Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.Super. Ct. No. BF123716A
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
On October 17, 2007, a sheriff’s deputy conducting a probation search of Robert William Glidewell’s apartment seized two bindles of methamphetamine, a glass pipe, a gram scale, and packaging materials. Rather than arresting him, the officer asked him if he wanted to be an informant. He agreed. Several months later, the only information he had provided was his supplier’s last name, which led nowhere. The deputy arrested him.
A jury found Glidewell guilty of two methamphetamine crimes. On appeal, he claims prejudice from evidence of a later methamphetamine arrest and plea to prove his knowledge of the nature of methamphetamine at the time of the probation search, from evidence of a misdemeanor forgery conviction to impeach his trial testimony, and from the cumulative effect of that evidence. We affirm the judgment.
BACKGROUND
On November 10, 2008, the district attorney filed an information charging Glidewell with possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378), a felony, and possession of a device for smoking methamphetamine (count 2; Health & Saf. Code, § 11364, subd. (a)), a misdemeanor. On August 26, 2009, a jury found him guilty as charged. On February 9, 2010, the court sentenced him to a term of 16 months on count 1 and to a concurrent term of 90 days on count 2.
DISCUSSION
1. Evidence of Post-Search Methamphetamine Arrest and Plea
Glidewell argues that the evidence of a later methamphetamine arrest and plea to prove his knowledge of the nature of methamphetamine at the time of the probation search prejudiced him. The Attorney General argues that by not objecting below on the ground he now argues on appeal he forfeited his right to appellate review of the issue, that by introducing in his own defense the evidence of his later arrest and plea he opened the door to the evidence he now challenges on appeal, that the admission of the evidence was not error, and that error, if any, was harmless.
Glidewell’s issue arises out of redirect examination of the deputy who arrested him. The prosecutor asked if he made contact with Glidewell on February 11, 2008. He said he had. Asked “what, if anything, ” he noticed, he testified, “He was nervous, had rapid speech.” Asked about his training and experience in the recognition of individuals under the influence of central nervous stimulants, he testified that he had had academy training, had made “in excess of probably 1500 arrests, including under the influence of stimulants and depressants, ” and had qualified as an expert witness “on drug influence.”
Asked if “rapid speech” is “one of the things” the deputy looks for to determine if a person is “under the influence of a central nervous stimulant, ” he replied, “It’s possible, yes.” Asked if he sometimes tests people whom he suspects are “under the influence of a central nervous stimulant” by “using what’s called a Rhomberg stance, ” he again replied in the affirmative. After the court sustained objections to two questions, one as “leading and suggestive, ” one as calling for a “medical conclusion, ” the court asked if Glidewell’s attorney wished “to take the witness on voir dire on his training.” He did so. After voir dire, the court found the deputy “duly qualified as an expert in recognition and detection of usage of drugs, and specifically methamphetamine.”
The prosecutor’s questioning resumed. Asked if “a person’s pulse” was “one of the factors” the deputy looks for to determine “recent central nervous stimulant use, ” he replied, “Yes, ” but before the prosecutor finished his next question Glidewell’s attorney objected as “getting back into the medical area again.” The court replied, “Possibly, but let’s see where this goes, counsel.” The prosecutor told the deputy, “If at any point I ask a question that you don’t think you’re able to answer, just let me know.” Glidewell’s attorney objected as “vouching for the credibility of the witness.” The court sustained the objection and, as requested by the defense, ordered the last question and answer stricken.
To the question whether “retracted eyelids or wide eyes” were “consistent or inconsistent with CNS [central nervous stimulant] use, ” Glidewell’s attorney made a “medical conclusion” objection. The court stated, “It may possibly be, but this area is a little bit different than what the gentleman is charged with in this case. [¶] Where are we going with this? Is this coming in for a limited purpose and, if so, for what purpose, sir?” The prosecutor replied by requesting a limiting instruction that “evidence of [his] use of a central nervous system stimulant, specifically methamphetamine, is to be accepted by the jury for the limited purpose of deciding whether or not this defendant knows the nature and character of methamphetamine as a controlled substance and it’s not –”
The court interjected, “You’re talking about an ’08 examination. Is that correct?” The prosecutor replied, “Yes.” The court instructed the jury that his “line of questioning” was “relevant to that simple issue alone. It can’t come in for any other purpose. It can’t be used to in any way infer that [Glidewell], if that be the case, was found to be under the influence of a substance, narcotic substance. It’s not evidence that he has a propensity to use that substance. It’s not being offered for that purpose. Can’t come in for any other purpose than to show, as counsel indicates, that if he knows what the substance is and he has knowledge of the nature and character of the substance. Only comes in for knowledge.”
Glidewell’s attorney asked the court if the deputy was “going to testify about the central nervous system, ” the court made a comment about seeing “where he goes with it, ” and the prosecutor asked again whether symptoms of “retracted eyelids” or “wide eyes” are “consistent or inconsistent with recent use of a central nervous system stimulant.” The deputy answered, without objection, “Consistent.” The prosecutor asked whether an “elevated pulse” was “consistent or inconsistent with recent use of a CNS.” Glidewell’s attorney made a “medical conclusion and speculation” objection. Without ruling, the court asked the deputy if he had any central nervous stimulant training. He answered, “Yes.” Glidewell’s attorney asked, and received, permission to take him on voir dire again. He asked questions about the location and purpose of “the biggest nerve” and whether that was “part of the central nervous system, ” to all of which he replied that he did not know. Objecting, Glidewell’s attorney argued that the deputy’s testimony “calls for a medical conclusion” and “requires expert medical testimony.”
Without ruling, the court asked the prosecutor to lay a foundation. He asked the deputy how many times he had seen someone he suspected of being under the influence of methamphetamine or any other central nervous stimulant. On the same grounds as before, and on the ground of “speculation, ” Glidewell’s attorney objected. The court overruled the objection. The deputy answered, “Thousands.” The court took note of a continuing defense objection and permitted the deputy to testify that an “elevated pulse” and “retracted eyelids or wide eyes” are symptoms that he expects to see in people he suspects are under the influence of methamphetamine. In a Rhomberg test, he testified, a person with feet together, eyes closed, and head tilted backwards stands for a time he or she is asked to estimate at 30 seconds. Over a defense “speculation” objection, he testified that eyelid tremors, rapid speech, and an estimate of 30 seconds as 15 seconds or less are consistent with recent use of a central nervous stimulant.
The deputy testified about a Rhomberg test Glidewell took on February 11, 2008. Glidewell’s attorney noted a continuing objection to “medical issues.” The court found that the deputy was qualified to testify as someone who has expertise in the recognition and detection of usage of drugs, specifically methamphetamine, on the central nervous system. Glidewell’s attorney objected on the ground of irrelevance. The court asked if the proffer was to show knowledge of the nature and character of methamphetamine. He replied, “Yes, ” and offered to stipulate “to knowledge, that [Glidewell] would understand the nature and character of methamphetamine.” The court asked if Glidewell’s attorney was willing to stipulate. “No, ” he replied, adding that his understanding was “that this was not to be mentioned, this 2/11 incident.” The court found the evidence admissible “pursuant to Evidence Code section 1101(b)” but “for that limited purpose only” and added the admonishment, “Not to show that the defendant has any predisposition to use narcotics or possess them, but only that he may, for the limited purpose of this case, have knowledge of nature, the recognition of what methamphetamine is, knowledge of its nature and purpose and character.”
“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as … knowledge …) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
At that juncture, Glidewell’s attorney made a motion to strike. The court denied the motion “because we’ve given the jury a limiting instruction for which they may use, if they feel appropriate, the events of February 11th, ’08.” On the basis of eyelid tremors, rapid speech, and estimate of 30 seconds as 13 seconds during his Rhomberg test on that date, the deputy opined Glidewell was under the influence of a central nervous stimulant. Methamphetamine, he testified, is a central nervous stimulant. When asked “what drugs or medication he had been using, ” Glidewell told him that “he smoked about $20 worth of methamphetamine.”
“Relevant evidence is evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’” (People v. Freeman (1994) 8 Cal.4th 450, 491 (Freeman), quoting Evid. Code, § 210.) Even though “‘there is no universal test of relevancy, the general rule in criminal cases’” is “‘whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense.’” (Freeman, supra, at p. 491.) Especially germane here is our Supreme Court’s observation, “‘Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.’” (Ibid.) A court has broad discretion to determine the relevance of evidence but lacks discretion to admit irrelevant evidence.
(People v. Heard (2003) 31 Cal.4th 946, 973.)
The prosecutor had the burden of proof of the elements of the crime of possession of methamphetamine for sale, one of which was that Glidewell “knew of the substance’s nature or character as a controlled substance.” (CALCRIM No. 2302.) After refusing to stipulate to his knowledge of the nature and character of methamphetamine, Glidewell now argues the court committed an abuse of discretion by admitting the evidence at issue “for that limited purpose only.” As the Attorney General cogently observes, “Nothing in [Evidence Code] section 1101, subdivision (b) requires that the other-crimes evidence occur prior to the underlying charged offense.” The standard of review of the admission of evidence under Evidence Code section 1101 is abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864, overruled on another ground by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) Glidewell fails to persuade us the court committed an abuse of discretion.
Our holding moots the other issues the Attorney General argues.
2. Evidence of Misdemeanor Forgery Conviction
Glidewell argues that the evidence of a misdemeanor forgery conviction to impeach his trial testimony prejudiced him. The Attorney General argues that by not objecting below on the ground he now argues on appeal he forfeited his right to appellate review of the issue, that the admission of the evidence was not error, and that error, if any, was harmless.
Glidewell’s issue arises out of his impeachment with, in the prosecutor’s words at trial, “a certified rap sheet” showing “a misdemeanor conviction for possession of a false check” on “May 12th of 2006.” (Peo. Exh. 3.) Right after showing him the document on cross-examination, the prosecutor asked him if he “pled guilty, no contest, to that crime, ” to which he replied, “Yes, I pled no contest.” Later, on redirect examination, he testified that the basis of his conviction was a single “insufficient fund” personal check he wrote.
On that record, Glidewell argues, “Proposition 8 provided that felony convictions could be used in impeachment. But no similar statutory exception exists for the use of misdemeanor convictions.” Not so. The primary authority on which he relies, People v. Wheeler (1992) 4 Cal.4th 284, deferring to the Legislature’s having “carefully weighed the distinction between felony and misdemeanor convictions when it decided to create a hearsay exception for felony convictions only, ” held that misdemeanor convictions, even if “admissible to prove that the conviction occurred, ” are inadmissible “to show that the witness committed the underlying criminal conduct” to “impeach a witness’s credibility.” (Id. at p. 300 & fn. 13.) Yet, as the court carefully noted, “Our holding is a narrow one, confined to the specific issue whether under current law a misdemeanor conviction is admissible as direct evidence of criminal conduct. Nothing in the hearsay rule precludes proof of impeaching misdemeanor misconduct by other, more direct means, including a witness’s admission on direct or cross-examination that he or she committed such conduct. Nor is the Legislature precluded from creating a hearsay exception that would allow use of misdemeanor conviction for impeachment in criminal cases.” (Id. at p. 300, fn. 14, italics in original.)
A few years later, the Legislature enacted Evidence Code section 452.5 and created “the type of hearsay exception contemplated in Wheeler.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1460 (Duran), citing Stats. 1996, ch. 642, § 3.) Here, as in Duran, “Evidence Code section 452.5, subdivision (b), the provision more directly pertinent to the question before us, states, ‘An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.’” (Duran, supra, at p. 1460, italics in original.)
In appellant’s opening brief, Glidewell cites People v. Letner and Tobin (2010) 50 Cal.4th 99 (Letner) for his argument that misdemeanor convictions are inadmissible hearsay. (Id. at pp. 178-179.) In Letner, however, the crimes occurred in 1988 and the trial ended in 1990, all before Wheeler contemplated in 1992 the hearsay exception that the Legislature enacted in 1996. (Letner, supra, at pp. 114, 174.) In respondent’s brief, the Attorney General relies on Duran. Glidewell did not file an appellant’s reply brief but did file a subsequent letter citing Letner, together with a case he “discovered since briefing was completed, ” People v. Santos (1994) 30 Cal.App.4th 169, 178-179, which he “believes is relevant” to his argument that misdemeanor convictions are inadmissible hearsay. Santos, however, relies on Wheeler. (Ibid.)On the rationale Duran articulates, Letner, Santos, and Wheeler are inapposite. Yet Glidewell argues here, as the defense in Duran argued, “that a court record of conviction is hearsay when offered to prove that the person adjudged guilty actually committed the crime.” (Duran, supra, 97 Cal.App.4th at p. 1459.) Glidewell’s argument here, like the defense argument in Duran, “fails to take into account intervening changes in the law since Wheeler.” (Ibid.)
Even though, in the prosecutor’s words at trial, “a certified rap sheet” was admissible to show Glidewell’s “misdemeanor conviction for possession of a false check” on “May 12th of 2006, ” his testimony that he pled no contest after he wrote a single “insufficient fund” personal check was outside the scope of Evidence Code section 452.5, subdivision (b). (People v. Cadogan (2009) 173 Cal.App.4th 1502, 1515, fn. 4.) Yet, rather than prejudicing him, his testimony could only have diminished the impact of his impeachment by showing that he was cooperative with the criminal justice system and that his offense was arguably only a trifling lapse that even an honest but careless person might commit. The record persuades us that, even had he not so testified, a more favorable verdict was not reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const., art. VI, § 13.)
Our holding moots the other issue the Attorney General argues.
3. Cumulative Prejudice
Glidewell argues that the cumulative effect of the evidence he challenges prejudiced him. The Attorney General argues the contrary. Our review of the record discloses no cumulative error requiring reversal of the judgment. (People v. Bradford (1997) 15 Cal.4th 1229, 1344.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Levy, J.