Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge, Super. Ct. No. FVA902011.
Law Offices of Stanley W. Hodge and Stanley W. Hodge for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sabrina Lane Erwin and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER, J.
Defendant and appellant Ted Rentas appeals from a jury conviction. He claims a violation of his constitutional right of due process to present a complete defense through the confrontation and cross-examination of witnesses.
FACTUAL AND PROCEDURAL HISTORY
On December 8, 2009, police went to a home where defendant lived with his wife, Linda Rentas (Linda), to investigate narcotics sales. Defendant and Linda were found in a back bedroom of the home with three other individuals; they made suspicious motions when police entered the room. When searched, police found three bags of methamphetamine and a syringe on defendant’s person. During their investigation, police found multiple glass pipes, a large quantity of methamphetamine (including packaging), a digital scale, cash, a spoon containing a quantity of methamphetamine, and a cell phone that rang multiple times. Police also found 87 pills that later tested positive for Alprazolam (Xanax), which had a street value of $1 per pill. The totality of evidence indicated methamphetamine and other controlled substances were being sold in the home.
In a felony complaint filed December 10, 2009, defendant and Linda were charged as follows: possession of methamphetamine for sale (count 1—Health & Saf. Code, § 11378); possession of Alprazolam for sale (count 2—§ 11375, subd. (b)); possession for sale of Oxycodone Hydrochloride (Oxycontin) (count 3—§ 11351); and maintaining a place for selling or using controlled substances (count 4—§ 11366). A third defendant, Krista Lynn Smith (Smith), was also charged in count 1. It was further alleged defendant had three prior convictions for drug-related offenses.
All further statutory references are to the Health and Safety Code unless indicated.
A preliminary hearing was held on February 3, 2010, and defendant was held to answer on all four charges. However, on April 5, 2010, an information was filed deleting the allegation that defendant possessed Oxycontin for sale; count 4, maintaining a place for selling or using controlled substances (§ 11366), was moved up to count 3.
Meanwhile, Linda entered into a written plea agreement on February 3, 2010. In the plea agreement, Linda agreed to plead guilty to count 1, possession of methamphetamine for sale, and count 4, maintaining a place for selling or using controlled substances, in exchange for three years of probation. As part of the plea agreement, Linda admitted she was “engaged in the sale of methamphetamine on 12/8/09” with defendant and Smith; the prosecutor agreed not to call her as a witness against defendant.
On April 9, 2010, a jury found defendant guilty of all three counts. In a bifurcated proceeding, the court found all of the alleged prior convictions to be true. The court sentenced defendant to a total of 13 years in state prison. To reach the total term, the court imposed the upper term of four years on count 2, and then added three consecutive three-year terms as a result of defendant’s three prior convictions. The court also imposed eight months on count 1, and three years on count 3, but stayed those terms pursuant to Penal Code section 654.
DISCUSSION
During trial, defendant called Linda as a witness in his defense. At a hearing held outside the presence of the jury, defendant indicated he wanted to ask Linda questions designed to elicit testimony that the drugs in the house were hers, not his. However, on the advice of counsel, Linda invoked her Fifth Amendment right not to testify. Defendant argues it was error for the trial court to allow Linda to claim her Fifth Amendment privilege not to testify, because the privilege expired when she gave up her right to appeal. He also contends a reversal of his conviction is required, because he was prejudiced and the error rendered his trial fundamentally unfair. Because Linda was unable to testify, defendant contends he was unable to present evidence of his lack of involvement in the drug activity at his home on the date in question.
The Fifth Amendment privilege against self-incrimination “evaporates in two ways, waiver and expiration. A defendant who takes the stand during his own trial to deny guilt, waives the privilege as to that proceeding, as does a defendant who pleads guilty. But in neither case does he waive the privilege as to subsequent proceedings against other defendants; at the earliest, the privilege expires when the time to file an appeal has passed with no notice of appeal filed.” (People v. Fonseca (1995) 36 Cal.App.4th 631, 637.) A witness retains the privilege while an appeal is pending, and “a guilty plea does not necessarily preclude the filing of a legitimate appeal.” (Id. at p. 635.)
Defendant’s argument is that Linda could not invoke her Fifth Amendment privilege on April 8, 2010, because she waived her right to appeal as part of the plea agreement she entered into on February 3, 2010. The plea agreement states as follows: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” This provision in the plea agreement is not absolute. For example, it would not preclude Linda from appealing the sentence or other matters occurring after the plea. (People v. Orozco (2010) 180 Cal.App.4th 1279, 1284.) The waiver would also not preclude Linda from obtaining a certificate of probable cause under Penal Code section 1237.5, and filing an appeal challenging the validity of her plea agreement by claiming ineffective assistance of counsel based on the advice received regarding the entry of the plea or the waiver. (Orozco, at p. 1285.) We must therefore reject defendant’s contention the trial court erred in allowing Linda to exercise her Fifth Amendment right not to testify.
Defendant does not contend the time for Linda to invoke her Fifth Amendment privilege had expired on or before April 8, 2010, because the time for an appeal had passed with no notice of appeal being filed.
Through counsel, Linda also indicated she would be exercising her marital privilege not to testify under Evidence Code section 973, subdivision (a). Defendant also contends this was error, because the privilege does not apply when one spouse is being called in support of the other spouse, rather than as an adverse witness.
“Evidence Code section 970 provides that a married person has a privilege not to testify against his or her spouse who is a party in any proceeding. The privilege belongs to the married person, not the spouse who is the party. [Citations.]... [¶] Under Evidence Code section 973, subdivision (a), if a married person chooses to testify in a proceeding in which his or her spouse is a party, the person waives the privilege and must answer potentially damaging questions on cross-examination. ‘[A] married person cannot call his spouse as a witness to give favorable testimony and have that spouse invoke the privilege provided in Section 970 to keep from testifying on cross-examination to unfavorable matters....’ [Citations.]” (People v. Lucas (1995) 12 Cal.4th 415, 490.)
Even if Linda could offer favorable testimony on behalf of the defense on direct examination, this unquestionably would have opened her to cross-examination, which was potentially very damaging to her. As part of her plea agreement, she admitted she was “engaged in the sale of methamphetamine on 12/8/09” with defendant. A claim of marital privilege would not have protected her from answering potentially damaging questions about this admission and other incriminating evidence in the case. We must therefore reject defendant’s contention it was erroneous for the trial court to allow Linda to rely on the marital privilege in her decision not to testify at defendant’s trial.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., McKINSTER J.