Opinion
B165442.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. HORACIO CHIRINOS, Defendant and Appellant.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Horacio Chirinos appeals the judgment entered after conviction by jury of possession for sale of a controlled substance. (Health & Saf. Code, § 11351.) The trial court sentenced Chirinos to a term of two years in state prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecutions evidence.
On November 11, 2002, Los Angeles Police Detective Warren Sult participated in an investigation of a call and deliver drug sales operation. Sult directed Los Angeles Police Officer Carmen Mederos to call a cellular telephone number, order drugs and indicate she was at the Carls Jr. at Roscoe Boulevard and DeSoto Avenue.
Mederos testified that when she called the number, a male Hispanic answered. Mederos asked if the male was Julio and the male indicated he was. Mederos asked if Julio could bring her a "40 of white, which is street vernacular for $40 worth of cocaine," to the Carls Jr. by the pay phones. The male indicated he did not know Mederos and that he would drive by the location to see if he recognized her. The male indicated he "had to be careful because the police were around, and he normally didnt deal with people he didnt know."
Approximately 20 minutes later, Chirinos arrived at the Carls Jr. and "kept looking at" Mederos. Chirinos entered the Carls Jr. but left shortly after entering. Chirinos again looked in Medeross direction before he walked from her view. Mederos again telephoned the number and asked why Julio had not dealt with her. The male again said he did not sell to anyone he did not know.
On November 14, 2002, Sult observed Chirinos engage in what appeared to be a delivery of narcotics. Sult followed Chirinoss Lincoln to an auto repair business. Sult approached Chirinos, told Chirinos he was conducting a narcotics investigation and asked if Chirinos had any narcotics in his car. Chirinos said he did not. Sults partner found a small baggie of cocaine in a coin pocket of Chirinoss pants, and four bindles containing 5.5 grams of cocaine in the drivers door map pocket of the Lincoln. Chirinos had in his hand the cellular telephone Mederos had called on November 11, 2002.
At Chirinoss apartment, Sult found a loaded nine-millimeter handgun in a babys crib in Chirinoss bedroom and approximately $ 1,800 in cash. Chirinos said he was unemployed and that he had obtained the funds from the sale of a vehicle.
In the center console of a black Oldsmobile registered to Chirinos, officers found two bindles containing 4.65 grams of cocaine. In a tin can in the trunk next to a shoebox containing $ 734 in bills of small denominations, officers found two larger bindles containing 20.93 grams of cocaine.
Sult opined Chirinos possessed the cocaine for the purpose of sale based on his observation of Chirinos on November 11, 2002, in response to Officer Medeross telephone call, his observation on November 14, 2002, of what appeared to be a delivery of a controlled substance, the manner in which the cocaine was packaged in separate bindles, the absence of any evidence of personal use of cocaine such as straws or a mirror, the fact Chirinos was not under the influence of cocaine at the time of his arrest, the presence of the cocaine in the trunk of the Oldsmobile next to a shoebox of money, the presence of a loaded handgun in Chirinoss apartment and the amount of money and cocaine found in the possession of an assertedly unemployed individual. Sult indicated the 30 grams recovered in this case would be sufficient for approximately 300 uses of cocaine and had a street value of approximately $3,000.
Sult testified "[s]ometimes the dealer will keep a gun, especially in their house, to prevent home-invasion robbery . . . ." Sult indicated drug dealers cannot report robberies to the police so they must have "protection in their house."
2. Defense evidence.
Chirinos testified in his own defense that he possessed all the cocaine recovered for his personal use and to share with friends at parties. On November 11, 2002, Chirinos went to Carls Jr. with a friend, Julio Camacho, to eat but they decided to go elsewhere. Julio left the cellular telephone in Chirinoss car. The money found in Chirinoss possession was the proceeds of the sale of a car.
CONTENTION
Chirinos contends the trial court erroneously admitted evidence of a loaded handgun in a babys crib in Chirinoss bedroom.
DISCUSSION
1. No abuse of discretion appears in the trial courts admission of the evidence.
Chirinos concedes evidence of the handgun was relevant in that Sult relied on it to support his opinion Chirinos possessed the cocaine for the purpose of sale. However, Chirinos contends the evidence was only marginally relevant and, because there was abundant other evidence upon which Sult could have based his opinion, the trial court abused its discretion in admitting evidence of the gun.
Chirinos also claims the trial court insufficiently examined the prejudicial impact of the evidence by stating merely, "as far as the prejudice part, you know, hes got the gun." Chirinos argues the connection of the gun to the drug operation was insubstantial because no drugs were found in his apartment and Chirinos was not armed when he was arrested. Chirinos claims evidence of the gun served only to inflame the jury by suggesting he was a dangerous and violent person. Chirinos asserts a prosecutor cannot introduce evidence of weapons that are not part of the underlying crime merely to show the defendant is a person who surrounds himself with weapons. (People v. Archer (2000) 82 Cal.App.4th 1380, 1394.)
Chirinos notes the jury deliberated for almost four hours before finding Chirinos guilty and admission of the inflammatory gun evidence may well have tipped the scales in favor of conviction. Thus, reversal is required to correct this manifest miscarriage of justice.
This claim fails. Evidence having a tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (People v. Garceau (1993) 6 Cal.4th 140, 177.) In its discretion, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice or consumption of time, or it would confuse the issues or mislead the jury. (Evid. Code, § 352.) The trial court is vested with wide discretion in deciding the relevancy of evidence and its discretion in admitting or rejecting evidence pursuant to Evidence Code section 352 will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice. (People v. Cain (1995) 10 Cal.4th 1, 33.)
Here, the evidence of a loaded handgun in the babys crib in Chirinoss bedroom did not suggest Chirinos was dangerous and violent. Rather, the People presented expert testimony indicating the presence of such a weapon in the home was for protection against home invasion robbery by individuals who knew Chirinos was a drug dealer and could not report the theft of narcotics. Thus, unlike the weapons in Archer, the handgun in this case was relevant to whether Chirinos possessed the cocaine for the purpose of sale because it demonstrated fear of home invasion robbery, an occupational hazard for drug dealers. Thus, Archer is distinguishable.
With respect to the claim the trial court failed adequately to weigh the probative value of the evidence against its prejudicial effect, a full quotation of the trial courts remarks reveals the paucity of Chirinoss argument. In addition to noting Chirinos did have the gun, the trial court continued, "thats a problem that the defense has. Its part of the evidence of the case. And, I mean, everything the People are trying to do here is to not prejudice the jury, but to prejudice the defendant, i.e., find him guilty." When defense counsel noted Sult had not relied on the presence of the gun at the preliminary hearing, the trial court observed Chirinos could cross-examine Sult on that point.
This record reveals the trial court heard argument from both sides, stated its evaluation of the probative value of the evidence versus its prejudicial effect and concluded the evidence was damaging but not in the sense Evidence Code section 352 seeks to avoid. Based thereon, Chirinos cannot show the trial court " ` "exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." " (People v. Jones (1998) 17 Cal.4th 279, 304.)
For all the foregoing reasons, admission of evidence of a loaded handgun in a babys crib in Chirinoss bedroom does not require reversal of his conviction.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J. and ALDRICH, J.