Opinion
E033051.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER HARRISON GARCIA, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Stacy A. Tyler, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and not guilty of dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)).[] The trial court thereafter found true that defendant had suffered a prior strike conviction (& sect;§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and that defendant had sustained two prior prison terms (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of seven years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction for possession of methamphetamine for sale because the People failed to prove the chain of custody of the pouch containing the drugs and drug paraphernalia while it was in the officers police vehicle; and (2) the trial court erred in granting the Peoples motion to exclude reference to the witnesss prior conviction for violating section 4573.5 because it was a crime of moral turpitude. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2002, defendant drove to the gas station where his ex-girlfriend, Janet Kreis, worked, to visit her. He pulled around to the back of the building and walked in front of the window where Kreis was working. Kreis noticed defendant holding a blue zippered bag. She had previously seen that bag under the drivers seat of the car defendant drove. Kreis recognized the bag as containing a "hype kit," which defendant used to hold hypodermic needles, spoons, or other drug paraphernalia. She later saw defendant place the bag into the trunk of the car. Defendant had previously told Kreis that he was going to buy drugs to sell when his current girlfriend, Cynthia Dalley, cashed her two paychecks.
The following morning, when Kreis woke up at her parents house, she noticed that one of her mothers gold necklaces, which her mother kept on a lamp in the mothers room, was missing. Kreis contacted defendant and asked him if he knew anything about the missing necklace or if he took it. Defendant denied taking it. Kreis informed defendant that she was angry, and that if the item was not returned, she would call the police. At that point, defendant told Kreis, "You dont want to do that because you know what happens to cop-callers." Defendant and Dalley were staying in a trailer at the house owned by Kreiss parents.
Later that day, defendant drove to Kreiss house to pick up Dalley, who, with Kreiss permission, was in the garage doing her laundry. When defendant entered the garage, Kreis asked defendant if he had retrieved the missing property. Defendant replied, "[N]o, and Im not going to." Kreis thereafter went into the house and called 911.
After the police arrived at the house, Kreis informed them what had occurred and that defendant was in the garage. The deputies yelled for defendant to come out. A couple of minutes later, Dalley came out alone. The deputies asked her about defendants whereabouts, and she responded that he was "inside somewhere." The deputies again yelled for defendant to come out, but defendant did not comply. After the deputies heard noises in the backyard, they went around the back of the house and apprehended defendant on a nearby street.
After defendant was apprehended, Dalley told Deputy David Frayeh that there was a pouch with drugs in it inside the garage. She pointed to where she believed it had been located, but Deputy Frayeh told her it was not there. Dalley stated that defendant must have placed it somewhere. Eventually, the deputies found the "bluish-grayish" zippered pouch that Kreis had previously seen in the garage. Inside the pouch, the police found a wallet; a scale; a spoon; a ledger book; miscellaneous paperwork; several hypodermic needles and syringes; eight blue, one-inch "Ziploc" plastic bags containing a total of 2.33 grams of methamphetamine; and several extra bags.
After Sergeant Steve Smith opened the pouch and examined its contents, he handed it to Deputy Daniel Alonzo. Deputy Alonzo then examined the contents of the pouch. Defendant asked for the wallet that was inside the pouch because he said that it contained contact information for his friends. Deputy Alonzo gave defendant the wallet, then took the pouch to his police vehicle and placed it on the front passenger seat. He left the car unlocked, but the windows were closed. Deputy Alonzo remained in the area, and the car was in his line of sight the entire time thereafter. He did not see anyone other than himself or defendant enter his police vehicle after he placed the pouch inside. However, Deputy Alonzo acknowledged that he did not have immediate control of the pouch after he set it in the car and that there were about six other officers present who had access to the car. Later, Deputy Alonzo booked the pouch into evidence at the police station, where it was bar-coded and locked up. It was transported to court in an envelope sealed with red tape.
Deputy Frayeh, Deputy Alonzo, and Sergeant Smith all testified that the pouch and its contents (with the exception of the hypodermic needles and the drugs, which were destroyed or sent for analysis) looked the same in court as they did on the day the deputies found the pouch. Based on the contents of the pouch, Deputy Alonzo opined that the methamphetamine was possessed for the purposes of sale.
Dalley testified for the defense. She stated that she did not know defendant to have a blue-gray pouch and that she did not hear him talking about selling drugs. She denied that she pointed out the pouch to a police officer. Instead, she claimed that she showed the police the pouch only after one of the deputies threatened to put a warrant out for her arrest with $50,000 bail. She also said that on the day of the incident there were two other men at Kreiss house using methamphetamine. However, she admitted that the first time she told anyone about the two men was when she talked to the defense investigator the day before she testified. She also acknowledged that she and defendant were still boyfriend-girlfriend at the time of her testimony and that she loved defendant. She stated that she visited defendant in jail several times since he was arrested and admitted that she lied to the sheriffs deputies about her own drug use.
II
DISCUSSION
A. Chain of Custody
Defendant essentially contends the prosecutor failed to establish a chain of custody of the pouch and its contents while it was in Deputy Alonzos police vehicle, and therefore his conviction should be reversed. We disagree.
When a physical object is offered as direct, demonstrative evidence of a crime, a party wishing to introduce expert analysis of that evidence must show that the analyzed evidence is in fact evidence from the crime at issue, and, as a corollary, that between receipt and analysis there has been no substitution or tampering. (People v. Riser (1956) 47 Cal.2d 566, 580, disapproved on another ground in People v. Chapman (1959) 52 Cal.2d 95, 98.) However, the proponent of demonstrative evidence cannot possibly be expected to absolutely negate every possible assertion of substitution or tampering. (Riser at p. 580.) As the California Supreme Court explained: "The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." (Id. at pp. 580-581; accord, People v. Lucas (1995) 12 Cal.4th 415, 444.)
Thus, an evidentiary challenge on chain of custody grounds will not be sustained where no vital break in the chain of custody for the proffered evidence was shown to exist, and the defendants chain of custody evidentiary objection is based on the mere contention that tampering could have occurred because the prosecution was unable to negate all possibility of such tampering. (People v. Riser, supra, 47 Cal.2d at pp. 581-582.)
Here, Deputy Frayeh, Deputy Alonzo, and Sergeant Smith all testified that the pouch and its contents looked essentially the same in court as they did on the day the deputies found the pouch. Furthermore, both Deputy Alonzo and Sergeant Smith testified that the pouch was transferred from the hand of the deputy who found it directly into Deputy Alonzos hands, and from there directly into Deputy Alonzos police vehicle. Deputy Alonzo also testified that the windows of his police car were closed; that the car was in his line of sight the entire time after he placed the pouch inside it; and that he did not see anyone enter the car after he set the pouch inside the vehicle. There was not a scintilla of evidence supporting any possible claim of substitution or tampering. Any chain of custody deficiency was based on the barest speculation of tampering, as the trial court noted at the motion to dismiss hearing. Moreover, this alleged break in the chain of custody was not fatal, as the evidence clearly remained in official custody. "It is proper to presume that an official duty has been regularly performed unless there is some evidence to the contrary. [Citations.]" (People v. Lugo (1962) 203 Cal.App.2d 772, 775.)
Accordingly, an adequate chain of custody was established, and the alleged inadequacies in the chain of custody went to weight, not admissibility, of this demonstrative evidence.
B. Exclusion of Evidence
Defendant also contends the trial court erred by disallowing impeachment of a key witness with her prior felony conviction of knowingly bringing alcohol or a noncontrolled substance in a penal institution (§ 4573.5) because that crime does constitute one of moral turpitude. The People respond defendants contention lacks merit because, as a matter of law, the offense specified in section 4573.5 is not a crime of moral turpitude; in the alternative, they claim any error was harmless. We are inclined to agree with the People.
Prior to trial, the People moved to exclude any reference to Kreiss 1999 conviction for bringing alcoholic beverages or noncontrolled substances into a state prison or correctional facility in violation of section 4573.5. The prosecutor argued that the offense did not involve illegal drugs and that it was not a moral turpitude conviction and therefore inadmissible. Defense counsel asserted that the element of knowledge, i.e., knowingly bringing alcohol or a noncontrolled substance to jail made the crime one or moral turpitude. After noting that there was no case law establishing whether or not the crime was one of moral turpitude, and that "simple possession" of even illegal narcotics was not a crime of moral turpitude, the trial court granted the Peoples motion to exclude reference to the conviction.
A trial courts decision to admit or exclude impeachment evidence is reviewed for abuse of discretion. (See People v. Wheeler (1992) 4 Cal.4th 284, 296-297.) The trial courts discretion is abused when its ruling falls outside the bounds of reason. (People v. Osband (1996) 13 Cal.4th 622, 678.)
A witness may be impeached with evidence of any felony conviction involving moral turpitude. (Evid. Code, § 788; People v. Campbell (1994) 23 Cal.App.4th 1488, 1492.) In order for a prior conviction to be admissible for impeachment purposes, the least adjudicated elements of the offense must necessarily involve moral turpitude. (Campbell at p. 1492.) "The `least adjudicated elements test means that `from the elements of the offense alone — without regard to the facts of the particular violation — one can reasonably infer the presence of moral turpitude. [Citations.]" (Ibid.; see also People v. Castro (1985) 38 Cal.3d 301.)
Moral turpitude has been defined by this court as "conduct indicating bad character, a readiness to do evil or moral depravity of any kind [citations]; acts `attended by knowledge of [the] circumstances and a conscious decision to exploit them sufficient to signify a readiness to do evil . . . [citation]; [or] `"an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man . . . []" [citation] . . . ." (People v. Lepolo (1997) 55 Cal.App.4th 85, 91 [brandishing a machete and threatening an officer involve moral turpitude]; see also People v. Garrett (1987) 195 Cal.App.3d 795, 799-800 [possession of an illegal weapon is a crime of moral turpitude]; People v. Littrel (1986) 185 Cal.App.3d 699, 703 [possession of a firearm by a felon is a crime involving moral turpitude]; People v. White (1992) 4 Cal.App.4th 1299, 1304 [shooting at inhabited dwelling constitutes crime of moral turpitude]; People v. Clair (1992) 2 Cal.4th 629, 653.)
Section 4573.5, in pertinent part, provides: "Any person who knowingly brings into any state prison or other institution . . . or any other place where prisoners or inmates of these institutions are located . . . or any other institution or place where prisoners or inmates are being held . . . or within the grounds belonging to any institution or place, any alcoholic beverage, any drugs, other than controlled substances, in any manner, shape, form, dispenser, or container, or any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming any drug other than controlled substances, without having authority so to do . . . is guilty of a felony."
As the parties point out, section 4573.5 is related to, and is to be construed together with, section 4573, which prohibits bringing or sending illegal or controlled drugs or drug paraphernalia intended to be used for a controlled substance into a prison or jail. (People v. Buese (1963) 220 Cal.App.2d 802, 807.)
Even assuming the trial court improperly found section 4573.5 to be a crime of nonmoral turpitude, the error was harmless.
A judgment will not be reversed based on the improper impeachment of a witness with a prior conviction unless it is reasonably probable that the outcome of the trial would have been different but for the introduction of the evidence. (People v. Castro, supra, 38 Cal.3d 301, 319.)
In the present matter, defendants girlfriend and defense witness, Dalley, told Deputy Frayeh that there was a pouch in the garage with drugs in it. Deputy Frayeh testified that Dalley led the deputies to where the pouch had been. And when the pouch could not be found at that location, Dalley informed the deputies, "[I]t was sitting right there. . . . [Defendant] must have put it somewhere . . . ." Deputy Alonzo testified that defendants wallet was inside the pouch when it was found and that defendant knew his wallet was in the pouch. In fact, defendant asked for his wallet from inside the pouch because he said that it contained contact information for his friends. On the other hand, the sole witness for the defense was shown to have lied and to have a potential bias in favor of defendant. Accordingly, it is not reasonably probable that the outcome of the trial would have been different had the prosecutions witness, Kreis, been impeached by her prior conviction.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J. --------------- Notes: All future statutory references are to the Penal Code unless otherwise stated.