Opinion
D040628.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL JAY SHUBERT, Defendant and Appellant.
In June 2002, defendant Mitchell Jay Shubert, representing himself in propria persona, was convicted by a jury of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). Allegations that Shubert had two prior prison term felony convictions within the meaning of section 667.5, subdivision (b) were found true. The court sentenced Shubert to a term of four years in state prison, consisting of (1) a middle term of two years for possession of methamphetamine, and (2) an additional two years for the two prior prison
All further statutory references are to the Penal Code unless otherwise specified.
felony convictions. The court imposed a term of 200 days, with credit for time already served, for the misdemeanor resisting arrest conviction.
Shubert appeals, contending that the judgment must be reversed because (1) evidence of the methamphetamine found on Shubert should not have been admitted into evidence as the People could not establish its chain of possession; (2) the court failed to instruct the jury regarding ownership of the car in which he was sitting when arrested; (3) there was insufficient evidence to support his conviction for resisting arrest; and (4) he was denied his right to present a defense by limiting his cross-examination of the arresting officer and excluding evidence of Shuberts attention deficit disorder. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Peoples Case
In the early morning of February 27, 2002, Kim Young was working at a 7-Eleven in Lakeside. She saw a car pull into the parking lot directly in front of the store. However, no one got out of the vehicle. The car remained there for approximately one and a half hours. Young saw that someone was sleeping in the vehicle and at about 3:00 or 3:15 a.m. she called the sheriffs department. She called because she wanted to sweep the parking lot but felt unsafe with the car there.
Sheriffs Deputy Ray Lyyjoki responded to Youngs call at about 3:20 a.m. Deputy Lyyjoki observed that the cars engine was turned off and that someone, later determined to be Shubert, was sleeping in the drivers seat. Deputy Lyyjoki tapped on the drivers window with his flashlight and woke Shubert. Shubert looked around and appeared disoriented. Deputy Lyyjoki asked Shubert to roll down his window. Shubert did not respond, only looked around. Shubert then asked Deputy Lyyjoki what he wanted and said he was not doing anything wrong.
Seeing that the windows were operated electrically, Deputy Lyyjoki asked Shubert to open the car door. Deputy Lyyjoki asked Shubert two times to open the door, but Shubert did not comply. Deputy Lyyjoki then opened the door himself. Shubert asked Deputy Lyyjoki why he was bothering him. Deputy Lyyjoki replied that he was responding to a call of someone sleeping in the parking lot and wanted to make sure Shubert was all right. Shubert denied that he had been sleeping.
In response to Deputy Lyyjokis questions, Shubert identified himself, provided a California identification card and told him that the car belonged to someone named "Charles" or "Chuck." Shubert was unable to produce a registration for the car. Deputy Lyyjoki then ran a records check on the vehicle and found that the registered owner was a Clara Alaniz of National City.
Shubert denied that he had driven the car to the 7-Eleven. He told Deputy Lyyjoki that he was at the 7-Eleven to meet a friend who was due to arrive at 6:00 a.m. Although sheriffs deputies were still on the scene after 6:00 a.m., no one arrived to meet Shubert.
Deputy Lyyjoki ran a records check on Shuberts identification card and found out that Shubert was on parole. Deputy Lyyjoki also discovered that Shubert did not have a valid drivers license. Deputy Lyyjoki testified that he instructed Shubert to get out of the car for "officer safety." Deputy Lyyjoki explained to Shubert the reason for his request. Shubert refused to get out of the car, saying that he had done nothing wrong. Deputy Lyyjoki requested officer backup and Sheriffs Deputy Karl Miller arrived 10 minutes later. Before Deputy Miller arrived, Deputy Lyyjoki asked Shubert several times to exit the car, but Shubert refused to do so.
Prior to the start of the trial the court told the jury that evidence of Shuberts parole status was admitted for a limited purpose.
When Deputy Miller arrived, Deputy Lyyjoki told Shubert that they were going to remove him from the car. Shubert then for the first time stated that he was unable to get out of the car. Deputies Lyyjoki and Miller assisted Shubert out of the car. After they did so, Shubert did not appear to have any problem walking or moving.
For officer safety, Shubert was then handcuffed. Deputy Miller conducted a pat-down search of Shubert. Deputy Miller found and removed a small clear plastic baggie from a pocket in Shuberts shirt that contained a white crystal-like substance. Deputy Lyyjoki estimated that approximately 25 to 30 minutes elapsed between the time he first contacted Shubert and when the baggie was removed from Shuberts shirt pocket.
The substance found in Shuberts shirt pocket was sent to the sheriffs crime laboratory for analysis. Criminalist Monica Stanton analyzed the substance and found it to be 4.80 grams of methamphetamine.
DISCUSSION
I. Chain of Custody of Substance Found on Shubert
Shubert asserts that the court erred in allowing evidence of the testing of the suspected drugs found on his person because the People could not establish a chain of custody. We reject this contention.
The People assert that this issue has been waived by Shuberts failure to raise it before the trial court. However, Shubert did object that the chain of custody had been broken and cross-examined witnesses concerning the chain of custody. Accordingly, we will address this issue on the merits.
A. Background Facts
Deputy Lyyjoki testified that Peoples exhibit No. 1 contained the suspected drugs found in Shuberts pocket. The exhibit consisted of a plastic baggie with a white crystalline powder substance inside another, heat-sealed, baggie. Deputy Lyyjoki brought the exhibit to court from the laboratory. He also testified that the substance seized from Shubert was sent to the Sheriffs Departments laboratory.
Criminalist Stanton, employed by the sheriffs departments crime laboratory, testified that she tested exhibit No. 1 and found that the interior baggie contained methamphetamine. Stanton explained the chain of custody procedure for the crime lab under which property in evidence must be checked out. She further testified that when testing is completed, the evidence is checked back in. Evidence is packaged by someone outside the laboratory, such as a sheriffs deputy, and is received by the laboratory in a "K-pack" such as the one that contained exhibit No. 1.
Deputy Miller testified that exhibit No. 1 appeared to contain the suspected drugs he found in Shuberts pocket. He also testified that Deputy Lyyjoki locked the suspected drugs into evidence.
On the next day of trial, Shubert asserted that the chain of custody was broken when Deputy Lyyjoki stepped outside the courtroom with exhibit No. 1, and the court had to send the bailiff after him to retrieve the exhibit. However, the court found that exhibit No. 1 was gone from the courtroom for less than a minute, and when it was returned the court could see that it was in the same condition as before. Shubert did not raise any other objection at trial to the chain of custody for exhibit No. 1. Further, in his closing argument Shubert did not dispute the charge that he was in possession of methamphetamine when he was arrested.
B. Analysis
"The rules for establishing chain of custody are as follows: " The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [P] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight." [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 444, 907 P.2d 373.)
On appeal, Shubert does not attack the fact that exhibit No. 1 left the courtroom for less than a minute. Rather, Shubert asserts that there was no evidence presented as to "who packaged the evidence, where it was stored before it was submitted to the lab for testing, and how the evidence reached the crime lab." Shubert also contends that no evidence was presented showing that the contents of the baggie were in the same condition as when they were seized from him. Finally, Shubert asserts that Deputy Millers inability to recognize Lyyjokis handwriting on the evidence tag for exhibit No. 1 "raises questions as to whether the evidence was properly handled after it was seized from [Shubert]."
Shuberts contentions regarding the chain of custody are pure speculation, unsupported by any evidence. The testimony of Deputies Miller and Lyyjoki, as well as criminalist Stanton, show a proper chain of custody where the exhibit was booked into evidence, sent to the crime lab, tested, and then brought to court by Deputy Lyyjoki. Any doubt as to the chain of custody goes only to the weight, not to the admissibility of the evidence. (People v. Lucas, supra, 12 Cal.4th at p. 444.)
II. Lack of Instruction Concerning Ownership of Vehicle
Shubert asserts that the court erred by failing to instruct the jury, sua sponte, not to speculate about whether he was lawfully in possession of the car he drove to the 7-Eleven. We reject this contention.
A. Background Facts
A month before trial, when Shubert was still represented by counsel, his attorney asked the court to exclude evidence suggesting that he was not the registered owner of the car he drove to the 7-Eleven. The People responded that whether Shubert appeared to be in lawful possession of the vehicle was relevant to whether Officer Lyyjoki had lawfully detained Shubert for proving the charge of misdemeanor resisting arrest. The court agreed with the People, but stated that the jury would be informed by an instruction or stipulation that possession of a stolen vehicle was not an issue in the case. The following day Shuberts motion to represent himself was granted.
When trial began a month later, Shubert, now in propria persona, did not request an instruction or stipulation concerning the ownership of the vehicle. Further, Shubert, in cross-examining Deputy Lyyjoki, implied that he was in possession of paperwork showing that he was the registered owner of the vehicle. Shubert then said to the jury, "The defendant had a title to the car in his pocket."
In closing argument, the prosecutor argued that the information Deputy Lyyjoki received concerning the vehicle gave rise to a reasonable suspicion that the car might have been stolen. However, the prosecutor did not argue that the car was in fact stolen. The court did not instruct the jury concerning ownership of the vehicle.
B. Analysis
A trial court has the duty to instruct, sua sponte, on general principles of law relevant to the issues raised by the evidence that are necessary to the jurys understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094.) However, whether Shubert was actually in possession of a stolen car was not an element of the charged crimes, nor relevant to those elements. Thus, it was incumbent upon Shubert to request an instruction.
Further, even if the court erred in not instructing the jury concerning ownership of the vehicle, such error does not require a reversal. As Shuberts federal constitutional right to a fair trial is not implicated, any error here would require a reversal only if it were reasonably probable that Shubert would have received a more favorable result in the absence of error. (People v. Champion (1995) 9 Cal.4th 879, 919, 891 P.2d 93.) Here, no evidence was presented that Shubert was actually in possession of a stolen car and the People did not make any such argument to the jury. Shubert stated to the jury that the vehicle was his. Shubert did not contest in closing argument that he was in possession of methamphetamine when arrested. It is not reasonably probable that Shubert would have achieved a better result on the misdemeanor resisting arrest charge had the jury been instructed not to speculate concerning ownership of the vehicle.
III. Sufficiency of Evidence on Section 148 Violation
A. Standard of Review
On an appeal contending there is insufficient evidence to support a verdict or order of the court, we review the evidence in the light most favorable to the judgment and, in so doing, determine whether there is substantial evidence such that a rational trier of fact could make the challenged finding. (People v. Hill (1998) 17 Cal.4th 800, 848-849, 952 P.2d 673.) The reviewing court will presume in support of the trial courts judgment the existence of every fact the trier of fact could reasonably infer from the evidence. (People v. Iniguez (1994) 7 Cal.4th 847, 854, 872 P.2d 1183.) "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on "isolated bits of evidence." [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 906 P.2d 1290, 260-261, italics omitted.) That the evidence might lead to a different ruling does not warrant a conclusion that the evidence is insubstantial. (People v. Holt (1997) 15 Cal.4th 619, 669, 937 P.2d 213; People v. Berryman (1993) 6 Cal.4th 1048, 1084, 864 P.2d 40, overruled on other grounds in People v. Hill, supra, 17 Cal.4th 800.)
Moreover, it is not our function to reweigh the evidence. (People v. Perry (1972) 7 Cal.3d 756, 785, 103 Cal. Rptr. 161, 499 P.2d 129, overruled in part on other grounds in People v. Green (1980) 27 Cal.3d 1, 164 Cal. Rptr. 1, 609 P.2d 468.) Thus, a judgment will not be overturned even if we might have made contrary findings or drawn different inferences, as it is the trier of fact, not the appellate court. that must be convinced beyond a reasonable doubt. (People v . Perez (1992) 2 Cal.4th 1117, 1126, 831 P.2d 1159.)
B. Analysis
Section 148, subdivision (a)(1) provides:
"Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($ 1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."
"The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.) An officer must have been acting lawfully to be considered to have been engaged in the performance of his or her duties. (In re Manuel G. (1997) 16 Cal.4th 805, 815, 941 P.2d 880.)
Shubert first asserts that there is no substantial evidence in support of the section 148 violation conviction because Deputy Lyyjokis initial detention of Shubert was not proper. This assertion is unavailing.
Officers may engage in a brief investigative detention where there is a suspicion that the person has committed or is about to commit a crime. (In re James D. (1987) 43 Cal.3d 903, 911, 239 Cal. Rptr. 663, 741 P.2d 161.) Shubert could not produce registration for the vehicle. He also told Deputy Lyyjoki that a person named "Charles" or "Chuck" owned the car. However, a records check showed the vehicle was registered to a Clara Alaniz of National City. Shubert denied driving the vehicle to the 7-Eleven and that he had been sleeping. There was no evidence to support his assertion that he was there to meet someone. These facts provided a reasonable suspicion that Shubert was in possession of a stolen vehicle and gave the officers reasonable grounds to detain him to determine if the vehicle was in fact stolen. In fact, given Shuberts status as a parolee, he could be detained and searched even without reasonable suspicion so long as the search was not "arbitrary, capricious or harassing." (People v. Reyes (1998) 19 Cal.4th 743, 751-752, 968 P.2d 445.)
Shubert also asserts that even if the detention was proper, he did not violate section 148 because he did not delay Deputy Lyyjoki in his duties. This assertion is also unavailing. Deputy Lyyjoki instructed Shubert several times to get out of the vehicle and explained to Shubert the reason for the requests. However, Shubert refused. Deputy Lyyjoki had to wait for back up and he and Deputy Miller had to physically remove Shubert from the car. Thus, Shuberts refusal to exit the vehicle delayed both Deputy Lyyjoki and Deputy Miller in the lawful exercise of their duties. In sum, substantial evidence supports Shuberts conviction under section 148.
IV.Exclusion of Evidence Concerning ADD Disorder
Shubert last asserts that the court erred by (1) not allowing him to present expert evidence concerning his asserted attention deficit hyperactive disorder (ADD) and (2) sustaining an objection to his question to Deputy Lyyjoki concerning whether he could tell if Shubert was intentionally not following his orders. We reject these contentions.
A. Background Facts
1. Cross-examination of Deputy Lyyjoki
On cross-examination, Deputy Lyyjoki testified that Shubert appeared calm but disorganized. However, the court sustained an objection to Shuberts question to him whether he thought Shubert suffered from ADD. Shubert also asked if Deputy Lyyjoki thought that he was intentionally delaying him. The court sustained an objection to that question as well.
2. Expert testimony concerning ADD
After the People rested, Shubert informed the court that he was considering calling a Dr. Friedman as a witness concerning ADD. Shubert wanted to have her testify not as to his particular condition but as to the general traits of someone suffering from that disorder. Shubert also told the court that he did not plan to testify.
Dr. Friedman arrived in court and consulted briefly with Shubert. After she did so, she informed the court that she had no testimony at that time to offer on his behalf. The court excused the jury until the following morning and allowed Dr. Friedman further time to talk with Shubert. After Dr. Friedman had talked with Shubert for another hour, he told the court that he did not intend to call Dr. Friedman as a witness.
The next morning Shubert again indicated that he wished to call Dr. Friedman as a witness concerning the behavior of someone with ADD. The court stated that the testimony would be improper because he had presented no evidence that he suffered from ADD. Shubert agreed that Dr. Friedman would not be testifying that he suffered from ADD. The court also reconfirmed that he was not going to testify.
B. Analysis
1. Deputy Lyyjokis testimony
Evidence Code section 800 provides:
"If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [P] (a) Rationally based on the perception of the witness; and [P] (b) Helpful to a clear understanding of his testimony."
The court did not err in sustaining an objection to the question of Deputy Lyyjoki of whether he thought Shubert was intentionally delaying him. Properly phrased, a question concerning Deputy Lyyjokis perceptions or observations of Shuberts actions indicating a willful delay in his duties would be proper and relevant as willfulness is an element of the section 148 charge. (§ 148, subd. (a)(1).) However, as phrased, the bare question whether Deputy Lyyjoki believed Shubert was intentionally delaying him called for an improper opinion under Evidence Code section 800 as it called for Deputy Lyyjoki to speculate as to Shuberts subjective state of mind.
2. Expert testimony concerning ADD
Shuberts contention that the court improperly excluded evidence and expert testimony concerning his asserted ADD condition is also not well taken. As the record reflects, Shubert indicated that he was not going to testify and Dr. Friedman was not going to give a diagnosis that he suffered from ADD. Accordingly, Shubert had no evidence to present that the court improperly excluded.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.