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People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Aug 26, 2020
G057460 (Cal. Ct. App. Aug. 26, 2020)

Opinion

G057460

08-26-2020

THE PEOPLE, Plaintiff and Respondent, v. JOANA MARTINEZ, Defendant and Appellant.

Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16NF2346) OPINION Appeal from a judgment of the Superior Court of Orange County, Kevin Haskins, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Following a jury trial, defendant Joana Martinez was convicted of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and placed on formal probation for three years with a condition that she serve 90 days in county jail.

Originally, defendant was also charged with transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)) and destroying or concealing evidence (Pen. Code, § 135). Upon the motion of the People prior to trial, the court dismissed the charge of destroying evidence. The jury was unable to reach a verdict on the transportation charge, and it, too, was dismissed by the court upon the motion of the People.

Defendant raises three contentions on appeal. First, she contends the court abused its discretion by admitting several items into evidence over her objection that the prosecution had failed to show an adequate chain of custody. Second, she asserts the court abused its discretion by denying her three mistrial motions. Third, she argues the cumulative impact of these errors deprived her of due process and necessitates the reversal of the judgment. We reject each contention and affirm the judgment.

STATEMENT OF FACTS

Prosecution Evidence

On the evening of May 13, 2016, defendant was riding in a car driven by her husband, Edgar Bravo, which was stopped by Detectives Fillers and Uceda for expired registration tags. As the detectives were approaching the car, defendant's door opened and Fillers heard the sound of glass breaking, before the door closed. When Fillers contacted Edgar, Edgar was nervous and shaking and admitted he had an outstanding bench warrant. He was holding a piece of toilet paper in his hand, which Fillers recognized as something a methamphetamine user might use to hold a pipe. Fillers later determined the breaking glass he heard was a used methamphetamine pipe with a small amount of methamphetamine in it. As Fillers walked around the car, he noticed a small piece of plastic that appeared to be wedged in the closed trunk by the rear windshield. When he pulled on the piece of plastic, he realized it was a small plastic baggie.

As the record contains references to defendant's last name being Bravo, we will refer to Mr. Bravo by his first name to avoid confusion. No disrespect is intended.

Both Edgar and defendant were taken out of the car and seated on a nearby curb, about five feet apart. Fillers watched over them while Uceda searched the car. During the search, Uceda found a small gray bag that looked like a makeup bag, a small black notebook, two more small plastic baggies, two cell phones, and $239.50 in cash. The first page of the notebook contained the statement "this journal belongs to" and the name "Joana Bravo" was handwritten in. The notebook also contained several pages of pay/owe sheets with names, dollar amounts, and some quantities.

After defendant was arrested and placed in a patrol car, Uceda alerted Fillers to a hole in the ground directly behind the spot where defendant had been sitting on the curb. There, Uceda found a plastic bindle containing 4.89 grams of methamphetamine and another small, plastic baggie. When Fillers went to the patrol car to talk to defendant, he noticed yet another small plastic bag on the floorboard between her feet.

Based on a hypothetical corresponding to the facts of defendant's case, Detective Conroy, the prosecution's narcotics expert, opined the methamphetamine was possessed for sale, not for personal use.

Defense Evidence

Both defendant and Edgar testified defendant did not use or sell methamphetamine. Edgar admitted having a long history of drug addiction and that the bag of methamphetamine was his. He pleaded guilty in this case to possession of methamphetamine and paraphernalia, the pipe.

Edgar's cousin was involved in selling drugs, and they had been at his house prior to being stopped by the police. Defendant and Edgar testified that while they were visiting Edgar's cousin, defendant found the notebook and angrily threw it at Edgar, believing it contained evidence of his involvement with drugs. Edgar, however, had initially told the defense investigator that they found the notebook at a park. Edgar wrote "Joana Bravo" in the notebook because he likes writing this version of her name on things. Defendant denied that any of the seized items belonged to her.

DISCUSSION

Defendant contends the court abused its discretion (1) by admitting into evidence the items collected at the scene, despite her chain of custody objection and (2) by denying her three mistrial motions. The court did not abuse its discretion. Accordingly, we reject defendant's contentions, as well as her claim of cumulative error. CHAIN OF CUSTODY

Defendant contends the court erred by admitting into evidence items seized at the scene "because the prosecution failed to establish an adequate foundation for the chain of custody." Uceda found most of the evidence incriminating defendant: the bindle of methamphetamine, the notebook with the pay/owes sheets, $239.50 in cash, and three small plastic baggies. He also seized two cell phones. Uceda was responsible for booking these items into evidence, as well as the two plastic baggies Fillers found. Uceda, however, was unavailable to testify at trial. Fillers's testimony was used instead to establish the chain of custody. Defendant asserts there were "vital gaps in the chain of custody" between the time Uceda discovered the items and when they were admitted into evidence. Although the chain of custody evidence was not perfect, there was no indication the evidence was tampered with and Fillers identified the pieces of evidence as items he saw Uceda collect at the scene. Accordingly, we reject defendant's contention.

Applicable Law

When establishing chain of custody, "'"[t]he 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."'" (People v. Wallace (2008) 44 Cal.4th 1032, 1061.) We review a court's admission of evidence over a chain of custody objection for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 134.)

Relevant Proceedings Below

The court conducted two pretrial evidentiary hearings to determine whether the items Uceda seized at the scene would be admissible at trial. Fillers was the only witness to testify, and he testified at both hearings. At the first hearing, the court and parties focused on whether the prosecution would be able to establish an adequate foundation for the admission of the evidence based on Fillers's personal knowledge. The second hearing addressed the defense objections of chain of custody, hearsay, and Crawford. At this hearing, Fillers described the department's procedure for booking evidence and how he retrieved the evidence from the police department's property division to bring it to court for the hearing.

Crawford v. Washington (2004) 541 U.S. 36.

Following the evidentiary hearings, the court overruled the defense's objections and concluded there was an adequate foundation for Fillers to testify at trial that: (1) he was present when Uceda conducted the search of the car; (2) Uceda did not carry anything with him to the car when he began the search; (3) Uceda came out of the car with items that he then placed on the car's trunk; (4) Uceda placed those items in a bag that he took to the police station; and (5) at the police station, he saw Uceda using the police department's computer program to book the items into evidence. The court, however, ruled Fillers could not testify as to where any of the particular items were found within the car. Addressing defendant's chain of custody argument, the court tentatively ruled the prosecution would be able to show an adequate chain of custody and that the weaknesses in the chain went to the weight of the evidence rather than its admissibility.

At trial, Fillers testified he was watching defendant and Edgar seated on the curb, while Uceda searched the car about 10 feet away. He saw Uceda place items he found in the car onto the car's trunk, including a woman's purse, a small gray bag that appeared to be a makeup bag, a small black notebook, two cell phones, and two small plastic baggies. Uceda placed all of the items, with the exception of the purse, into a brown bag and then put the bag in the front seat of their patrol car. Fillers saw Uceda had a wad of cash in the bag. He also witnessed Uceda holding a bindle of methamphetamine and a small plastic baggie found where defendant had been sitting on the curb. Fillers gave the two small plastic baggies he found at the scene to Uceda for booking into evidence. They left the scene and drove to the police station, where Fillers saw Uceda at his desk with the bag of evidence, beginning to book the items into evidence.

Fillers explained the department's procedure for booking items into evidence begins with an officer using a computer program to itemize each piece of evidence and print out an evidence tag for each item. The tag lists the assigned case number, the officer's name, the date and time, and a brief description of the evidence. The officer then puts a piece of evidence into a manila envelope, attaches the corresponding tag to the envelope, seals the envelope, initials the seal, and puts the envelope into a secured evidence locker at the station. When money is booked as evidence, the officer uses a department "money envelope" and indicates the denomination of the currency. A second officer verifies the count and puts the date and time of the verification. The money envelope is placed inside a manila envelope that is sealed.

Prior to coming to court, Fillers contacted the police department's property division and requested all of the evidence booked under the number assigned to defendant's case. In court, he used the evidence tags on the envelopes to locate the evidence collected at the scene: the small gray bag, the black notebook, five small plastic baggies, the cash, and the cell phones. Each evidence tag included a description of the item, the assigned case number, Uceda's name, and the date and time the item was seized. After taking the pieces of evidence out of their sealed envelopes, Fillers confirmed they were the items he had seen at the scene.

There were, however, discrepancies in the booking of the evidence. Although the items were seized during the traffic stop on May 13, the seals on the evidence envelopes were dated May 16. Because Fillers did not watch Uceda place the evidence into the envelopes, seal them, or place the envelopes into the evidence locker, he was unable to account for this delay. The property sheet printed on May 16, which lists items booked into evidence in the case, did not include the money seized. When asked about this discrepancy, Fillers explained the money was not booked into evidence by May 16 because he did not verify Uceda's accounting of the currency until May 17. But there were inconsistent dates on the evidence envelopes for the money. The interior money envelope indicated Fillers verified Uceda's count of the currency on May 17; the money envelope, however, was inside another envelope that was dated as sealed on May 16. Fillers could not explain this discrepancy. Additionally, the glass pipe was listed on the property sheet as item number five but was in an envelope labeled number six; there is no envelope labeled number five.

When the prosecutor sought admission at trial of the items seized at the scene, defense counsel renewed her objection that "a proper chain of custody" had not been established, emphasizing the discrepancies in the chain of custody. In considering the issue, the court personally and meticulously examined the envelope for each item of evidence, noting its label, seal, initials, and dates. The court also noted the envelopes were sealed until opened by Fillers in court. Acknowledging there were "some defects in the chain of custody," the court nevertheless ruled the evidence admissible, explaining: "based on the totality of the evidence presented, that there is a reasonable certainty that the evidence has not been altered and that the items being produced in court that the People seek to admit was, in fact, seized on the date in question and was booked as evidence on May 16th as indicated on the seals."

Court Did Not Abuse its Discretion as the Prosecution Established an Adequate Chain of Custody

Defendant contends the court abused its discretion by admitting the evidence collected at the scene, asserting there were "vital gaps in the chain of custody . . . ." First, she asserts "Fillers did not have personal knowledge of the search and where the items were discovered." Second, she contends "Fillers also did not specifically witness the items getting to the police station." Both contentions are unsupported by the record. Fillers had personal knowledge Uceda searched the car and saw Uceda placing items found in the car onto the car's trunk. That Fillers did not know specifically where inside the car the items were discovered was not a gap in the chain of custody. Fillers also saw Uceda place the items in a brown bag that Uceda put on the front seat of their patrol car before they drove to the police station and then saw Uceda with the bag at the station. There is no gap in this portion of the chain of custody either.

Defendant next asserts a vital link in the chain of custody was broken because "Fillers did not see the items seized being placed into the evidence envelopes or when the envelopes were placed in the evidence locker." She contends there was a "four-to-five day span where" the evidence was unaccounted for and the notebook, methamphetamine, and cash could have been tampered with during this time. Defendant, however, offers nothing more than the barest speculation that these items could have been tampered with, which is insufficient to require their exclusion. (People v. Wallace, supra, 44 Cal.4th at p. 1061.)

While there was no testimony concerning the location of the evidence between May 13th (when Fillers saw Uceda begin booking the property at the station) and May 16th (the date on envelope seals), the court was not required to exclude the evidence based on this gap. (Cf. People v. Hall (2010) 187 Cal.App.4th 282, 294 [blood sample properly admitted into evidence over a chain of custody objection even though criminalist was "unable to testify as to the whereabouts of the blood sample during the three days before the crime lab received it and the six days following the crime lab's receipt of the blood sample"].) Fillers was able to smooth over this and the other gaps in the chain of custody as he recognized the evidence in court as the items he saw Uceda collect at the scene. Therefore, the court could conclude with reasonable certainty that the evidence Uceda collected at the scene was not tampered with and was the same evidence presented at trial. The court did not abuse its discretion by admitting the evidence. DENIAL OF MISTRIAL MOTIONS

During her trial, defendant made three separate motions for a mistrial, and the court denied each. Her first two motions were made after prosecution witnesses blurted out information the court had ruled inadmissible. Her third motion was made after the prosecutor's closing argument, on the ground the prosecutor was referring to facts not in evidence by arguing that some of the seized items were found in defendant's purse during the search. Defendant contends the court erred by denying her motions and that the denials resulted in a violation of her Sixth Amendment right to a fair and impartial jury and her due process right to a fair trial under the Fifth and Fourteenth Amendments. We disagree.

Standard of Review

"A trial court should grant a motion for mistrial 'only when "'a party's chances of receiving a fair trial have been irreparably damaged'"' [citation], that is, if it 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.' [Citation.] Accordingly, we review a trial court's ruling on a motion for mistrial for abuse of discretion." (People v. Avila (2006) 38 Cal.4th 491, 573.)

The Court's Pretrial Rulings

As discussed ante, the court ruled prior to trial that Fillers would not be permitted to testify where Uceda found the evidence in the car or where Uceda said he found the items. The court indicated, however, the prosecution would likely be able to argue the location of the evidence in the car at the end of the case because "there is enough to support a reasonable inference."

In its pretrial rulings, the court also excluded any evidence regarding gangs, finding such evidence was irrelevant and highly prejudicial as there were no allegations defendant was a gang member. After the prosecutor indicated his drug expert was assigned to a gang detail and that the assignment was relevant to his expertise, the court directed the prosecutor to lay the foundation for the detective's expertise without the detective mentioning being assigned to a gang detail or being a gang detective. The court also granted the defense motion "that the parties admonish their witnesses of any in limine ruling limiting their testimony."

First Motion for a Mistrial

Early in his testimony, Fillers was asked to describe the items he saw Uceda collect and place in the paper bag for transportation to the station. Fillers responded Uceda found an amount of cash in the gray bag and that Uceda told him the cash was in the gray bag, violating the court's in limine ruling. Defense counsel immediately objected. The court sustained the objection, struck the answer, and admonished the jury to disregard the answer entirely.

The next day, outside the jury's presence, the court raised the issue that Fillers had violated the court's in limine ruling by "volunteer[ing] that Uceda had told him that he had found the cash inside the gray purse." When asked for an explanation, the prosecutor responded Fillers must have forgotten the court's ruling and "it slipped out."

Below, the prosecutor asserted Fillers was present when the court made its in limine ruling. In her opening brief, defendant argues this statement by the prosecutor was "incorrect and misleading" because Fillers had been excused and asked to remain outside when the court ruled. We disagree with this characterization of the prosecutor's argument. Defendant overlooks Fillers presence in court after the second evidentiary hearing when the court clarified that Fillers could not testify where Uceda said he found the items within the car.

Defense counsel moved for a mistrial, while acknowledging the court was unlikely to grant it based on a single incident. In denying the motion, the court noted the error was cured by a timely objection and the court's ruling admonishing the jury. The court concluded defendant was not deprived of a fair trial but indicated it would revisit the issue if there were additional instances where excluded testimony made its way to the jury.

Second Motion for Mistrial

When the prosecution called Detective Conroy, its narcotics expert, as a witness, the first question he was asked was his occupation. He responded he was "a gang detective for the City of Placentia." Defense counsel immediately objected. The court struck the response and admonished the jury to disregard it. The court further told the jury: "I think both parties will stipulate that the witness's current assignment is in the gang unit; however, the facts and circumstances of our case have nothing whatsoever to do with any alleged gang activity. That's simply his current assignment." Both parties so stipulated.

During a subsequent sidebar, defense counsel moved for a mistrial based on Conroy's testimony that he was a gang detective. When asked to explain this violation of the court's in limine rulings, the prosecutor indicated he had intended to leave a message for the detective informing him of the court's ruling but neglected to do so. The prosecutor asserted the violation was not intentional but was "an accidental slip" that was cured by the stipulation.

The court expressed its displeasure that this was the second time one of its pretrial rulings had been violated and testimony the court had ruled inadmissible was presented to the jury. Addressing defendant's motion for a mistrial, the court noted it promptly sustained defendant's objection, admonished the jury to disregard the answer, and gave an "ad lib curative instruction with reference to this not being a gang case and there not being any gang allegations" that "may have been sufficient to cure the defect." The court stated it was "going to conditionally deny the request for a mistrial" but would "cogitate on it a little bit more and see how the rest of the evidence comes out." The court did not revisit the issue later.

Third Motion for Mistrial

Defendant's third mistrial motion was made after the prosecutor's closing argument. Defendant moved for a mistrial on the ground that throughout his closing argument, the prosecutor stated the notebook, gray bag, cash, and baggies were found in the large purse. Defendant asserted the prosecutor's argument was improper because the court had excluded any testimony as to where these items were found within the car. The court indicated it understood the prosecutor's argument to be that it is reasonable to infer these items were found in the purse. The court denied the mistrial motion, concluding the prosecutor's argument was proper and that both parties could argue reasonable inferences as to where the various items were found within the car.

Court Did Not Abuse its Discretion by Denying Defendant's Mistrial Motions

Defendant contends the court should have granted her first two mistrial motions because the prosecutor's failure to admonish Fillers and Conroy regarding evidence excluded by the court resulted in the jury hearing inadmissible and prejudicial evidence. We conclude the court did not abuse its discretion. As to Fillers' testimony that Uceda found the cash inside the gray bag and told him such, the court immediately struck the testimony and admonished the jury to disregard the answer in its entirety. Similarly, when Conroy testified that he was a "gang detective," the court immediately struck the response and admonished the jury to disregard the answer. The court even went a step further and told the jury that this was simply Conroy's current assignment and that defendant's case had "nothing whatsoever to do with any alleged gang activity." "[T]he court firmly instructed the jury to disregard the testimony, and we presume the jury did so." (People v. Melendez (2016) 2 Cal.5th 1, 33.)

Defendant asserts "no admonition could cure the harm" once the jury heard the inadmissible testimony. We disagree. Both slip-ups were brief and well- handled by the court. In both instances, the court quickly struck the offending testimony and admonished the jury to disregard it. The brief references to the excluded evidence were not so prejudicial as to irreparably damage defendant's chance of a fair trial. "[T]he court could reasonably conclude that any potential for prejudice was so minimal that it was cured by the admonition and a mistrial should not be granted." (People v. Hayes (1999) 21 Cal.4th 1211, 1264.) We conclude the court did not abuse its discretion in denying defendant's first two motions for mistrial.

We reach the same conclusion as to defendant's third mistrial motion. Defendant contends the court should have granted this mistrial motion because the prosecutor committed misconduct by repeatedly referring to facts not in evidence during his closing argument. Defendant points to statements by the prosecutor that the baggies, notebook, cash, and gray bag were in defendant's purse and contends these were improper references to facts not in evidence because the court had excluded any testimony as to where these items were found.

It is improper for a prosecutor to "suggest the existence of '"facts"' outside of the record by arguing matters not in evidence." (People v. Woods (2006) 146 Cal.App.4th 106, 113.) However, "[a] prosecutor may fairly comment on and argue any reasonable inferences from the evidence." (Id. at p. 112.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno (2014) 60 Cal.4th 659, 667.) Here, when we review the prosecutor's comments in the context of his whole argument and the court's instructions to the jury, we conclude there was no reasonable likelihood the jury understood the prosecutor to have been referring to facts not in evidence.

In a segment of his closing argument discussing the evidence found during the search of the car, the prosecutor made two statements defendant contends were improper references to facts not in evidence: (1) "You also have the two baggies that were in her purse." and (2) "Now, the black notebook, the pay/owe notebook, that has her name on it, and that also fits in the purse, and it was also recovered at the same time that Detective Uceda put the purse on the trunk of the car." As the prosecutor continued with this portion of his closing argument, he stated that the two baggies, cash, and black notebook "are all things that would have logically been in the purse." He explained the nature and size of the items lead to this conclusion, asserting: "The fact that there is cash and small items, a pay/owe sheet that has financial records, . . . that's something that you keep secure like you would with cash in a purse." The prosecutor then argued: "You could also tell that she had these things in her purse by the way that they were seized when you had Detective Fillers tell you that Detective Uceda put a purse on the trunk of the car along with all these other items that were in proximity to that. So you can make an inference that those items were from the purse." The prosecutor gave the jury reasons to infer the items were found in defendant's purse, based on the admitted evidence. Viewing the complained-of statements in the context of the prosecutor's closing argument as a whole, we agree with the trial court that the prosecutor was permissibly arguing reasonable inferences from the admitted evidence.

To provide a more complete context, we quote this part of the prosecutor's argument at length. Discussing the evidence found in the car, the prosecutor argued: "You also have the two baggies that were in her purse. These are the baggies that Detective Fillers testified that he saw Detective Uceda recover when he was doing the car search. And at the same time he was doing that car search he saw Detective Uceda put a purse, a large woman's purse, on the trunk, the gray bag, and he saw him with two baggies, as well as the cash and some of the other evidence."
Defense counsel objected on the ground the prosecutor was misstating the testimony. The court overruled the objection and referred the jurors to its prior admonition to make their decision based on what they find the evidence to be and to disregard the argument of counsel if "they assert as a fact" something that is not proven in the case.
The prosecutor continued his argument: "The other evidence that shows that this defendant was in control of the meth and involved in methamphetamine sales is the possession of the cash, of the cash proceeds of methamphetamine sales, as well as the pay/owe sheet. Once again, all these things were seized at the exact same time that Detective Uceda had that woman's purse on the trunk of the car. Think about that, why else would he have taken that purse if he wasn't retrieving stuff, pieces of evidence, from the purse? [¶] And it makes sense. Cash would logically be kept in a purse. . . . [¶] And you saw the picture of the stack of currency in this case. Officer Fillers said it was about that thick. It was too thick to put in a wallet and it wasn't found in any wallet. There was no other container found where that cash could have come from. That cash came from the purse. [¶] Now, the black notebook, the pay/owe notebook, that has her name on it, and that also fits in the purse, and it was also recovered at the same time that Detective Uceda put the purse on the trunk of the car." "You have got a gray bag here, you have a stack of cash, the two baggies, and the black notebook. All of those things would logically have been in that bag. Why else would Detective Uceda have recovered that bag"
Defense counsel objected on the ground of improper argument. After an offtherecord sidebar, the prosecutor continued: "Once again, ladies and gentlemen, what I was saying is these are all things that would have logically been in the purse. And the way you can get that is, number one, from the nature of these items. The fact that there is cash and small items, a pay/owe sheet that has financial records, . . . that's something that you keep secure like you would with cash in a purse. [¶] Number two, you could also tell that she had these things in her purse by the way that they were seized when you had Officer Fillers tell you that Officer Uceda put a purse on the trunk of the car along with all these other items that were in proximity to that. So you can make an inference that those items were from the purse."

Defendant contends the prosecutor also committed misconduct later in his closing argument by making additional assertions that the two baggies were in her purse. In this portion of his argument, the prosecutor was discussing evidence of "packaging" that he contended proved defendant possessed the methamphetamine for the purpose of sale. Recounting the five baggies recovered and where they were recovered, the prosecutor asserted "there was the two by the purse that I would submit to you was [sic] inside the purse." Continuing his discussion of where each baggie was found, the prosecutor stated: "And then, of course, there's the two here that were recovered along with the purse." No reasonable juror would have understood the prosecutor's argument, in context, to be referring to facts not in evidence. Instead, the context of the prosecutor's argument shows he was arguing a reasonable inference from the evidence presented. The prosecutor's argument that the baggies were in defendant's purse was based on the evidence at trial that Uceda searched defendant's purse as part of his search of the car and found two small baggies during his search.

The next complained-of statement occurred during part of the prosecutor's argument that defendant was guilty of transportation of methamphetamine for sale. The prosecutor asserted defendant "had the proceeds of sale in her purse" and that the presence of the cash showed they had recently sold methamphetamine. Defendant contends the prosecutor's statement that the sale proceeds were in her purse referred to facts not in evidence and therefore constituted misconduct. Again, we disagree. This was yet another example of the prosecutor arguing an inference from the evidence at trial. The prosecutor had earlier argued that "[c]ash would logically be kept in a purse." The prosecutor did not stray outside the bounds of proper argument by arguing the cash was in defendant's purse.

Defendant also complains about similar statements the prosecutor made in his rebuttal argument that the cash and baggies were in her purse. Because defendant's third mistrial motion was made before these statements in the prosecutor's rebuttal argument, the court did not consider them when ruling on the motion. Similarly, we do not consider them when analyzing whether the court abused its discretion by denying defendant's mistrial motion.

We conclude the prosecutor's assertions that the baggies, notebook, and cash were in defendant's purse were fair inferences of the admitted evidence and not misstatements of fact. Moreover, the court's instructions clearly informed the jurors that it was up to them to decide the facts in the case based on the evidence presented (CALCRIM No. 200) and not the arguments of counsel (CALCRIM No. 222). During the prosecution's closing argument, in response to an objection by the defense that the prosecutor had misstated the testimony, the court reminded the jurors of its previous instruction and stated "with respect to the arguments of the attorneys, if you find that something they assert as a fact is not proven in the case or isn't true, you would, of course, disregard the argument and then make your decision based on what you find the evidence in the case to be." "We presume the jury followed the court's instructions." (People v. Avila, supra, 38 Cal.4th at p. 574.) Based on the circumstances before the court at the time it considered defendant's mistrial motion, the court could reasonably conclude defendant's right to a fair trial had not been "'"'irreparably damaged'"'" (id. at p. 573) and that the motion should be denied. The court did not abuse its discretion. NO CUMULATIVE ERROR

Having concluded the court did not abuse its discretion by admitting evidence over defendant's chain of custody objection and the court did not abuse its discretion by denying defendant's three mistrial motions, we also reject her contention that the cumulative effect of these errors compels reversal.

DISPOSITION

The judgment is affirmed.

IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.


Summaries of

People v. Martinez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Aug 26, 2020
G057460 (Cal. Ct. App. Aug. 26, 2020)
Case details for

People v. Martinez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOANA MARTINEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Aug 26, 2020

Citations

G057460 (Cal. Ct. App. Aug. 26, 2020)