Opinion
B226541
09-27-2011
THE PEOPLE, Plaintiff and Respondent, v. YOLANDA MORFIN, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA326319)
APPEAL from a judgment of the Superior Court of Los Angeles County, Beverly Reid O'Connell, Judge. Affirmed.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Yolanda Morfin (Yolanda) was tried before a jury with her husband, Jose Morfin (Jose), each of whom had been charged with possessing a controlled substance for sale. At their joint trial, evidence was admitted of Jose's prior drug conviction, but no limiting instruction was given that the evidence could be used only against Jose. Yolanda now contends that admission of the evidence violated her due process rights. She also contends that her due process rights were violated because she was precluded from introducing evidence in her defense. We disagree that any prejudicial error occurred, and we therefore affirm the judgment.
Because parties share a last name, we refer to Yolanda and her husband, Jose, by their first names to avoid confusion.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution case.
Detective Patrick Olivier, a narcotics officer, had worked in the area of Boyle and 1st Streets for about a year. Powder cocaine was the narcotic primarily sold in the area, with half a gram selling for $20 and a 10th of a gram for $10. Having received information about narcotics activity involving Jose, Detective Olivier, Detective Rafael Acosta, and other officers conducted an undercover surveillance of buildings at the intersection of Boyle and Pleasant on July 19, 2007.
From an unmarked car parked about 20 to 25 yards from Jose and Yolanda, Detective Acosta watched them, primarily viewing them through his rear and side view mirrors and by turning his body. Detective Acosta, who had patrolled the area since 2001, had seen Jose 50 to 100 times before. Jose and Yolanda were at 1634 Pleasant, where a gray tarp had been set up to create a shaded area. Jose was not using a cane or any walking device to assist him. David Morfin (their son) and Uriel Salas joined Jose and Yolanda. While it was still light outside, Yolanda went beneath the tarp, where she counted "a large amount" of money and put it in a paper bag. While Yolanda counted money, Jose talked on a cell phone. About an hour later, around 7:00 p.m., Jose took the paper bag from Yolanda and walked to a car that had pulled up nearby. Jose got into the back of the car and soon handed a white sandwich baggie containing a substance resembling cocaine to Yolanda, who then walked back to the tarp area. Jose joined her, and she handed the baggie back to him.
Detective Acosta told his fellow detectives to detain Jose, Yolanda, David, and Salas. When Yolanda saw the detectives, she yelled, "police" or "policia." Salas ran, and Jose, still holding the baggie, also ran, pursued by Detective Olivier. The detective lost sight of Jose, but Olivier saw a baggie containing a white substance resembling cocaine thrown over a fence and land in a parking lot. Video from surveillance cameras showed Olivier pursuing a man he identified as Jose, who eluded Olivier by going into a building and then climbing over a fence. Jose was not arrested until a week later.
The cocaine recovered from the parking lot weighed about 96.96 grams and had a value of $2,000 to $3,000, although it would be worth more divided into single sale portions. Additional cocaine was found in the trunk of a red car in the same parking lot. Detectives recovered $539 from Yolanda's pockets and $493 from her purse. But no packaging materials, pay-owe sheets, scales or aluminum foil that might be used to make a substance were found in the Morfins' apartments. Based on the amount of cocaine bought, the area in which the incident occurred, and the presence of Salas and David as lookouts, Yolanda and Jose possessed the cocaine for sale, in Detective Acosta's opinion.
On the day he was arrested, July 25, 2007, Jose was not in a wheelchair or otherwise using any device such as a cane to walk. Video of Jose taken in his apartment building show him walking unassisted. Detective Acosta had met Jose before, in 2001, and at that time, Jose was not in a wheelchair and he appeared to have no problem walking. Detective Daniel Hanabusa, who was part of a team that detained Jose in 2002, saw Jose in that area approximately 12 times from August 28, 2002 to July 19, 2007. Hanabusa also never saw Jose used a cane during that time. Detectives Hanabusa and Fabiola Ledesma were part of an investigation in August 2002 at the area of Boyle and Pleasant. Detectives gave an informant prerecorded money to buy powder cocaine, which he bought from Jose. Jose was detained, holding the prerecorded money.
B. Defense case.
Yolanda testified that around 7:00 p.m. that night, she was talking to Sidronia Alvarado, who lived in the building next door, when a man with a ponytail (one of the detectives had a ponytail) grabbed and pushed her and ran to the rear. She denied having any drugs. The money she had was borrowed from her sister. Her husband uses a cane and hasn't run or walked fast for the last 10 years; in fact, he hasn't been able to drive a car as late as March 2010 because of his back problems.
Sidronia Alvarado, who lived next door to the Morfins for at least 10 years, was coming from the Laundromat when she saw Yolanda sweeping. A man with a ponytail ran toward Yolanda, and Alvardo told her to call the police. Jose had used a cane for "a long time," and he walks slowly.
Nelson Dal Cin had been, since April 2007, the assistant property manager at the Boyle Hotel where the Morfins lived. During that time, Dal Cin never saw Jose without a cane or run and walk fast. The man in videos from cameras in the apartment building identified by detectives as Jose was not Jose.
C. Prosecution's rebuttal case.
Evangeline Ordaz worked for the company that owned the apartment building where the Morfins lived. From January 2007 to October 2009, she saw Jose five to ten times, and he was never using a cane. In 2008, she saw him at a courthouse holding, but not using, a cane outside the courtroom; but once Jose entered the courtroom he had a limp.
Detective Patrick Olivier videotaped Jose driving on March 12, 2010.
II. Procedural background.
After a first jury hung, a second jury, on May 7, 2010, found Yolanda guilty of possession of a controlled substance for sale (Health & Saf. Code, § 11351). On May 26, 2010, the trial court suspended imposition of sentence and placed Yolanda on three years' felony probation.
The jury found Jose guilty of the same offense. The trial court sentenced him to three years in prison.
DISCUSSION
III. Any error admitting evidence of Jose's prior drug conviction was harmless.
The trial court admitted evidence that Jose, in 2002, sold cocaine. Yolanda contends that admission of the evidence violated her due process rights because the jury, which was not given a limiting instruction, could have considered this evidence against her. We agree that the evidence was not admissible against Yolanda but disagree its admission was reversible error.
Evidence Code section 1101, subdivision (a), prohibits the admission of other crimes evidence for the purpose of showing the defendant's bad character or criminal propensity. Other crimes evidence, however, is admissible against a defendant " 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.' " (People v. Catlin (2001) 26 Cal.4th 81, 145; see also Evid. Code, § 1101, subd. (b).) Like other circumstantial evidence, its admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion. (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) For evidence of uncharged crimes to be admissible under Evidence Code section 1101, subdivision (b), to prove such facts as identity, common design or plan, motive, or intent, the charged and uncharged misconduct must be sufficiently similar to support a rational inference of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
Even if other crimes evidence is admissible under Evidence Code section 1101, subdivision (b), it may be excludable under Evidence Code section 352 if its probative value was substantially outweighed by the probability its admission would cause undue prejudice. (People v. Ewoldt, supra, 7 Cal.4th at p. 404 ["Evidence of uncharged offenses 'is so prejudicial that its admission requires extremely careful analysis' "].) A trial court has broad discretion in determining whether evidence is relevant and whether Evidence Code section 352 precludes its admission. (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167; People v. Thornton (2007) 41 Cal.4th 391, 444.) We therefore review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) And even where a trial court renders an erroneous evidentiary ruling, a defendant's due process rights are usually not violated. (Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 [such due process claims, usually citing Chambers v. Mississippi (1973) 410 U.S. 284, are often overbroad, as Chambers was a fact intensive, specific case].)
"In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 607; see also People v. Pijal (1973) 33 Cal.App.3d 682, 687, 691 [evidence of prior drug offenses is admissible to show the defendant's "guilty knowledge"].)
Here, the trial court admitted evidence that in 2002 Jose sold powder cocaine to an undercover informant, and Jose was caught with prerecorded buy money. We will assume that, under the above authority, the trial court did not abuse its discretion by admitting the evidence against Jose, and proceed directly to the more pertinent question whether it was admissible against Yolanda. Yolanda's trial counsel objected, arguing that there was a "spillover" effect and the prosecutor might argue that Yolanda was "guilty by association." The objection was well-taken. There was no evidence Yolanda participated in that prior act. To the extent the evidence was admitted to establish Jose's intent to sell drugs and knowledge of its narcotic nature, it was irrelevant to establishing Yolanda's intent and knowledge.
The trial court, perhaps in recognition of this, twice said it would consider a specific limiting instruction. Defense counsel, however, did not thereafter request a limiting instruction, and the court, having asked for one from the defense, had no sua sponte duty to give one. (People v. Freeman (1994) 8 Cal.4th 450, 495.) Although the issue has been forfeited on appeal, Yolanda alternatively argues that her trial counsel provided ineffective assistance of counsel, either by failing to object to the evidence or by failing to pursue the limiting instruction. "A meritorious claim of constitutionally ineffective assistance must establish both: '(1) that counsel's representation fell below an objective standard of reasonableness; and (2) . . . there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.' " (People v. Holt (1997) 15 Cal.4th 619, 703, italics omitted; People v. Lopez (2008) 42 Cal.4th 960, 966.) "Strickland v. Washington (1984) 466 U.S. 668, 697, informs us that 'there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Cox (2003) 30 Cal.4th 974, 1019-1020.) To show ineffective assistance of counsel, the appellant must show that he or she " 'suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]' " (People v. Gray (2005) 37 Cal.4th 168, 207; see also People v. Bolin (1998) 18 Cal.4th 297, 333.)
The jury was instructed: "The People presented evidence that the defendant Jose Morfin committed another offense that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the offense, . . . you may, but are not required to consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to sell cocaine in this case; or [¶] The defendant had a motive to commit the offenses alleged in this case; or [¶] The defendant knew the substance was cocaine when he allegedly acted in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. [¶] Do not consider this evidence for any other purpose except with the limited purpose of knowledge, intent and motive. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty. The People must still prove every charge beyond a reasonable doubt."
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There is not a reasonable probability the outcome here would have been different as to Yolanda had the evidence been excluded or limited. First, the evidence against Yolanda was quite strong. Detective Acosta saw her count out money, put the money in a bag, and hand it to Jose, who then used it to buy powder cocaine. After buying the cocaine, which was in a clear baggie, Jose gave it to Yolanda. She carried the bag back to the tarped area and gave it to Jose. When officers approached, she yelled, "police," and Jose and Salas ran. A large amount of powder cocaine was thrown over a fence into a parking lot located in the same general area where a detective had been pursuing Jose. Yolanda also had a large amount of money on her person (almost $500) and almost another $500 in her purse.
Second, although the instruction was not expressly limited to Jose, the prosecutor, in his closing statement, repeatedly said it was limited to him. The prosecutor said: "[Detective Hanabusa] knew the defendant, Jose Morfin, from a prior incident in 2002. This is very specific here. Remember this prior conduct you can only use to determine Jose Morfin's intent. Okay. Based on his conduct, you can infer whether the defendant did have the specific intent to sell cocaine when he possessed the cocaine on our case. That's the only way you can use this. Do you understand? [¶] What Detective Hanabusa knows is that the defendant, Jose Morfin, was in possession of prerecorded buy money that was previously held by the undercover person, and there's a $20 dollar bill, recorded money, in [d]efendant Morfin's hand." (Italics added.) The prosecutor later twice repeated that the jury could only use the prior incident against Jose to determine specific intent. Although "argument is not evidence and the jury must limit its determination to the law as stated by the court," courts can, as part of their harmless error analysis, "review counsel's arguments to determine if counsel clarified or exacerbated a potentially confusing instruction." (People v. Jaspar (2002) 98 Cal.App.4th 99, 111.)
We therefore conclude that this argument, coupled with the evidence, shows that the error was harmless.
IV. The trial court did not violate Yolanda's due process rights by excluding defense evidence.
Yolanda next contends that the trial court precluded her from exploring three areas, thereby violating her due process right to present a defense. Her due process rights were not violated.
Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. (People v. Riggs (2008) 44 Cal.4th 248, 290.) A trial court has broad discretion to exclude impeachment evidence under Evidence Code section 352 and " '[t]he statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.' [Citation.]" (People v. Hamilton (2009) 45 Cal.4th 863, 946, quoting People v. Wheeler (1992) 4 Cal.4th 284, 296; see also People v. Harris (2008) 43 Cal.4th 1269, 1291.) In reviewing an assessment made by a trial court under Evidence Code section 352, we shall not disturb the ruling on appeal absent a finding that the trial court abused its discretion. (People v. Robinson (2005) 37 Cal.4th 592, 625.) A ruling excluding evidence under Evidence Code section 352 will be overturned on appeal only if the trial court " 'exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination. (People v. Brown (2003) 31 Cal.4th 518, 545.)
Here, the first area Yolanda was precluded from exploring was that Jose pleaded guilty in 2002 or 2003 to mere possession of a controlled substance, not to possession for sale. The trial court, however, did not abuse its discretion by limiting this line of questioning. Even if the jury, after hearing evidence of Jose's prior possession, was left with the impression that he had previously sold cocaine, the proposed evidence that he pleaded guilty merely to possession of cocaine was not necessarily probative of his intent in connection with the prior conviction. There could have been many reasons why Jose pleaded guilty to the lesser, and the trial court, in its discretion, could have concluded that the issue was speculative and tangential.
The second area Yolanda claims she was precluded from exploring was Jose's physical condition: Did he need a wheelchair or cane to walk at the time of the incident? If he did, then that would undercut the prosecution's evidence that it was Jose who fled from detectives. To establish that Jose was unable to walk unassisted, defense counsel thus asked Yolanda how many surgeries Jose had since their marriage in 2002 and whether he was taking medication for pain. The trial court sustained relevance objections to both questions. Defense counsel then rephrased the questions to focus on July 2007, when the underlying crime occurred. Yolanda testified that Jose was in physical discomfort when he moved, but the trial court sustained a relevance objection to a question whether she was present in May 2007 at a medical procedure Jose had on his back.
Even if we assume that the trial court incorrectly sustained the objection, we disagree that the "defense was severely hampered in its ability to present its case" that it couldn't have been Jose who ran from the police that day. In fact, the defense explored this issue in depth. Yolanda, Alvarez (the neighbor), and Dal Cin (the assistant property manager), all testified that Jose used a cane and could neither run nor walk fast. Further testimony from Yolanda that Jose had a medical procedure on his back in May 2007 would have added little to this evidence.
Finally, Yolanda argues that she was precluded from introducing evidence that David and Salas were not charged in connection with this incident. That is not quite what happened. On direct examination, Detective Acosta testified that David and Salas were arrested. Before beginning cross-examination, Yolanda's defense counsel asked if he could elicit that they were never charged. The court said counsel couldn't ask if they were charged, but it would allow defense counsel to ask detectives if they knew whether they were released: "[i]f he doesn't know, he doesn't know, and that is the [end of the] inquiry." The court added that anything further would lead to a mini-trial on a marginally relevant issue and constitute an undue consumption of time under Evidence Code section 352. Detective Acosta then testified that David and Salas were arrested and booked, but he didn't know if they were thereafter released.
The trial court therefore did not preclude defense counsel from establishing that David and Salas were released; counsel was allowed to ask the question, but the witness didn't know the answer. Moreover, the trial court acted well within its discretion to limit this line of questioning. As the court said, the detectives were not responsible for charging or not charging David and Salas and there could have been many reasons for the prosecutor's decision. Therefore, the issue was marginally relevant and exploring it could have, in the judge's discretion, constituted an undue consumption of time.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.