Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA316990, Charles F. Palmer, Judge.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Victor Garcia, appeals from the judgment entered following his conviction, by jury trial, for possession of cocaine base for sale, possession of methamphetamine for sale, and possession of heroin, with prior prison term enhancements (Health & Saf. Code, §§11351.5, 11378, 11350; Pen. Code, § 667.5). Garcia was sentenced to state prison for a term of seven years.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
1. Prosecution evidence.
On February 8, 2007, Los Angeles Police Department Officers Antonio Salazar and Patrick Olivier, and Detective Rudy Chavez, executed a search warrant at a residence on Fickett Street. On the outside of the house there were surveillance cameras by the front door and on a window grate. There were a number of people inside the house, including Robert Sierra, Yvette Gonzalez and defendant Garcia. In the front room, there was a safe. Inside the safe, there was a fully loaded .38-caliber revolver, an electronic scale of the kind commonly used for weighing narcotics, three balloons containing .73 grams of heroin, a small amount of green plant material resembling marijuana, and a gas bill in the name of Robert Sierra. On the opposite side of the room there was another scale.
Garcia had the following items on his person. In his left front pants pocket was a plastic baggie containing 2.24 grams of methamphetamine and another plastic baggie containing 13.3 grams of rock cocaine. In the same pocket there was $84. There was another $1,280 in Garcia’s right front pants pocket. He did not have any drug paraphernalia on his person, nor was he exhibiting any symptoms of being under the influence of methamphetamine, cocaine or heroin. Needle marks on Garcia’s arms and hands showed that he was, or had been sometime in the past, a heroin user. During a subsequent pre-booking search, a balloon containing .27 grams of heroin was discovered inside one of Garcia’s shoes.
Officer Olivier testified the amount of methamphetamine typically sold on the street was, at the low end, .05 to .1 grams for $20 and, at the high end, .15 grams for $40. Five hundredths of a gram was a usable amount. Olivier opined the methamphetamine found on Garcia was being possessed for sale. Detective Chavez testified .02 grams of cocaine base is a usable amount. A typical amount sold on the street would be .1 grams for $10. The heroin in Garcia’s shoe weighed .27 grams, an amount typically sold for $7 to $10. Chavez opined the cocaine base and heroin found on Garcia were being possessed for sale.
2. Defense evidence.
Detective Chavez testified no cash was found on any of the other people at the house. His opinion that the heroin had been possessed for sale was based on the assumption Garcia had been in possession of all four heroin balloons. If the heroin found in Garcia’s shoe had a different consistency than the heroin found in the safe, or if the balloons in the safe actually belonged to someone else, it would be less likely that the heroin in the shoe was being possessed for sale.
CONTENTIONS
1. The trial court erred by denying Garcia’s motion for a mistrial.
2. The trial court erred by refusing to admit evidence of an extra-judicial statement as a declaration against penal interest.
3. There was cumulative error.
DISCUSSION
1. Trial court did not err by denying Garcia’s motion for a mistrial.
Garcia contends that, because an officer gave testimony in violation of a prior agreement and court order, the trial court should have declared a mistrial. This claim is meritless.
a. Background.
The search warrant had been issued after a confidential informant made a controlled drug buy at the house on Frickett St. In pretrial proceedings, the trial court denied a defense request to disclose the confidential informant’s identity, but the court ruled there could be no testimony about the controlled buy because there was no evidence Garcia had been involved.
Just before trial began, the parties and the trial court discussed which areas the prosecutor should avoid when examining the police officers:
“[The prosecutor]: . . . I will tell the officers no testimony as to the buy that took place before the warrant was served or prior investigations. Is that fair?
“The Court: That is fair. I’m assuming that during none of those investigations did anyone observe the defendant engaged in any activity?
“[The prosecutor]: That’s right.
“The Court: I made that ruling based on the fact I was told that the only persons who were actually observed were persons other than the defendant.
“[The prosecutor]: That’s true. They had information, complaints that someone named Blackbird was selling there, but those would be hearsay.
“The Court: Correct.
“[The prosecutor]: And so Blackbird was the name on the warrant based upon the complaints . . . .
“The Court: Well, you’re not planning on introducing the warrant?
“[The prosecutor]: No, I’m not planning. No.
“The Court: So the jury will not learn about Blackbird.
“[The prosecutor]: That’s true. That’s all hearsay, and . . . we’re not divulging the confidential informant. We’re [also not] bringing in evidence of the controlled buy or any other investigation. All I think is important for the jury to know is that the police had a legal reason to be there . . . .”
When he testified, Detective Chavez was asked if he had an opinion as to why Garcia possessed the cocaine base. Chavez answered: “[F]or the purposes of sales based on the quantity, based on the complaint that we had that there was narcotics sales occurring at that location, based on the lack of user paraphernalia that we did not recover from the defendant, based on the scales that we recovered from the residence, based on the money that was recovered from the defendant, based on the cameras, and also based on the fact that the defendant did not display any objective symptoms of being under the influence. So based on all those things, I render my opinion.”
Defense counsel subsequently asked for a mistrial because, in violation of the trial court’s ruling, Chavez had referred to a complaint about drug dealing at the house: “[N]ow the jury has heard that people called the police to make complaints that narcotics were being sold at the location where they found Mr. Garcia.” The prosecutor replied he had gone over with the witness the things he was not supposed to discuss, including anything about prior investigations, and then argued that “based on how carefully the detective stepped around all the other items on that list that this was a slip on his part . . . rather than a purposeful violation of the order.” The trial court subsequently informed the parties: “We did receive a note from Juror number 3 which says, ‘Yesterday Detective Chavez mentioned during his testimony that the residence on Fickett Street had a history of drug sales. Can they please explain further.’ ”
The trial court ultimately denied a mistrial, but said it would order the testimony stricken and give a special jury instruction. The trial court also said it would permit Chavez to be recalled so he could be asked whether his opinion would change if there had not been prior complaints about drug dealing. The trial court subsequently gave this curative instruction: “There is no evidence of a history of drug sales at 1033 North Fickett. Detective Chavez was mistaken to suggest that there was a history. There is no evidence to support this suggestion.”
Chavez was recalled to the stand, and on cross-examination the following colloquy occurred:
“Q. Detective, when you testified originally on direct that one of the factors in concluding that the defendant possessed the narcotics in his pocket for purposes of sale, you said that one of the factors was complaints from people in the community. Do you remember that?
“A. Yes, sir.
“Q. If there had been no complaints from anybody in the community, would that affect your opinion as to why the defendant possessed the cocaine base in his pocket?
“A. No.
“Q. Would you still conclude that the defendant possessed the cocaine base in his pocket for purposes of sale?
“A. Yes.
“Q. What are the bases of that opinion?
“A. The quantity, that’s the strongest, and the camera, the currency, the scales and the lack of user paraphernalia.
“Q. Would the loaded gun make a difference to you?
“A. That also is a contributing factor.
“. . . . . . . . . . . . . . . . . . . . .
“. . . . . . . . . . . . . . . . . . . . .
“A. [Also that] the defendant did not display any signs of being under the influence.
“Q. What about . . . the heroin? Now, you testified as to the cocaine base. If there were no complaints from the community or citizens in the area, would you still arrive at the same conclusion as to why the defendant possessed heroin?
“A. Yes.
“Q. And is that opinion still that the defendant possessed it for purposes of sale?
“A. Yes.
“Q. And would you rely upon the same factors as you would for your opinion regarding the cocaine base or are there other factors you rely on?
“A. The same factors.”
b. Discussion.
“[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (People v. Ayala (2000) 23 Cal.4th 225, 283.) “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) “A motion for a mistrial . . . presupposes the effect of the evidence is so prejudicial as to be incurable by striking it and admonishing the jury to disregard it. In other words, a motion to strike presupposes error of some sort, whereas the motion for mistrial presupposes error plus incurable prejudice. In the first instance, the trial may go on to a conclusion; but in the second instance it is terminated, perhaps to begin anew. We examine the record to ascertain if the trial judge, in denying appellant’s motion for mistrial, abused his discretion.” (People v. Woodberry (1970) 10 Cal.App.3d 695, 708, fn. omitted.)
The trial court here did not abuse its discretion by denying a mistrial. The court instructed the jury there was no evidence of any history of drug sales at the house, and that Detective Chavez had been mistaken to suggest otherwise. We presume jurors follow a trial court’s instructions. (See People v. Frank (1991) 51 Cal.3d 718, 728 [“the general rule is that on appeal we must assume the jury followed the court’s instructions and admonitions”].) Given the strength of its special jury instruction, the trial court reasonably concluded Chavez’s reference to a single complaint about drug sales did not create incurable prejudice that irreparably damaged Garcia’s chance of getting a fair trial. Indeed, the jury’s verdict acquitting Garcia of possessing the heroin for sale, and convicting him on the lesser included charge of simple possession, would seem to indicate that, contrary to Garcia’s argument, the jurors did not find Chavez’s comment all that inflammatory.
2. Extra-judicial declaration was properly excluded.
Garcia contends the trial court erred by not admitting a witness’s extra-judicial statement as a declaration against penal interest. This claim is meritless.
a. Background.
Garcia was planning to call Yvette Gonzalez, one of the people found inside the house with Garcia, as a defense witness. But after consulting with an attorney, Gonzalez asserted her Fifth Amendment right against self-incrimination. Defense counsel then told the trial court he intended to call an investigator from the office of the alternate public defender, who would testify Gonzalez had told him the adults at the house were all drug addicts and that they had given Garcia money to purchase rock cocaine for them. Defense counsel explained how Gonzalez’s extra-judicial statement had come about: “[S]he was arrested on the day of the incident, was in custody, went to court. The record seemed to indicate as a result of the incident she worked out a deal with the district attorney and after being released came to court, told me about this, [and] I had her talk to the investigator.”
The trial court refused to admit the investigator’s testimony under the hearsay exception for declarations against penal interest. The court pointed out Gonzalez apparently believed she was not facing any criminal liability because she had already worked out a deal with prosecutors, and that as Garcia’s girlfriend of some three years her statement inherently lacked credibility.
“Under one of the statutory exceptions to the hearsay rule [Evidence Code section 1230], a party may introduce in evidence, for the truth of the matter stated, an out-of-court statement by a declarant who is unavailable as a witness at trial if the statement, when made, was against the declarant’s penal, pecuniary, proprietary, or social interest. A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.] To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.] On appeal, the trial court’s determination on this issue is reviewed for abuse of discretion. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 606-607, fn. omitted.) “We have recognized that, in this context, assessing trustworthiness ‘ “requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.” ’ ” (People v. Duarte (2000) 24 Cal.4th 603, 614.)
The trial court here did not abuse its discretion by concluding Gonzalez’s statement was untrustworthy given her relationship to defendant and the circumstances in which her statement had been made.
“The litmus test of determining the admissibility of the extrajudicial statement under section 1230 is whether the declarant should have realized or did realize that the statement when made was distinctly against his penal interest [citation].” (People v. Johnson (1974) 39 Cal.App.3d 749, 761; see People v. Shipe (1975) 49 Cal.App.3d 343, 353 [that extra-judicial confession was made after declarant had pled guilty to lesser offense indicated its untrustworthiness]; People v. Traylor (1972) 23 Cal.App.3d 323, 331 [“It is hard to see how, under all the circumstances, the driver should have realized that the statement he made to defendant’s counsel was ‘distinctly’ against his own penal interest. . . . [T]he fact that, on the advice of counsel, he had stood on his constitutional rights as a witness in no way proves that he appreciated that, when he admitted such matters as being on the scene in the statement to defendant’s attorney, he might lighten the People’s burden in any renewed criminal prosecution against himself.”].)
3. Cumulative error.
Garcia contends his convictions must be reversed for cumulative error. “Because we identified only one harmless error[, Detective Chavez’s single reference to a prior complaint of drug dealing at the house,] the claim of cumulative error is without merit.” (People v. Vieira (2005) 35 Cal.4th 264, 305; see also People v. Richie (1994) 28 Cal.App.4th 1347, 1364, fn. 6 [“Since we have found only one error properly preserved for appeal, we need not address appellant’s contention that cumulative error at trial requires reversal.”].)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.