Opinion
E051638
08-30-2011
THE PEOPLE, Plaintiff and Respondent, v. NOE ESCOTO, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. BLF004858)
OPINION
APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. Affirmed in part; reversed and dismissed in part.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Noe Escoto appeals from judgment entered following jury convictions for two counts of possessing heroin and marijuana in prison (Pen. Code, § 4573.6; counts 1 and 2), and one count of possessing heroin for the purpose of sale (Health & Saf. Code, § 11351; count 3). In a bifurcated court trial, the court found true allegations that defendant had two strike priors (§ 667.5, subds. (b) - (i)). The trial court sentenced defendant to 50 years to life in prison, consisting of two consecutive 25-years-to-life terms for counts 1 and 2. The court stayed sentencing on count 3 under section 654.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court abused its discretion in refusing to allow impeachment evidence as to the prosecution's chief witness. Defendant also argues the trial court erroneously imposed consecutive sentences for counts 1 and 2. In addition, defendant asserts that there was insufficient evidence to support his conviction for possessing contraband and therefore all of his convictions must be reversed.
The parties agree defendant was improperly convicted of two separate counts of violating section 4573.6. Accordingly, we reverse count 2 (possessing marijuana in prison). As a consequence, defendant's sentencing challenge is moot. We reject defendant's remaining contentions and affirm the judgment, with the exception of count 2.
II
FACTS
On April 1, 2008, Correctional Sergeant Curtis Carney (Carney) at Chuckawalla Valley State Prison (CVSP), along with 18 to 20 other correctional officers, conducted a surprise search of defendant's housing unit, unit D-9. From outside defendant's cubicle 207-211, Carney watched for inmates in cubicle 207-211 surreptitiously attempting to destroy or dispose of contraband. Carney noticed defendant appeared unusually nervous and was intently watching the officers as they removed inmates from the cubicle for strip searches. Defendant was sitting on upper bunk 209. Carney saw defendant put his left hand in his left front pocket and leave his hand in his pocket for a minute while he furtively looked around. Defendant then removed his closed hand from his pocket and reached behind him, over a roll of toilet paper on top of another inmate's locker, locker 210. Defendant opened his hand behind the toilet paper roll and then put his hand back in his lap.
Carney continuously observed the area where he had seen defendant deposit something, to make sure no one went near the item or touched it. After all of the inmates had left defendant's cubicle, Carney entered, looked behind the toilet paper roll, and found a bindle. Carney photographed the bindle and area where he found the bindle. Carney then put the bindle in his pocket.
After completion of the search of the cubicle, Carney cut off the outer bindle wrapping, which consisted of a finger tip from a latex glove. The bindle contained eight small handwritten notes, referred to as "kites," addressed to various inmates. Each kite was individually wrapped in cellophane. Carney unwrapped each of the eight kite bindles and photographed their contents. Five of the kite bindles contained black tar heroin wrapped in cellophane and one of the kites contained marijuana.
Carney performed narcotics identification kit testing on the drugs. Carney also weighed the drugs. There was a total of .10 grams of marijuana and .30 grams of heroin. Carney did not request any forensic investigation, such as taking fingerprints tying the bindles to defendant. After testing the drugs, Carney sent a small sample of the drugs to the Department of Justice for further testing. A criminalist from the California Department of Justice identified the tested drugs as heroin and marijuana.
Carney testified that defendant was not known for being involved in drugs and, prior to the search in question, Carney was unaware of any such involvement. Carney acknowledged an unsigned copy of his report stated that Carney "ordered" defendant to put his hand in his pocket and pull out something and place the item on locker 210U behind a toilet paper roll. Carney explained that an investigative employee (inmate) inaccurately transcribed what Carney had reported. The inmate incorrectly typed that Carney "ordered," rather than "observed," defendant put his hand in his pocket. Carney acknowledged reading and signing his report, but the report he signed was not the report with the error. The report he signed did not contain the error.
Carney believed defendant had intended to put the bindle up his rectum and take it to prisoners in the administrative segregation unit. Some of the kites in the bindle were written in Spanish. Since Carney does not read Spanish, he asked the CVSP institutional gang officer, Officer Escobedo, to translate the kites. Escobedo was an expert in gang communication in prison and is bilingual in English and Spanish. Escobedo testified that six of the eight kites were written by inmate Acosta, not defendant. Escobedo did not know whether defendant wrote the other two kites, but believed defendant did not write them because his name was not on them. Acosta had been previously investigated at the prison. Escobedo was unaware of defendant ever having been in trouble in prison prior to the charged offenses.
Escobedo identified the inmates to whom the kites were to be sent. Most of the intended recipients were in the administrative segregation unit. Escobedo believed Acosta was providing drugs to the individuals receiving kites for distribution. In Escobedo's opinion, defendant possessed the drugs for sale. Escobedo based his conclusion on the packaging of the kites and drugs, and on the kite messages. Escobedo believed defendant intended to distribute the kites and drugs upon entering the administrative segregation unit.
III
EXCLUSION OF IMPEACHMENT EVIDENCE
Defendant contends the trial court abused its discretion in excluding evidence intended to impeach Carney, the prosecution's key witness. Defense counsel sought to introduce Carney's testimony provided in a separate trial, showing that Carney falsely accused inmate Sims of possessing drugs in prison. Sims was acquitted and the deputy public defender filed a complaint with the California Department of Corrections and Rehabilitation (CDCR complaint) arising from Carney's testimony in the Sims case. Defendant claims this raised a strong inference that Carney falsely accused defendant of possessing contraband and was relevant to Carney's credibility. Therefore defendant had a right to impeach Carney with the Sims evidence.
A. Background Facts
After the close of the prosecution's case, the trial court and counsel discussed the admissibility of the transcript of a portion of Carney's testimony in the Sims case and Sims's attorney's letter complaint regarding Carney's conduct in the Sims case in chambers. The trial court denied defendant's request to use the transcript and complaint as impeachment evidence. After the in camera discussion, the court did not state on the record its reasons for rejecting the evidence. The court placed the two documents under seal in the event defendant raised the matter on appeal.
Carney's Trial Testimony in the Sims Case
Carney testified he found a radio on Sims's bunk. At the time of his investigation, Carney knew the radio was engraved with the name and number of inmate Stephens. Although Carney advised those in his office of this, he did not include this important fact in his police report. This omission was an oversight. Carney found the radio in Sims's cubicle, on a little shelf made from a piece of cardboard, which was on a metal bar at the head of the bed. Inmates were not supposed to have shelves in their cubicles. An inmate name and number is normally placed on inmate items for identification purposes. Officers do not routinely check the names and numbers on inmates' items. When Carney found the radio, it had Phillips screws missing from the back.
Carney thoroughly searched Sims's bunk area. Carney did not find a Phillips-head screwdriver or bits. Carney believed the radio belonged to Sims because of what he found inside the radio. Inside the radio, Carney found envelopes containing names and addresses. The names and addresses did not belong to Sims. Inmate Stephens's name was on one piece of paper and on a timecard found in the radio. Carney did not mention this important fact in his report, even though he was aware of it when he wrote his report. Carney did not mention it because the initial report had to be written the day of the incident. He went through the evidence later after he had turned in his report. Carney did not, at the time, connect Stephens with the radio because the radio was not in Stephens's bunk area. Carney acknowledged Stephens's name was engraved on the radio.
Carney explained that, often, people who are drug dealers have connections outside the prison and give drugs to people in prison, with the expectation a prisoner's relatives will pay for the drugs. The money is sent by Western Union or money grams to someone outside who will hold the money. Carney found in the radio a pay-and-owe sheet in an envelope with Stephens's name on it.
Complaint Letter in Sims Case
By letter dated August 18, 2009, Deputy Public Defender Thomas C. Steelman, who represented Sims, complained to the Board of Prison Hearings about Carney's conduct in the Sims case. Steelman accused Carney of lying, concealing key evidence, and making crucial material errors and misstatements in his investigative report. For instance, Carney misstated that a pay-and-owe sheet was found in Sims's bunk area, rather than stating it was found in an envelope with personal papers belonging to inmate Stephens, and the envelope was found in a radio, engraved with Stephen's name. Steelman added that the writing on the items found in the radio did not appear to be Sims's writing. Steelman also accused Carney of destroying or concealing a letter addressed to Stephens and claimed Carney had made various additional misstatements, inaccuracies, and inconsistent statements. Steelman noted the jury quickly found Sims not guilty based on overwhelming evidence showing that Carney had made misstatements and concealed crucial exonerating evidence.
Defense counsel in the instant case intended to use Carney's testimony in the Sims case and the complaint letter to establish that Carney instigated false charges against defendant.
B. Discussion
Defendant contends he had a statutory and constitutional right to introduce evidence that Carney falsely accused Sims of possessing contraband and falsified police reports in connection with the Sims charges. Defendant argues that under Evidence Code sections 351, 780, and 1100, the Sims evidence was admissible as relevant evidence establishing the charges against defendant were false. Defendant claims the evidence impugned Carney's credibility and showed specific instances of Carney falsifying a police report and lying.
Defendant acknowledges the trial court might have excluded the complaint letter because it was inadmissible hearsay. Defendant argues that, nevertheless, the Sims transcript was admissible and sufficient to cast doubt on Carney's credibility. Defendant asserts that under his constitutional right of confrontation and under Evidence Code section 352, the evidence should have been admitted as more probative than prejudicial in that the Sims evidence supported defendant's theory that Carney falsely accused defendant of drug possession in the instant case.
C. Applicable Law
Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of an action. (Evid. Code, § 210.) We review any ruling on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Evidence Code section 352 provides the trial court with discretion to exclude even relevant evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, . . ." In ruling on whether evidence is substantially more prejudicial than probative, the trial court enjoys broad discretion. (Evid. Code, § 352; People v. Ayala (2000) 24 Cal.4th 243, 282.) "[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296; Ayala, at p. 282.)
Furthermore, the principles of due process are not offended by the exclusion of relevant evidence unless it is so prejudicial as to render the trial fundamentally unfair by infringing on defendant's due process right to present a defense. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.) No judgment shall be reversed on account of the erroneous exclusion of evidence unless it appears, upon examining the entire cause including the evidence, a miscarriage of justice has occurred. A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 751; Espinoza, at p. 1317.) Where a trial court's ruling does not constitute a refusal to allow the defendant to present a defense, but merely rejects certain evidence concerning the defense, the ruling does not constitute a violation of due process. In that situation, the appropriate standard of review is whether it is reasonably probable the admission of the evidence would have resulted in a verdict more favorable to the defendant. (Ibid.)
The trial court could have reasonably excluded the Sims evidence on the ground the evidence would have led to a time consuming and confusing trial within a trial on a collateral matter. Furthermore, the complaint letter constituted inadmissible hearsay and the Sims transcript could only be used for impeachment purposes since Carney was available to testify. Furthermore the Sims transcript does not establish that Carney lied or falsely accused Sims of a crime. Since, on the whole, the trial court reasonably excluded the transcript evidence as more prejudicial than probative, and there was no miscarriage of justice in doing so, we reject defendant's contention that the exclusion of the tangential Sims evidence constituted prejudicial error.
IV
CONSECUTIVE SENTENCING
Defendant contends the trial court erroneously sentenced him consecutively on counts 1 (possession of heroin) and 2 (possession of marijuana). The trial court imposed consecutive sentences of 25 years to life for each count.
Defendant asserts that the trial court incorrectly assumed it did not have discretion to impose sentencing on counts 1 and 2 concurrently. Defendant bases this assumption on the following discourse during sentencing:
"[Defense counsel]: [¶] . . . [¶] I believe they're asking for a few life sentences. And, again, I think that's completely inappropriate. The law says 25 to life. You know, multiplying them out over and over is, I think, abusive. Submit.
"THE COURT: Well, although I might agree with you on a personal level, I'm required to follow the law.
"Mr. Escoto's not eligible for probation. He's got three prior felony convictions, and he also has two strike convictions. That also makes him ineligible. So probation will be denied.
"With respect to Count 1, a violation of 4573.6, based upon the allegations of the strikes being found true, he'll be sentenced to 25 to life.
"Count 2, he was convicted of 4573.6 also with the strikes. He'll be sentenced to 25 years to life, and that will run consecutive for a total of 50 years to life.
"With respect to Count 3, the 11351 of the Health and Safety Code, he'll be sentenced on that count to 25 to life, but that will be stayed pursuant to Penal Code Section 654, since it's included within the other charges of which he's been convicted and sentenced."
Defendant asserts that the trial court erroneously assumed it did not have discretion to impose concurrent sentencing on counts 1 and 2. The People candidly respond that, regardless of any sentencing error, defendant was erroneously convicted under People v. Rouser (1997) 59 Cal.App.4th 1065, 1070, 1072-1073, of two counts of possession of a controlled substance in prison under section 4573.6. Count 1 was for possession of heroin and count 2 was for possession of marijuana. We agree, as do both parties that defendant should not have been charged and convicted of two counts of inmate drug possession (§ 4573.6). Defendant's conviction for count 2 is therefore reversed. As a consequence, defendant's sentencing challenge is moot.
V
SUFFICIENCY OF THE EVIDENCE
Defendant contends there was insufficient evidence to prove he possessed contraband. Specifically, he argues the evidence was insufficient to support his convictions for counts 1, 2, and 3, because the only evidence presented consisted of Carney's testimony, Carney's photographs of the area where he found the contraband, and the bindle containing the contraband.
Carney testified as follows:
"Q. Okay. You nevertheless had a clear visual of Mr. Escoto on this occasion?
"A. Yes.
"Q. As you were watching Mr. Escoto, what did you see?
"A. As I was watching the inmate, I saw him take his left hand - he was basically sitting on the bed with his back on a row of mattresses. I saw him take his left hand, put it in his left front pocket, hold it there for a minute. And he looked around.
"I couldn't see exactly what was in his hand because his hand was closed. I saw him pull out a closed hand, reach behind him on the 210 locker area, over that, kind of behind the roll of toilet paper, open his hand, and then put his hand back into his lap in front of him."
Carney further testified that he maintained visual surveillance of the 210 locker area until all the inmate had left the area. Then Carney looked behind the roll of toilet paper on locker 210 and found the bindle containing contraband.
Defendant claims the evidence was insufficient because (1) Carney did not see what defendant possessed in his hand, (2) Carney did not see defendant put anything in the area where Carney found the bindle, and (3) many other inmates had access to the area where Carney found the contraband.
Upon a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment below and determine whether or not the record discloses substantial evidence upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) "In making this determination, we '"must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Rayford(1994) 9 Cal.4th 1, 23.)
The evidence was more than sufficient to support the jury's findings that defendant possessed contraband. Although Carney did not see the bindle in defendant's actual possession, there was strong circumstantial evidence that defendant removed the bindle from his pants pocket during the surprise search and placed the bindle behind the toilet paper roll on locker 210. If circumstantial evidence is susceptible to two interpretations, the judgment of the court will be upheld if the circumstances reasonably justify the trier of fact's finding. (People v. Holt (1997) 15 Cal.4th 619, 668; People v. Story (2009) 45 Cal.4th 1282, 1296.) Carney's testimony also established that, after defendant placed the bindle behind the toilet paper roll, no one else was in the area prior to Carney finding the bindle. It was thus unlikely that anyone, other than defendant, placed the bindle behind the toilet paper roll. A reasonable inference could thus be made that defendant did so.
VI
DISPOSITION
Defendant's conviction on count 2 (§ 4573.6; possession of marijuana) is reversed and ordered dismissed. The trial court is directed to amend the abstract of judgment accordingly, with the amended abstract reflecting the imposition of a single prison term of 25 years to life for count 1. The trial court is ordered to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
King
Acting P.J.
Miller
J.