Opinion
G051313
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD SANTOS NAUTA, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14WF2149) OPINION Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The prosecution charged defendant Richard Santos Nauta with one count of possessing a controlled substance for sale (Health & Saf. Code, § 11378) after police found bags containing various quantities of methamphetamine in his motel room and he admitted that he was selling the drugs. The trial court denied a pretrial motion to suppress evidence (Pen. Code, § 1538.5) and subsequently a jury found defendant guilty as charged. In a bifurcated hearing the trial court found true enhancement allegations based on defendant's prior conviction for the same offense (Health & Saf. Code, § 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b)), and sentenced him to four years and four months in county jail.
Defendant challenges his conviction on two grounds. First, he attacks the trial court's ruling on the pretrial suppression motion. Defendant argues there was conflicting evidence on whether he consented to the officers' entry of his motel room, and the court erroneously barred the defense from cross-examining the testifying officer about that officer's use of force in a subsequent incident. Second, defendant claims the prosecutor committed misconduct at trial by falsely asserting during closing argument that defendant's statements to the police were recorded. Finding no error, we affirm the judgment of conviction.
DISCUSSION
1. The Denial of the Motion to Suppress Evidence
a. Background
At the hearing on the motion to suppress evidence, Officer D.C. testified that he and Officer K.D. went to a motel in response to information one of the occupants possessed narcotics. They knocked on the door of a room and identified themselves as police officers. D.C. described the door knock as "a normal 2 to 3 knocks," and that the officers used a conversational tone of voice to announce their status.
To protect the confidentiality of this police officer's personnel records, we refer to both officers by their initials
After several seconds, defendant opened the door. D.C. testified that he asked defendant if he and K.D. could enter the room and defendant replied "yes." D.C. denied the officers threatened defendant, made any promises to him, displayed weapons, or otherwise forced or demanded entry into the room.
Once inside, D.C. saw a woman sitting on the bed. D.C. testified that because of prior police contacts with her, he knew she was currently on probation and possibly involved in narcotics trafficking.
He also observed a cigarette package on the bed. Sticking out of the package was a plastic bag containing a white crystalline substance. Based on his prior training and experience, D.C. recognized the plastic bag's contents as methamphetamine. D.C. seized the cigarette package, pulled out the bag and saw that the cigarette package contained additional bags of what appeared to be methamphetamine. The officers placed both defendant and the woman under arrest.
On cross-examination, the defense sought to question D.C. about an incident that occurred approximately five months after defendant's arrest. Because this information was obtained through discovery of D.C.'s confidential personnel records little detail concerning the incident was disclosed. Comments made on the record indicated the subsequent incident involved an alleged use of force to obtain a blood sample from a person arrested for driving while under the influence and a supervisor's purported admonishment of D.C. over his description of the incident in a police report.
Defense counsel argued this "line of questioning" would establish D.C. "is unaware of the difference between consent and force in order to obtain consent" and that D.C. had been dishonest in preparing police reports. The prosecutor objected on the ground the subsequent incident was "irrelevant to whether there was consent to enter" defendant's motel room. The trial court excluded further inquiry on the postarrest incident, but noted that "[i]f, for some reason . . . during . . . the rest of this hearing, . . . there is evidence . . . that would question [D.C.'s] aggressiveness or any consent or anything of that nature, then I'll certainly entertain [defense counsel's] motion again . . . . [¶] But at least up to this point, barring this court hearing any other additional information, there doesn't appear to be any information that has been elicited so far that would find, based on the offer of proof, that that inquiry would be relevant."
During recross-examination, defense counsel asked D.C., "When you obtained consent to enter the room, you told . . . [defendant] . . . that you and officer [K.D.] were going to enter; correct?" D.C. replied, "Yes."
At the end of the hearing, the trial court found defendant validly consented to the officers' entry into the motel room and denied the motion to suppress.
b. Analysis
Defendant argues that since the seizure of the methamphetamine resulted from a warrantless entry of his motel room based on consent, the prosecution bore the burden of showing he freely and voluntarily consented to the officers' entry. He claims the evidence fails to support a finding of valid consent. Further, asserting D.C. gave conflicting testimony on the manner in which the officers obtained consent to enter the motel room, defendant claims the evidence concerning D.C.'s conduct in the postarrest incident was relevant to the issue of his credibility.
These contentions lack merit. "To protect his right to object to an unreasonable search or seizure a defendant need not forcibly resist an officer's assertion of authority to enter his home or search it or his person [citations], but if he freely consents to an entry or search, or voluntarily produces evidence against himself, his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable." (People v. Michael (1955) 45 Cal.2d 751, 753.) The prosecution has the burden of showing the police were given free and voluntary consent to make an entry or conduct a search, and this task "cannot be discharged by showing no more than acquiescence to a claim of lawful authority." (Bumper v. State of North Carolina (1968) 391 U.S. 543, 548-549.)
"Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances." (People v. Michael, supra, 45 Cal.2d at p. 753; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [same].) "In reviewing the trial court's suppression ruling, we defer to its factual findings if supported by substantial evidence," but "independently assess the legal question of whether the challenged search or seizure satisfies the Fourth Amendment. [Citation.]" (People v. Brown (2015) 61 Cal.4th 968, 975.)
The evidence supports a conclusion defendant freely and voluntarily consented to the officers' entry into his motel room. D.C. testified the officers knocked on the door in a normal manner, announced their status in a conversational tone of voice and, after defendant opened the door, asked him if they could come in. In response, defendant said, "Yes." D.C. denied using force to open the door or placing his foot across the threshold to preclude defendant from shutting it. Nor was there any evidence the police verbally or physically asserted a claim of authority to enter the room. As the trial court found, once inside the room D.C. saw the contraband in plain view.
Defendant relies on D.C.'s response to the question asked on recross-examination to argue he merely assented to the entry in response to the officers' claim of authority. However, this argument ignores the question's ambiguous introductory phrase, "[w]hen you obtained consent to enter the room." If the officers merely declared they were coming in after defendant said they could do so, that would not vitiate defendant's prior voluntary consent to their entry. The trial court's questioning of defense counsel on his interpretation of the sequence of events reflects it impliedly concluded the officers received permission to enter the motel room before declaring their intent to do so.
In addition, defendant claims the officers immediately ordered both defendant and his female visitor to sit on chairs in the room. The evidence does not fully support this claim. While K.D. apparently did tell defendant to sit in a chair once the officers entered the room, the officers did not order his visitor to move until D.C. saw the contraband. Furthermore, there is no indication D.C. conducted an intrusive search of the premises before he saw the bag of methamphetamine sticking out of the cigarette package.
The primary basis for defendant's attack on the suppression ruling is that the trial court erred by precluding the defense from questioning D.C. about the subsequent incident wherein he allegedly used force to obtain an arrestee's blood sample and purportedly failed to accurately summarize the withdrawal in a report.
The law concerning this issue was recently summarized in People v. Contreras (2013) 58 Cal.4th 123: "To be relevant, evidence must have some 'tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.) This definition includes evidence 'relevant to the credibility of a witness.' [Citations.] [¶] Conversely, a matter is 'collateral' if it has no logical bearing on any material, disputed issue. [Citation.] A fact may bear on the credibility of a witness and still be collateral to the case. [Citations.] [¶] Of course, the trial court has wide latitude under state law to exclude evidence offered for impeachment that is collateral and has no relevance to the action. [Citations.] [¶] . . . This exercise of discretion necessarily encompasses a determination that the probative value of such evidence is 'substantially outweighed' by its prejudicial, 'confusing,' or time-consuming nature. [Citations.] [¶] Also, as long as the excluded evidence would not have produced a '"'significantly different impression'"' of the witness's credibility, the confrontation clause and related constitutional guarantees do not limit the trial court's discretion in this regard. [Citations.]" (Id. at p. 152; People v. Rodriguez (1999) 20 Cal.4th 1, 10, fn. omitted [witness testified he saw murder committed while on apartment building roof; no abuse of discretion "in excluding the proffered impeachment testimony by the female apartment manager . . . that she had not granted [witness] permission to use the roof" because the manager's claim "had little, if any, tendency in reason to prove that [witness] in fact had not gone on the roof and, hence, that he testified untruthfully"].)
At the suppression hearing, the defense argued cross-examination of D.C. about the subsequent incident would show he "is unaware of the difference between consent and force in order to obtain consent based on his prior lies within his police reports and his prior dishonesty and inability to distinguish between consensual and nonconsensual encounters." But there was no claim the officers forcibly entered the motel room. Nor is there a claim D.C. drafted a false report of the arrest. Rather, the defense claimed defendant merely acquiesced to the officers' entry in response to their assertion of authority to do so. The trial court ruled that, absent further evidence indicating D.C. acted aggressively in seeking defendant's consent to enter the motel room, cross-examination on the subsequent incident was irrelevant.
On appeal, defendant again cites D.C.'s response to the question on recross-examination where D.C. purportedly admitted telling defendant that he and K.D. intended to enter the motel room.
This argument is unavailing. First, this response was not obtained until after the trial court ruled on the relevancy of the subsequent incident. That ruling was tentative in nature, and the court expressed a willingness to reconsider the issue "if there is evidence put into play that would question that aggressiveness or any consent . . . ." Defense counsel did not argue this statement suggested the police displayed an aggressive attitude or ask the trial court to reconsider its prior decision concerning the relevancy of the subsequent incident.
Second, as noted the phrasing of defense counsel's question was ambiguous. It began with the phrase, "When you obtained consent to enter the room." And the trial court's ruling on the motion reflects it rejected defendant's argument that D.C.'s affirmative response to this question meant his assent to entry was in response to the officers' declaration, "We're coming in." This evidentiary finding is binding on appeal.
Finally, we note that since the issue was raised during a pretrial suppression motion, defendant could have taken the stand and testified to a contrary set of facts without waiving his privilege against self-incrimination at trial on the issue of his guilt. (Simmons v. United States (1968) 390 U.S. 377, 394 ["when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection"]; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 368 [same].) Defendant chose not to take the stand to rebut D.C.'s testimony or present any other evidence that contradicted the officer's version of events.
Thus, we conclude the evidence presented at the suppression hearing supports the trial court's ruling. Further, "[a]s with all relevant evidence, . . . the trial court retains discretion to admit or exclude evidence offered for impeachment," and "[a] trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.) Defendant has failed to show the trial court's ruling on the relevancy of the subsequent incident constituted an abuse of its discretion. 2. Prosecutorial Misconduct
a. Background
K.D. was the sole witness at trial. He described his training and experience in identifying methamphetamine and whether possession of the drug is merely for personal use or for sale. When arrested, defendant had three bags of methamphetamine. Each bag contained a different quantity of the drug. One bag held a powder form of methamphetamine while the other two bags possessed the drug in its crystalline form. The officers arrested both defendant and his female visitor. After the woman was arrested, the officers discovered she had methamphetamine pipes and a syringe in her purse. K.D. concluded defendant possessed the methamphetamine for sale based on his admission the motel room was registered in his name, the amount of the substance he possessed, and the fact that he had three bags each containing different amounts of the drug.
At the police station, K.D. advised defendant of his Miranda rights and defendant agreed to speak with the officer. K.D. testified that during the interrogation, defendant admitted he sold the methamphetamine to obtain food and money.
Miranda v. Arizona (1966) 384 U.S. 436.
The interrogation was conducted in an interview room that only allowed for video recording. K.D. acknowledged that he did not take notes during the interrogation and only preserved defendant's responses in a police report he prepared about an hour later.
The trial court gave CALCRIM No. 358 on how to assess defendant's statements. The instruction's last sentence told the jury to "[c]onsider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded."
During closing argument, the prosecutor made the following comments on the nature of defendant's statements: "I can tell you I know the bulk of what [the defense] will tell you is th[e] statements aren't recorded, and therefore you can't rely upon them. [¶] . . . Where is the element that says the defendant's statements have to be recorded? . . . I also anticipate [defense counsel] will . . . show you a jury instruction that says you can consider the defendant's statements, his admissions, but it says at the end of that instruction consider with caution statements that are not written or otherwise recorded. [¶] I submit to you, ladies and gentlemen, the defendant's statement is recorded. Just because it's not audio recorded, it's not as if [K.D.] is coming here and testifying simply from memory about what happened . . . . He wrote a report immediately after he had that conversation with the defendant. . . . [¶] We as humans know that when something happens sometime ago and you are asked to recall that incident . . . over a period of time, [documenting the incident helps] it stick[] out. It stays fresh. [K.D.] recorded those statements in his report. [¶] To get up here and say, well, because those statements aren't audio recorded, it means you can't rely on [K.D.], and you can't find the defendant guilty is absurd."
During her closing argument defense counsel did emphasize the absence of an audio recording of the interrogation. After citing the last sentence of CALCRIM No. 358, defense counsel stated: "The People just argued there is a video recording. That is not it. This could have easily been audio recorded. We don't really know what [defendant] said. [K.D.] doesn't have a monopoly on the truth here. We know what he testified to. But when you think about what he testified to, and I am not calling [K.D.] a liar at all, but I am saying this was a very sloppy investigation and there were a lot of mistakes."
On rebuttal, the prosecutor responded to defense counsel's argument by emphasizing the consistency between the amount and packaging of the contraband seized by the officers and defendant's statements to K.D. "I submit to you . . . that the manner in which these baggies are divided up is exactly consistent with the defendant's statements to [K.D.]"
b. Analysis
Defendant contends the prosecutor's assertion that his statements to K.D. were "recorded" solely because K.D. documented them in his police report constituted misconduct that was exacerbated by the fact CALCRIM No. 358 fails to define what is meant by that term. While defendant acknowledges his trial counsel did not object to the prosecutor's claim, he alternatively claims her failure to do so amounts to ineffective assistance of counsel.
"'Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citation.] By contrast, our state law requires reversal when a prosecutor uses "deceptive or reprehensible methods to persuade either the court or the jury" [citation] and "'it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct"' [citation].'" (People v. Thomas (2012) 54 Cal.4th 908, 937.) "When a claim of misconduct is based on the prosecutor's comments before the jury . . . , '"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."'" (People v. Gonzales and Solis (2011) 52 Cal.4th 254, 305.)
As defendant concedes, his trial counsel's failure to object to the prosecutor's argument concerning the purported "recording" of his responses during the interrogation amounted to a forfeiture of his prosecutorial misconduct claim. (People v. Centeno (2014) 60 Cal.4th 659, 674.) But since "[a] defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel" (People v. Lopez (2008) 42 Cal.4th 960, 966), we shall proceed to resolve the issue on its merits. (People v. Rangel (2016) 62 Cal.4th 1192, 1219.)
"Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 823.) But in reviewing a prosecutorial misconduct claim, an appellate court must "consider the assertedly improper remarks in the context of the argument as a whole. [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 894.) Further, "arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law. . . . This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made." (Boyde v. California (1990) 494 U.S. 370, 384-385.) Finally, "'[i]n conducting [our] inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' [Citation.]" (People v. Covarrubias, supra, 1 Cal.5th at p. 894.)
To be sure, a prosecutor's bald assertion that the "otherwise recorded" exception to the requirement a defendant's statements be viewed with caution is satisfied by a police officer's post-interrogation report memorializing what the defendant said constitutes a misstatement of the law. As explained in People v. Gardner (1961) 195 Cal.App.2d 829, "the main reason for the rule is the inability of a person to repeat exactly the words of another person" because "it may be misapprehended by the person who hears it[,] . . . it may not be well remembered[, or] . . . it may not be correctly repeated." (Id. at p. 832.) Thus, we reject the Attorney General's claim K.D.'s documentation of defendant's statements in his police report shortly after the interrogation satisfied CALCRIM No. 358's "otherwise recorded" element.
But reviewing the prosecutor's entire argument, we conclude there is no reasonable likelihood the jury understood her to have made that claim. While clumsy, inartful and dangerous, the prosecutor's CALCRIM No. 358 argument must be viewed in context, and having considered the thrust of that argument in context we think it unlikely the jury was misled. The prosecutor began her closing argument acknowledging that while defendant was not a sophisticated seller, the evidence, both "outside of his statements" and "his admission" to K.D. supported a conviction.
After discussing defendant's right to a trial by jury, the prosecutor referred to the elements of the substantive charge and declared, "I . . . submit to you . . . that every single one of those elements has been met well beyond a reasonable doubt. I don't imagine defense counsel is going to get up here and contest any of these elements, except of course they want to tell you that [defendant] didn't possess it for sale."
Next the prosecutor addressed K.D.'s credibility, asserting his "testimony . . . in conjunction with what he told us about what the defendant told him . . . is of course what makes this case." The prosecutor queried, "Did [K.D.] appear as if he was lying? Did he have a motive out for the defendant?" To answer these questions, she referred to a discrepancy in the evidence over the calculation of the amount of methamphetamine in one of the bags seized from defendant's hotel room. K.D. had testified he determined it contained 2.7 grams of methamphetamine. However, the parties stipulated that the crime lab calculated the bag's contents weighed 3.4 grams. Acknowledging K.D.'s calculation was "a mistake," the prosecutor claimed his "under valu[ing of] the amount of methamphetamine" reflected that he was "honest" and "not out trying to get this defendant."
It was at this point that the prosecutor made the challenged statements quoted above. However, in context, it is clear she referred to the documentation of defendant's statements to bolster K.D.'s credibility, not to satisfy the "otherwise recorded" requirement. After her first reference to the statements as "recorded," the prosecutor noted "it's not as if [K.D.] is coming here and testifying simply from memory about what happened . . . . He wrote a report immediately after he had that conversation with the defendant." Immediately before the second reference to "recorded" statements, the prosecutor explained the purpose of a police report documenting a person's statement. "We as humans know that when something happens sometime ago and you are asked to recall that incident . . . over a period of time, [documenting the incident helps] it stick[] out. It stays fresh. [K.D.] recorded those statements in his report."
In addition, contrary to defendant's argument, the prosecutor's case for convicting him of possessing methamphetamine for sale relied on much more than K.D.'s testimony concerning defendant's statements. As the prosecutor noted in her closing argument, defendant did not appear to be under the influence when the officers contacted him. And she cited "the quantity and the packaging" of the methamphetamine defendant possessed. The parties stipulated defendant had over 4.4 grams of methamphetamine. K.D. testified the typical amount of methamphetamine a user would possess was "[a]bout .1 or .2 grams at the most."
Defendant claims K.D. admitted on cross-examination that he knew of methamphetamine users "possessing 4.0 grams for personal use." This assertion fails to accurately describe K.D.'s testimony. Rather, he responded, "Yes" to a question of whether he had "known users that . . . possessed less than 4 grams for personal use." Furthermore, K.D. testified possession of that amount was far more than the quantity possessed by the "typical" user. --------
Further, defendant held the drug in three separate bags of different quantities, two of which contained a crystalline form of the substance while the third bag contained a powder form of it. The prosecutor noted the defense "can argue that [K.D.] is not telling the truth. They can argue the statements aren't recorded, but at the end of the day, ladies and gentlemen, it just doesn't change the evidence. [K.D.] talked to us about the quantity and the packaging," and referred to the fact the woman who was visiting defendant when the police came to his motel room possessed drug paraphernalia that could be used to ingest methamphetamine.
Consequently, when considered in context, the prosecutor's comments concerning K.D.'s documentation of defendant's statements as being "recorded" did not amount to prosecutorial misconduct.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.