Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF124171A, Kenneth C. Twisselman, II., Judge.
Victor S. Haltom, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle Newcomb and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Joanne Perano was found guilty of transportation of a controlled substance and possession of methamphetamine. On appeal, she contends that the trial court erred in not allowing her to present evidence that her estranged husband may have “intentionally planted or accidentally dropped” the methamphetamine that was found in her car. She also contends that the trial court erred in denying her motion for a mistrial because of an alleged Doyle error. For the following reasons, we affirm.
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
STATEMENT OF THE CASE
On August 20, 2008, the Kern County District Attorney’s Office filed an information alleging, in count one, that appellant violated Health and Safety Code section 11379, subdivision (a), by transporting methamphetamine in her car; and, in count two, that she violated section 11377, subdivision (a), by possession of that methamphetamine. On September 2, 2008, appellant pled not guilty to the charges.
All further section citations are to the Health and Safety Code, unless otherwise stated.
On November 26, 2008, a jury was empanelled to hear the case. During the hearing on motions in limine, defense counsel made an offer of proof that appellant’s estranged husband was responsible for placing the methamphetamine in the car, on the driver’s seat. The prosecution objected to the admissibility of the proffered evidence, contending that there was testimony that appellant never left the driver’s seat during the altercation with the husband which “would make it almost physically impossible and certainly not within reason to believe that [the estranged husband] planted methamphetamine underneath [appellant’s] rear end.” The trial court found that the defense did have evidence of the estranged husband’s possible motive or opportunity to commit the crime, but concluded that the defense had not proffered “any direct or circumstantial evidence linking [the estranged husband] to the actual placement of the drugs in the car.” Further, the trial court determined that the admission of the proffered defense evidence “would be highly prejudicial and that the probative value of that evidence is substantially outweighed by its prejudicial effects.”
On December 1, 2008, the trial court heard and denied defense counsel’s motion for a mistrial because of an alleged Doyle error. On December 2, 2008, the jury found appellant guilty as charged.
On January 5, 2009, the trial court suspended imposition of sentence on count 1 and granted appellant a three-year term of probation. The trial court stayed the imposition of sentence on count 2, pursuant to Penal Code section 654, contingent on the completion of the term in count 1.
On the same date, appellant filed her notice of appeal.
FACTS
On July 5, 2008, Bakersfield Police Lieutenant Mike Cantrell stopped appellant’s car. Appellant was in the driver’s seat, and Jaime Arredondo was the passenger. Officers John Roach and Jess Beagley arrived to assist Lieutenant Cantrell.
As appellant exited her car, Officer Roach saw a plastic baggie containing a white crystalline substance on the driver’s seat. The baggie was toward the back of the seat and closer to the driver’s side door. Officer Beagley took the baggie into evidence. The substance in the baggie was tested and confirmed as 0.11 grams of methamphetamine, a useable amount.
At trial, Officer Beagley testified that appellant agreed to speak with him after he gave her the Miranda advisements. According to Officer Beagley, appellant told him that she was a methamphetamine user, the methamphetamine was hers, and that she had paid $10 for it. Appellant, however, denied that these events occurred. At trial, she testified that the officers did not read her the Miranda advisements, and she denied making any admissions to Officer Beagley. She testified that she instead told Officer Beagley, “You put it there.” Appellant also testified that she did not know that there was methamphetamine in her car.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Arredondo testified that he was not aware of any methamphetamine in the car, had not seen any methamphetamine when he got in the car, and could not see inside the car once he was removed from it.
DISCUSSION
A. Exclusion of Third Party Culpability Evidence
Appellant first contends that the trial court violated her constitutional right to present her defense when it refused to allow her to “present evidence from which the jury could have inferred that her estranged husband had intentionally planted or accidentally dropped the methamphetamine in the vehicle.”
In People v. Hall (1986) 41 Cal.3d 826 (Hall), the California Supreme Court held that a defendant may present evidence of third-party culpability that is “capable of raising a reasonable doubt of defendant’s guilt.” (Id. at p. 833.) However, “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Ibid.) “[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible … unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion....” (Ibid., internal citations omitted.) A trial court’s ruling on third-party culpability evidence is reviewed for an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372.)
In support of her defense that the methamphetamine did not belong to her, appellant offered to present the following evidence: 1) just prior to the arrest, appellant and her estranged husband engaged in a verbal argument which was witnessed by Arredondo; 2) Arredondo then noticed the “bizarre” actions of appellant’s husband which consisted of lunging “inside of the vehicle” and “rummaging through the vehicle, going through the glove box, the center console, the visor above the driver’s seat, and so on”; 3) appellant’s husband had a prior criminal history involving drug offenses which may have provided him with the means of obtaining methamphetamine; 4) a witness who would testify that appellant’s husband had led police officers to the witness’s house and, during the subsequent search, methamphetamine was found at the house but the witness had no idea that it was there; and 5) appellant had accused her husband of sexually molesting her children, which may have provided the husband with a motive to retaliate against her.
The prosecutor objected to the proffered evidence. She asserted that Arredondo was a biased witness. Further, Arredondo had told a defense investigator that appellant had stayed in the driver’s seat during the entirety of the verbal argument with appellant’s estranged husband. Arredondo also told the defense investigator that he had grabbed the husband after the husband was rummaging around in the car, and had pulled the husband with him out of the car. During this time, appellant never moved from the driver’s seat, which, the prosecutor argued, “would make it almost physically impossible and certainly not within reason to believe that Mr. Perano planted methamphetamine underneath [appellant’s] rear end.” The prosecutor also contended that the proffered witness was not a credible witness because of inconsistencies in her testimony and her prior drug convictions. Finally, the prosecutor asserted that there was nothing that currently substantiated the claims of alleged child molestation by the estranged husband.
Based on this record, we conclude that the trial court did not abuse its discretion by not permitting appellant to present third-party culpability evidence. Although appellant’s evidence may lead a jury to conclude that appellant’s estranged husband had a possible motive or opportunity to frame appellant, the probative value of the evidence does not outweigh the risk of undue delay and confusion during trial. First, the probative value of the evidence is minor in light of the objections raised by the prosecutor. Specifically, the testimony of Arredondo makes it unlikely that appellant’s husband could have planted the methamphetamine. Furthermore, the credibility of the proffered witness, whose testimony would lead to an inference that appellant’s husband had a pattern of planting drugs, is very low based upon her prior drug convictions and inconsistencies in her testimony. The low probative value of the evidence did not outweigh the risk of undue delay and confusion which would have been caused by the dispute over the mainly hearsay nature of the third-party culpability evidence.
Here, there is no direct testimony that appellant’s husband planted or accidentally left the methamphetamine. Rather, there was only circumstantial evidence that the husband perpetrated the crime; we concluded that this circumstantial evidence was of low probative value. Thus, the trial court did not abuse its discretion in not allowing the evidence of third-party culpability to be admitted.
B. Doyle Error
Appellant next contends that the trial court erred in denying her motion for a mistrial based upon prosecutorial misconduct because the prosecutor allegedly committed a Doyle error. (Doyle, supra, 426 U.S. 610.)
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citation.] ‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citation.] 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.”’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 29.)
In Doyle, the United States Supreme Court held that a defendant may not be impeached by his silence after he has received Miranda advisements. (Doyle, supra, 426 U.S. at pp. 618.) In Greer v. Miller (1987) 483 U.S. 756, 763 (Greer), the Supreme Court explained that a Doyle violation has two components. The first component is that the prosecutor makes use of a defendant’s post-arrest silence for impeachment purposes. The second component is that the trial court permits that use, such as when it overrules a defense objection, thereby giving the jury the unmistakable impression that what the prosecution is doing is legitimate. (Greer, supra, 483 U.S. at pp. 761-764.) Doyle error is analyzed under the Chapman harmless error standard. (People v. Earp (1999) 20 Cal.4th 826.)
Chapman v. California (1967) 386 U.S. 18 (Chapman).
In this case, the prosecutor asked appellant if she was denying making certain statements that the police attributed to her, which were that she admitted that she was a methamphetamine user and she had purchased the methamphetamine in the baggie for $10. Appellant stated that she did not make those statements. The prosecutor then asked appellant whether she was present at two prior court hearings in the case. Defense counsel objected to the questions on the grounds of relevance. After a sidebar conference, the trial court sustained the relevancy objection. The prosecutor then asked: “Ms. Perano, this case has been going on for quite some time, has it not?” Appellant answered, “Yes, it has.” The prosecutor then asked, “We have never heard anything like this before today, have we?” This question was in reference to appellant’s contention that she did not make certain statements that were attributed to her. Defense counsel objected, the trial court sustained the objection and told the prosecutor, “Follow a different line of questioning now.” The prosecutor did as instructed.
Later, outside the presence of the jury, defense counsel stated for the record that he “felt obligated to make a record about” what had occurred during the sidebar and argued for a mistrial. He stated:
“[The prosecutor] was asking questions about [appellant’s] attendance at other court hearings. There was a sidebar that was held, at which we discussed [appellant’s] obligation to tell her side of the story prior to trial, or at all.
“And this Court had indicated that it would sustain my objection, and [the prosecutor] was to move on from that line of questioning.
“I believe the reasoning was that [appellant] has no obligation whatsoever to turn over her side of the story before trial, or even at trial.
“After the objection was sustained, [the prosecutor] again asked, out in front of the jury, whether [appellant] had said anything about her story now prior to taking the stand today. I think that that’s prosecutorial misconduct, and I move for a mistrial.”
The prosecutor disagreed, stating that, as she understood the sidebar discussion, she was “not to go into attorney-client communications.” She further stated:
“I was instructed not to go into the specifics of various hearings. I abandoned altogether the line of questioning related to various court dates, which is where I had started when the initial objection was made
“I had informed the Court that my intent was to question the defendant’s credibility on this matter, as well as her motive to lie, as she has now waived her Fifth Amendment rights and taken the stand.
“My understanding, I was allowed, at a limited angle, to address that issue, which is all I did. That being said, Counsel did object, and it was sustained yet again.”
The trial court then considered and denied the motion for mistrial, ruling:
“I do not find that there has been a miscarriage of justice.
“I did rule in favor of the defense at the sidebar conference with regard to whether or not [the prosecutor] could pursue a line of questioning that would seek to establish that [appellant] had not previously told someone, other than her attorney, that she was denying making the statements that the police attributed to her with regard to buying the methamphetamine for $10 or that the methamphetamine found on the car seat was hers.
“I did feel that the objection was proper. And I don’t find that [the prosecutor] was engaging in willful misconduct. I believe she misunderstood the scope of the Court’s ruling on that.
“And I sustained the subsequent objection by [defense counsel] and directed [the prosecutor] to pursue a different line of questioning. I think that resolved the problem; so I do not find that there is good cause for a mistrial.
“I will find that the defendant has not been denied a fair trial. And the motion for mistrial is denied.”
Defense counsel did not request an admonishment concerning the prosecutor’s question. However, prior to jury deliberations, the trial court specifically instructed the jury that “[i]f an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. [¶] Do not assume to be true any insinuation suggested by a question asked a witness.”
On this record, we concluded that there was no Doyle error. As stated in Greer, supra, no Doyle violation occurs when the trial court does not permit the inquiry that Doyle forbids. (Greer, supra, 483 U.S. at pp. 763-764.) Thus, there is no Doyle violation where “the court explicitly sustained an objection to the only question that touched upon [appellant’s] postarrest silence. No further questioning or argument with respect to [appellant’s] silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained.” (Greer, supra, 483 U.S. at p. 764, fn. omitted.) These are the same factual circumstances that occurred in this case. Thus, there was no Doyle error.
The U.S. Supreme Court also held that the attempt to commit a Doyle violation, which was prevented by the trial court’s sustaining of a defense objection, may constitute prosecutorial misconduct, but any such error is reviewed under the Chapman harmless error standard. (Greer, supra, 483 U.S. at p. 765-766.) Under the factual circumstances in the Greer case, the Supreme Court concluded that any prosecutorial misconduct was harmless. (Id. at p. 766.)
Here, the record supports the trial court’s finding that the prosecutor did not attempt to intentionally violate Doyle. Nevertheless, any prosecutorial misconduct in this case was harmless based upon the same reasoning presented by the U.S. Supreme Court in Greer. (See Greer, supra, 483 U.S. at pp. 765-766.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J., Gomes, J.