cantera determined that the amount of methamphetamine he had received in exchange for his $100 was too little. Cantera and Robles confronted Benson. They put Benson in a headlock and wrestled him to the ground. Cantera and Robles kicked Benson several times, hit him on the head with a gun, and took $100 from Bensons wallet and drove away. As Canteras car pulled away, Benson copied down Canteras license plate number.
Benson then drove to his nearby business and called 911. Benson described his attackers and their vehicle to the officers that responded. Shortly thereafter, the vehicle was spotted and stopped, and Cantera and Robles were detained. A search of the vehicle disclosed a loaded, nine-millimeter semiautomatic weapon, a box of ammunition and a baggie containing .11 grams of methamphetamine.
Benson positively identified Cantera and his friend as his attackers. Benson sustained bruises on his face, neck, arms and legs. He had a cut on his forehead where he was hit with the gun; the cut took two weeks to heal. He also suffered pain and sleeplessness.
At trial Benson denied selling methamphetamine. Cantera denied hitting Benson with a gun and denied taking money from Benson. Cantera did acknowledge that he, Benson and Robles had been involved in an altercation at the car wash.
Cantera worked in construction and earned about $1,600 per month. He regularly sent one-half of his earnings to family in Mexico. Cantera admitted that he purchased and used a lot of methamphetamine during the months prior to the altercation with Benson. In fact, Cantera had missed a lot of work because of his drug use. According to Cantera, he purchased "sixteenths" for $50 and "eights" for $100. He had used all the methamphetamine he purchased the evening of October 8, which is why he wanted to purchase more on October 9.
On February 4, 2002, a jury found Cantera and Robles guilty of robbery and assault likely to produce great bodily injury. It was also found true that Cantera personally used a firearm in the commission of the offense.
DISCUSSION
Relevance of Drug Use Evidence
Cantera asserts that the evidence of his drug purchases and drug use in the days preceding the incident with Benson should not have been used by the prosecution to establish a motive for the robbery.
Canteras argument is premised on the fact that before a prosecutor is permitted to proceed on the theory that a defendants need for money to purchase drugs was the motive for a robbery, the prosecution first "must have established a reasonable basis for inferring the cost of appellants habit or use." (People v. Reid (1982) 133 Cal.App.3d 354, 363.) Cantera asserts that the evidence of his drug use and purchases in the days immediately prior to the incident was too short a time period to establish whether he could sustain his drug habit from his earnings.
The evidence, however, establishes more than Canteras drug use over a two-day period. Cantera admitted that (1) he had purchased and used a lot of methamphetamine in the months prior to the altercation with Benson; (2) his drug use had caused him to miss a great deal of work during that time period; (3) he was about to lose his job; and (4) one-half of his monthly income was regularly sent to relatives in Mexico. Cantera also admitted expending $50 to $100 for each purchase during the prior months. By Canteras own admission, he was attempting to support himself and sustain a drug habit on $800 per month, at most, and facing a loss of that income.
The jury could reasonably infer from these facts that Canteras admitted drug use cost him about $50 per day and that Canteras income was insufficient to sustain his habit. (See People v. Reid, supra, 133 Cal.App.3d at p. 362.) This inference, combined with Canteras own admission that he started an altercation with Benson over a disputed drug deal, provides sufficient evidence to establish a motive for robbery and assault and was neither irrelevant nor inadmissible. (Ibid.)
Section 352
Cantera next posits that evidence of his drug use and expert testimony that drug users have been known to commit crimes to support their drug addiction should have been excluded as unduly prejudicial pursuant to section 352. A trial courts exercise of discretion under section 352 is not disturbed on appeal unless the probative value of the evidence is outweighed by its prejudicial effect. (People v. Hughes (2002) 27 Cal.4th 287, 336.)
Here, during its case-in-chief, the prosecution offered expert testimony that the amount of methamphetamine found in Canteras car was a usable amount and that drug users have been known to commit crimes to support their drug addiction. As noted, supra, the methamphetamine found in Canteras car and his drug habits were relevant to establish a motive for the crimes. Cantera testified on direct examination regarding his drug use and opined that the altercation with Benson was nothing more than a scuffle between a buyer and seller of drugs; no robbery or assault occurred.
We do not agree with Canteras contention that the jurors based their decision on his character rather than the evidence because, contrary to Canteras assertion, the challenged evidence was not likely to inflame and unduly prejudice the jury against him. Cantera portrayed Benson as a seller of illegal drugs and therefore an unsympathetic victim. It is highly unlikely that the jurors passions were inflamed against Cantera, a drug user, in evaluating the evidence pertaining to his altercation with a seller of illegal drugs.
Had the challenged evidence been excluded, it is not reasonably probable that the jury would have returned a verdict more favorable to Cantera. (People v. Watson (1956) 46 Cal.2d 818, 836.) Benson described and later identified Cantera and Robles as his attackers; Benson noted the license plate number and description of the car driven by his attackers; Benson had sustained visible injuries in an altercation; and the gun used to hit Benson was found in Canteras car.
There also is no merit to Canteras contention that his counsel rendered ineffective assistance for failure to object to the expert testimony. The record reflects that the testimony was elicited over the objection of defense counsel.
DISPOSITION
The judgment is affirmed.