Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA 059271 Burt Pines, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Charles Nero was charged with and convicted of sales of a controlled substance. He was sentenced to the upper term of five years in prison, plus three years for a prior conviction of a similar crime, plus four years for four prior prison terms.
The evidence showed that appellant and a codefendant, Cynthia Dodd, helped a police undercover officer, Officer Bednarchik, purchase narcotics from another codefendant, Christopher Rodase, using a prerecorded $20 bill. Two other undercover officers, Officers Do and Eiman, were present at that time. All three of the officers observed from a distance that appellant spoke with Rodase, but Eiman was the only one who actually saw the drug transaction. After meeting with Eiman, appellant returned to Bednarchik and handed her a rock of cocaine.
Appellant was tried alone. He represented himself, under Farettav. California (1975) 422 U.S. 806 (Faretta). He contends that his constitutional rights to due process of law and to present a defense were violated because the trial court (1) excluded testimony from his investigator that would have shown that the photocopy of the prerecorded $20 bill was a fake and (2) limited cross-examination of Officer Eiman regarding Eiman’s memory of another undercover drug “buy” that day.
The record does not show the result of Rodase’s case. Prior to appellant’s trial, Dodd entered a plea to sale of a controlled substance.
We find no error, and affirm.
FACTS
1. Prosecution Evidence
Around 4:30 p.m. on June 1, 2007, Officers Bednarchik, Eiman and Do were part of an undercover “narcotic buy team” that was working in North Hills. Bednarchik saw appellant and Dodd walking toward a pawn shop. Appellant entered the shop first. Bednarchik asked Dodd if she knew where $20 worth of illegal drugs could be purchased. Dodd pointed to the southeast and then followed appellant into the shop. Bednarchik walked across the street. Dodd came out of the shop with appellant and yelled to Bednarchik, “Come on, he’s going to get it for you.”
Appellant and Dodd crossed the street. Dodd asked Officer Bednarchik if she still wanted to purchase narcotics. She said she did. Appellant told her to follow him. He, Bednarchik and Dodd started walking together. Appellant asked Bednarchik how much money she had and how much she wanted to buy. She answered that she wanted $20 worth of rock cocaine. Appellant asked to see the money. She gave appellant “one $20 bill of prerecorded buy money.” She had previously photocopied two $20 bills and a $10 bill onto a single page, to record the bills’ serial numbers. The bill she gave to appellant was in the middle. She put her name, her serial number, and the date on the photocopy, which was People’s exhibit No. 2 at the trial.
Appellant took the $20 bill from Officer Bednarchik and left, saying that he would be right back. He spoke to two men and entered an apartment complex. He returned to Bednarchik and Dodd and said there were no drugs at that location. He walked with them in another direction. Dodd stayed behind at a certain point because her legs were aching. Appellant continued walking with Bednarchik, assuring her that they would find drugs once he located a woman named Rosie.
Appellant finally saw Rosie. He told Officer Bednarchik to wait. He crossed the street, talked with Rosie, and walked with her into the courtyard of an apartment building. He stood near the codefendant Rodase, who was with several other people in the courtyard. Bednarchik could not see very well into the courtyard from her position across the street. Appellant soon walked back to her and handed her an off-white solid, which proved to be a usable quantity of cocaine base. She signaled the other officers, and appellant was arrested.
Rodase was also arrested, based on the observations of Officers Eiman and Do, who had followed Officer Bednarchik and appellant to that location. Detective Zamora was also in the area. Zamora recovered the prerecorded $20 bill from Rodase’s pocket, compared it with the photocopy, People’s exhibit No. 2, and wrote on the photocopy that he recovered the bill from Rodase.
Following appellant’s arrest, he confessed to Officer White that he obtained a rock of cocaine from Rodase and gave it to the person for whom he bought it.
Appellant also made a statement to an investigator from the public defender’s office. He said he agreed to buy $20 worth of illegal drugs for Officer Bednarchik, using Benardchik’s $20 bill. However, he denied that he actually bought any drugs, and insisted that the police did not recover either the $20 bill or any illegal drugs.
2. Defense Evidence
Called as a defense witness, Officer Bednarchik repeated much of the testimony she had given during the prosecution’s case.
Officer Do, who was called as a defense witness and not a prosecution witness, testified that he followed behind appellant and Officer Bednarchik as they walked through various streets. He then saw appellant talk briefly with Rodase in the courtyard. He did not see an actual exchange, as he was walking by at the time, and if he had stopped and stared, appellant and Rodase would have known they were under surveillance. He then saw appellant walk back to Bednarchik. He did not know if this incident was the first “buy” the undercover team made that day.
The supervisor of the property division testified that she had processed an order for toxicology analysis of evidence, and after items were tested by a criminalist, the part that was not tested was returned to the property division.
Appellant testified that Dodd told him she had a friend who wanted to get some illegal drugs. He agreed to talk to the friend. He went across the street with Dodd and talked with Officer Bednarchik. He told her he needed to see the money and wanted to know what he himself would “get out of it.” She said she wanted $20 worth of drugs and would pay him $10 for his help. She showed him a $20 bill and a $10 bill. He agreed to help her find drugs. He took the $20 and spoke to people in that immediate area, but he could not find anybody who had drugs for sale. He returned to Bednarchik and Dodd and walked with them. Dodd stopped walking because her leg hurt. He and Bednarchik continued to walk. When they found Rosie, Rosie told him she had no drugs herself, but if he gave her the money, she would return. He gave her the money, walked back to Bednarchik, and waited. Then he saw that police officers had Rodase and other men lined up against a gate. He had not seen Rodase before. After that, he himself was arrested.
On cross-examination, appellant admitted that he had numerous prior convictions, including several for sale of narcotics or sale of a substance falsely represented to be narcotics. He insisted that, although he was trying to make $10 by finding drugs for Officer Bednarchik, he did not actually give her any drugs.
Marshall Maydeck, one of appellant’s investigators, described the distances between various points at the crime scene.
Like Officer Do, Officer Eiman was called as a defense witness, and not as a prosecution witness. Eiman testified that he rode his bicycle behind appellant and Officer Bednarchik as they walked to the crime scene. He saw appellant speak with a woman and then walk into the courtyard of the apartment complex. From an adjacent alley, he watched as appellant handed money to a male Hispanic, who then gave a small item to appellant. Appellant returned to the sidewalk, crossed the street to Bednarchik, and handed her an item. After appellant was detained, Eiman told Bednarchik what he had observed. He did not recall whether he himself made a drug buy that day or if there were any other arrests that day.
DISCUSSION
Appellant maintains that he was denied due process and the right to present a defense because the trial court (1) excluded evidence from his investigator Rush that would have shown that People’s exhibit No. 2, the photocopy of the $20 bill, was a fake and (2) limited the testimony of Officer Eiman regarding what other drug buys he made that day. Appellant cites the Sixth and Fourteenth Amendments of the United States Constitution, article 1, section 15 of the California Constitution, and Evidence Code sections 210 and 352.
“‘A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse... 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.’” (People v. Brown (2003) 31 Cal.4th 518, 534, quoting People v. Rodriguez (1999) 20 Cal.4th 1, 9-10, citations omitted.) There was no abuse of discretion here.
1. Exclusion of Rush’s Testimony About the Photocopy
Outside the presence of the jury, appellant said he wanted his investigator, Alan Rush, to testify about a photocopy that Rush made, as that testimony would show that People’s exhibit No. 2, the photocopy that showed the $20 bill, was a forgery. Appellant indicated that he had another photocopy used in another case, which also had handwritten notes from Officer Zamora on it, but he could not give the name of the person who gave him that photocopy. According to appellant, Rush would testify that the officers “took the original copy... and laser-printed two other bills on top of the original copies, because they didn’t recover the right money exactly.” Appellant said Rush told him the officers used “a photographer[’s] trick.”
The prosecutor objected. The court decided to hear from Rush at an Evidence Code section 402 hearing. Rush’s testimony at that hearing was different from appellant’s offer of proof. Rush said he had “no idea” how People’s exhibit No. 2 was produced and no opinion on its authenticity. What he did was make photocopies, at appellant’s request, of two $20 bills and one $10 bill from his personal money, using two different photocopy machines. He did not know what kind of photocopy machine Officer Bednarchik used and was not an expert in document analysis or in the manipulation of documents.
The court sustained the prosecutor’s objection to Rush’s testimony, ruling that the evidence was not relevant and that any relevance was outweighed by the risk of confusion and an undue consumption of time. We find no abuse of discretion in that ruling. (People v. Babbitt (1988) 45 Cal.3d 660, 688.) Rush’s testimony would not have supported appellant’s contention that the photocopy was forged, as Rush had no opinion on that issue and simply photocopied three bills in his possession. Therefore, the court properly ruled that the testimony was irrelevant.
2. The Limitation on Officer Eiman’s Testimony
Officer Eiman, who was appellant’s witness, testified that he saw appellant and Rodase exchange cash for a small item, and then saw appellant give an item to Officer Bednarchik. Eiman also said he did not recall whether he himself made an undercover drug buy that day. Appellant attempted to show that Eiman engaged in a drug buy with an unspecified female 15 minutes later, and testified against the defendant in the preliminary hearing of that other case. The questions were based on a transcript that is not clearly identified in the record. After refreshing his recollection with the transcript, Eiman said he still could not remember the other transaction. Appellant tried to read the transcript into the record, to show that Eiman’s recollection of what happened during appellant’s incident must be faulty, as Eiman could not remember the other incident that same day. The court told appellant not to say anything more about what was in the document.
“‘As with all relevant evidence... the trial court retains discretion to admit or exclude evidence offered for impeachment.’” (People v. Brown, supra, 31 Cal.4th 518, 534, quoting People v. Rodriguez, supra, 20 Cal.4th 1, 9.) Here, the limitation on Officer Eiman’s testimony was not an abuse of discretion. The jury already knew that Eiman did not recall any other drug buys that day. The incident happened on June 1, 2007. Eiman testified on September 16, 2008. He testified that he was involved in “probably hundreds” of such undercover drug operations between those dates, so his lack of recall was not surprising. Going into the facts of a subsequent drug purchase would only have confused the issue of what happened in the particular drug purchase in this case.
Moreover, assuming any error in the limitation on impeachment, there was no prejudice, whether we apply the standard of Chapman v. California (1967) 386 U.S. 18, 24, or of People v. Watson (1956) 46 Cal.2d 818, 836. There was overwhelming evidence of appellant’s guilt, including his confession, three undercover officers’ observations of appellant’s meeting with Rodase, Officer Eiman’s specific observation of the drug exchange between appellant and Rodase, and the physical evidence, which included the rock of cocaine appellant gave to Officer Bednarchik, the rock of cocaine recovered from Rodase, and the $20 bill seized from Rodase. Appellant himself admitted that he attempted to purchase drugs from Bednarchik, using Bednarchik’s $20 bill. Given the weight of the evidence, the evidentiary rulings regarding Rush and Officer Eiman can have made no possible difference.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., BIGELOW, J.