Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10652
SIMS , Acting P. J.On retrial, a jury convicted defendant Lai Kuang Saechao of possessing a controlled substance (methamphetamine) for sale (Health & Saf. Code, § 11378). On appeal, defendant contends that his federal due process rights were violated when a police officer testified that he had spoken with confidential informants who had purchased methamphetamine from defendant. Defendant also argues that the trial court erroneously denied his motion to discover the informants’ identities in order to cross-examine them.
We reject defendant’s arguments because the trial court promptly admonished the jury to disregard the officer’s statement about his conversations with the informants. The trial court concluded the jury heeded the admonition. Even if the jury did not obey the curative instruction, defendant’s claim would nonetheless fail because wrongful admission of evidence at trial violates federal due process only in exceptional cases. This is not such a case because the wrongful testimony was a single statement, immediately cured by admonition, and the evidence against defendant was strong.
We also conclude that the trial court did not err in denying a hearing on whether to disclose the informants’ identities. The informants’ drug purchases from defendant were excluded from the jury’s consideration and thus not probative of defendant’s guilt. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL HISTORY
On October 27, 2006, law enforcement officers from the Shasta Interagency Narcotics Task Force, which included members of the Redding Police Department and California Highway Patrol, conducted a search of defendant’s person, residence, and vehicle.
The officers found a plastic bag containing 160.87 grams of methamphetamine in defendant’s laundry room. The officers showed the bag to defendant’s wife, Melanie. Before she could answer, defendant interjected, “That’s all I got.” Defendant further stated, “Melanie didn’t know the methamphetamine was here; it’s normally in my car[.]”
Under a baby crib, the officers found a small safe. Defendant provided the combination, and the officers discovered $1,627 in cash upon opening it. In defendant’s front pant pocket, the police found $2,199 in cash.
A search of defendant’s car led to the discovery of 27.1 grams of marijuana. The officers also found a digital gram scale in the driver’s side door, and a fanny pack on the rear floorboard. The fanny pack contained numerous sandwich bags, another digital gram scale, and a used methamphetamine pipe.
Officer Randy Rudd, who had worked on thousands of narcotics investigations during his 20 years of law enforcement experience, testified that he had never known a drug user to possess as much as 160 grams of methamphetamine solely for personal use. Large amounts of methamphetamine, such as that found in defendant’s residence, are consistent with possession for sale because drug users usually possess only small quantities for personal use. The officer further testified that the two scales in the car were consistent with drug dealers’ practice of measuring out narcotics for buyers at the time of sale. The residence’s lack of ingestion devices indicated the drug was intended to be sold because users “will always have the needles and pipes laying around the house or somewhere near their methamphetamine.”
In February 2007, the Shasta County District Attorney filed an information charging defendant with possession of a controlled substance for sale (Health & Saf. Code, § 11378), maintaining a place for selling or using a controlled substance (Health & Saf. Code, § 11366), possession of marijuana for sale (Health & Saf. Code, § 11359), and possession of drug paraphernalia (Health & Saf. Code, § 11364). The information further alleged that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b)), and had suffered a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)).
During the first trial, a jury found defendant guilty of possessing marijuana for sale and possessing drug paraphernalia. The jury acquitted him of maintaining a place for selling or using a controlled substance. The trial court declared a mistrial on the count alleging possession of methamphetamine for sale. The court found true the allegation of a prior prison term, and granted the prosecution’s motion to dismiss the allegation of a prior narcotics conviction as it pertained to the counts of conviction.
On retrial, the jury found defendant guilty of possessing methamphetamine for sale. The trial court found true the allegation of a prior narcotics conviction.
The trial court sentenced defendant to an aggregate prison term of six years and eight months; comprising two years (the mid term) for possession of methamphetamine for sale, eight months (one-third of the mid term) for possession of marijuana for sale, a three-year enhancement for a prior narcotics conviction, and a one-year enhancement for a prior prison term. The court also imposed a concurrent 90-day jail term for possession of drug paraphernalia.
DISCUSSION
I
Denial of Defendant’s Motions for Mistrial and New Trial
Defendant contends that the trial court erroneously denied his motion for a mistrial after Officer Rudd testified that he spoke to confidential informants who had purchased methamphetamine from defendant. Defendant further argues that the error violated his federal due process right to a fair trial. We disagree. The trial court concluded that the jury heeded the instruction to disregard the officer’s testimony about the informants’ drug purchases from defendant. Given the strength of the evidence against defendant, even erroneous consideration of Officer Rudd’s statement fails to arise to a federal due process violation.
A
During the retrial, defense counsel cross-examined Officer Rudd, who had participated in the search of defendant’s residence and vehicle. Counsel questioned the officer’s knowledge of defendant’s drug dealing, which led to the following colloquy:
“Q [DEFENSE COUNSEL]: Did you ever buy methamphetamine from [defendant]?
“A [OFFICER RUDD]: I didn’t, no.
“Q No. Did you ever see him sell methamphetamine?
“A No.
“Q Now, did you talk to the neighbors of [defendant]?
“A I don’t believe so, no.
“Q Okay. So you don’t know if there was a lot of traffic going in and out of [defendant]’s house?
“A My recollection, he just -– he had not move [sic] -– he hadn’t lived there that long at that apartment, so I don’t -– we never had any complaints about it. I spoke to people that have purchased methamphetamine from [defendant].
“[DEFENSE COUNSEL]: Your Honor, can we approach?
“THE COURT: Well, you want me to tell them to disregard that?
“[DEFENSE COUNSEL]: Well
“THE COURT: Yeah, he shouldn’t have said that. That’s not admissible, and you should totally disregard it.
“[DEFENSE COUNSEL]: Your Honor, I would have to make a motion for mistrial. I just don’t know if we can overcome that.
“THE COURT: Well, I’m going to count on this jury to totally erase that from their minds.”
Defense counsel renewed the motion for mistrial later that day after the jury left. The trial court again denied the motion, stating: “[T]he bottom line, I have a lot of faith in jurors and I’m going to deny the motion for mistrial.”
After the verdict, defendant moved for a new trial, reiterating his assertion that the trial court should have declared a mistrial. The court denied the new trial motion, explaining, “I thought I emphatically told the jury that they should disregard it. I said you should totally disregard it, and I also reminded them that I am going to –- this was in front of the jury [–-] that I am going to count on the jury to totally erase that from their minds, end quote, and I think that jurors are capable of totally erasing things from their minds.” The trial court further explained, “In addition to that, I don’t think that the result would have been any different with or without that question and that answer. I don’t think there’s been a showing that the jury would in any way have come to a different decision....”
B
There exists no dispute that Officer Rudd should not have testified about speaking with confidential informants who bought methamphetamine from defendant. The trial court had earlier denied the prosecution’s motion to “include evid[e]nce of Win-River reputation re[garding] drug dealing....” Thus, the trial court properly admonished the jury to disregard the statement regarding the informants who purchased drugs from defendant. There also exists no dispute that the trial court properly instructed the jury to disregard the testimony. The issue on appeal concerns whether the instruction cured any harm from the officer’s blunder.
If testimony considered by a jury renders a trial unfair, the court must declare a mistrial. (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) However, “[a] trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged....” (People v. Bolden (2002) 29 Cal.4th 515, 555, italics added.) Whether a particular incident at trial is incurably prejudicial presents a question addressed to the sound discretion of the trial court. (People v. Jenkins, supra, at p. 986.)
As the California Supreme Court has repeatedly explained, “‘The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.’” (People v. Smith (2007) 40 Cal.4th 483, 517, quoting People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Box (2000) 23 Cal.4th 1153, 1218.) We presume that the jury followed the curative instruction and that the error was thereby rendered harmless. (People v. Nguyen (1995) 40 Cal.App.4th 28, 37.)
Evidentiary errors causing irreparable harm to the right to a fair trial are rare. “It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect... cannot be removed by the court's admonitions.’” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404, quoting People v. Allen (1978) 77 Cal.App.3d 924, 934-935.) Defendant has failed to persuade us that the admonition in this case was inadequate to remedy any possible prejudice from the officer’s wrongful statement.
The trial court determined that no injustice had resulted from Officer Rudd’s statement about the confidential informants. The court expressed confidence that the jurors actually heeded the curative instruction, explaining, “I was watching the jury when I admonished them not to consider it for any purpose, and I got nothing but affirmative nods and I felt pretty comfortable that the prophylactic instruction worked....” The law presumes a jury heeds a curative admonition; the trial court was allowed to conclude the jurors heeded the admonition.
Arguing that this is an exceptional case in which no curative instruction could have alleviated prejudice, defendant relies on People v. Allen, supra, 77 Cal.App.3d 924. Allen involved a trial for robbery in which defendant was prevented from cross-examining two key prosecution witnesses about their own pending charges for the same crime. (Id. at pp. 932-933.) As a result, defendant was prevented from showing the witnesses’ motive to assign false blame to him. (Ibid.) Compounding the error was a witness’s testimony that defendant “was on parole and he couldn’t stand another beef.” (Id. at p. 934.) Although the trial court admonished the jury to disregard the statement regarding defendant’s parole status, the Court of Appeal reversed the conviction due to the dual evidentiary problems. (Id. at p. 938.)
In reversing, the Allen court explained that “the record reveal[ed] an extremely close case in which the jury had to make its fact determination based upon the credibility of the appellant and his witnesses and of the credibility of the prosecution's witnesses.” (People v. Allen, supra, 77 Cal.App.3d at p. 935.) Nonetheless, the Allen court noted, “‘An improper reference to a prior conviction may be grounds for reversal in itself [citations] but is nonprejudicial “in the light of a record which points convincingly to guilt....”’” (Id. at p. 935, quoting People v. Rolon (1967) 66 Cal.2d 690, 693.) The record in this case points convincingly to defendant’s guilt.
In defendant’s car, the police found two digital gram scales along with the type of sandwich bags commonly used for packaging narcotics. The scales and bags allowed for meting out individual, usable quantities of drugs to buyers. Defendant’s statement that the methamphetamine was normally kept in his car connects the drug with objects facilitating its sale.
Officer Rudd testified that the very amount of methamphetamine seized indicated the purpose of sale. Given the officer’s testimony that one-tenth of a gram of methamphetamine is a “normal dose,” defendant had more than 1,600 usable amounts of the drug. In the officer’s extensive experience with the illicit narcotics trade, he had never known anyone to possess such a quantity solely for personal use. Further indicating that the methamphetamine was intended for sale was the lack of ingestion devices in the residence where the drug was found. Methamphetamine users habitually keep ingestion devices, such as needles and pipes, near the drugs they intend to use.
Also pointing to defendant’s possession of the methamphetamine for sale was the $3,826 in cash that he had in his front pocket and in his safe. The large amount of cash provided additional evidence of drug sales.
Defendant emphasizes the absence of a cell phone, which he contends is “presumably an indispensable item” for drug sales. We will not so presume, especially because testimony established that drug dealers who sell at specific locations do not need cell phones to communicate with buyers. The lack of pay/owe sheets in defendant’s residence or car also does not undermine the strength of the evidence showing that defendant possessed the methamphetamine for sale.
The erroneous admission of testimony warrants reversal only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also People v. Venegas (1998) 18 Cal.4th 47, 93 [holding that erroneous admission of evidence is analyzed for prejudice under the Watson test].) Given the strong evidence indicating possession of the methamphetamine for sale, it is not reasonably probable that defendant would have received a more favorable result if the jury had not heard Officer Rudd’s statement regarding the confidential informants.
In sum, we conclude that the trial court did not abuse its discretion in denying defendant’s motions for mistrial or motion for new trial based on the same ground. Any error in the trial court’s reliance on the jury’s heeding the curative instruction was harmless considering the evidence against defendant.
C
Defendant seeks a more favorable test for prejudice than that articulated in Watson, supra, 46 Cal.2d 818, by alleging the denial of his federal due process rights. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] [holding that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”].) Though defendant asserts violations of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, he cites only the single case of McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 in support of his argument. We find that case unhelpful to defendant.
McKinney v. Rees, supra, 993 F.2d at pages 1383-1384, involved the admission of evidence regarding a murder defendant’s fascination with knives. The Ninth Circuit concluded that the trial court’s erroneous admission of this “emotionally charged” but irrelevant evidence violated federal due process guarantees. (Id. at p. 1385.) By contrast, the trial court in this case ruled that Officer Rudd’s single statement regarding the confidential informants should not be admitted. Moreover, the court promptly instructed the jury to disregard it in its entirety. The trial court committed no error, and, as we have explained, the jury may be presumed to have disregarded the officer’s wrongful statement.
Even if there had been evidentiary error, it would not have constituted a due process violation. “While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated....” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) “The... issue is not whether introduction of [the evidence] violated state law evidentiary principles, but whether the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process.” (Id. at p. 920, quoting Reiger v. Christensen (9th Cir. 1986) 789 F.2d 1425, 1430.) Having cured the officer’s blunder with a prompt admonition, the trial court properly determined that defendant’s trial was not unfair.
II
Denial of Defendant’s Motion to Disclose Identities of Confidential Informants
After the trial court denied defendant’s first motion for mistrial, defense counsel questioned Officer Rudd about the identity and characteristics of the confidential informants who had spoken to the officer about purchasing drugs from defendant. The officer refused to divulge the identities of the informants, citing the provisions of Evidence Code sections 1040 and 1042. On appeal, defendant argues that the trial court erred by failing to conduct a hearing on whether to compel disclosure of the confidential informants’ identities. Again, defendant claims that the error violated his federal due process rights.
Evidence Code section 1040 does require, in subdivision (a), the safeguarding of “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” However, it is Evidence Code section 1041 that applies when a confidential informant provides a law enforcement officer with information about illegal activities. In pertinent part, subdivision (a) of section 1041 provides that “a public entity has a privilege to refuse to disclose the identity of a person who has furnished information... purporting to disclose a violation of a law of the United States or of this state..., and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and: [¶] (1) Disclosure is forbidden by... a statute of this state; or [¶] (2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice....” The duty to safeguard confidential informants’ identities is established by Penal Code section 964, subdivision (a).
Subdivision (d) of Evidence Code section 1042 provides in pertinent part: “The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding... unless... the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”
We conclude that the trial court did not err. Before a defendant becomes entitled to a hearing under Evidence Code section 1042, defense counsel must make a prima facie showing that the informant has given evidence relevant to defendant’s guilt. Because the trial court instructed the jury to totally disregard Officer Rudd’s statement that he spoke with confidential informants, these drug purchases were not in evidence and thus not probative of guilt. The trial court was not required to hold a hearing regarding evidence already excluded from the jury’s consideration.
A
Preliminarily, we consider defendant’s contention that Officer Rudd waived the privilege of confidentiality for the informants’ identities. Specifically, defendant contends that Officer Rudd’s “voluntary injection of the information regarding these alleged sales [of methamphetamine] to confidential informants is tantamount to a concession that the informants’ identity is material and should be disclosed to the defense.” We conclude that the officer neither knowingly and voluntarily waived the confidentiality nor did he forfeit the privilege against disclosure by failing to assert it.
The record shows that Officer Rudd at no time revealed the identities of the confidential informants during questioning by defense counsel:
“Q [DEFENSE COUNSEL]: All right. Do you know who those people are?
“A [OFFICER RUDD]: I do.
“Q Can you tell us?
“A No, I can’t.
“THE DEFENDANT: Why not?
“Q [DEFENSE COUNSEL]: Why not?
“A Because I claim the privilege of confidentiality, 1040 and 1042 of the Evidence Code.
“Q But you didn’t actually see these -– these transactions with them and [defendant]?
“A No, I did not.
“Q They just told you about them?
“A Yes.
“Q And did they receive some benefit by telling you about them?
“A Uhm, some may have.
“Q They may have receive [sic] money; right?
“A Some may have.
“Q They may receive lack of prosecution?
“A Some may have.
“Q Okay. So these people that you tell this [sic] are, quite likely, users?
“A Some, yes.
“Q Okay. But you can’t tell us if that’s the case in this case?
“A No, I can’t tell you. I don’t like to, again, for their confidentiality.
“Q So we have no way of judging the credibility of these people that gave you this information?
“A No.”
Based on this exchange, we conclude that Officer Rudd neither waived nor forfeited the confidentiality of the informants. Rather than reveal the informants’ identities, the officer promptly invoked the confidentiality privilege. Upon further questioning, Officer Rudd refused to give identifying information about any of the informants. Thus, defendant’s waiver argument fails.
So too, we reject defendant’s assertion of ineffective assistance of counsel for failure to argue waiver. “Counsel's failure to make a futile or unmeritorious motion or request is not ineffective assistance.” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) Officer Rudd did not waive the informants’ confidentiality, and argument to the contrary by trial counsel would not have yielded a different conclusion.
B
We turn to the substance of defendant’s argument that the trial court should have held a hearing on the question of whether to compel disclosure of the informants’ identities. Defendant argues that a hearing pursuant to Evidence Code section 1042 was mandatory. We disagree.
Evidence Code section 1042, subdivision (d), provides: “When, in [a] criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure.... The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding... unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”
A hearing on the issue of disclosure is required only when the defendant produces some evidence to show “that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant's exoneration.” (People v. Lanfrey (1988) 204 Cal.App.3d 491, 499, quoting Honore v. Superior Court (1969) 70 Cal.2d at 162, 168.) Here, the trial court instructed the jury that it should totally disregard Officer Rudd’s statement about the confidential informants’ drug purchases from defendant. As we have explained, the trial court properly relied on the curative instruction to remove the testimony from the jury’s consideration. In short, the confidential informants’ drug purchases were not probative because they were not considered by the jury.
If the trial court had held a hearing as defendant requested, defense counsel would have had to rely on testimony that the court had already ruled inadmissible. The trial court was not required to engage in the futile act of declaring the testimony inadmissible a second time. Hence, the court committed no error in denying defendant’s motion for a hearing pursuant to Evidence Code section 1042, subdivision (d).
DISPOSITION
The judgment is affirmed.
We concur:ROBIE , J., BUTZ , J.