Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. BA311973, Bernard F. Kemper, Judge.
Jeanine G. Strong, 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, Theresa A. Patterson and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
A jury convicted Kevin B. Smith of possession of cocaine base for sale, and found true an allegation that he had a prior strike (a juvenile adjudication for robbery). The trial court sentenced Smith to state prison for a midterm of four years, doubled to eight years for the prior strike. Smith contends his conviction must be reversed because the trial court rejected his attempt to present fingerprint evidence. We disagree and affirm Smith’s conviction. Smith’s sentence is vacated, and the cause is remanded to the trial court to impose statutory mandated fees and penalty assessments.
FACTS
On November 4, 2006, Los Angeles Police Department Officers Jon Kakita and Valentine Reyes (and several other officers) went to a residence on South Brighton after a “citizen . . . told [Officer Kakita] that narcotics were being sold” at the location. When the officers arrived at the residence, Officer Reyes (in plain clothes with his police badge around his neck) and Officer Kakita (in his police uniform) walked up to a metal “security” door and knocked. Smith opened the door, holding a plastic baggie containing “solids that resembled rock cocaine.”
At trial, both Officer Reyes and Officer Kakita specifically testified that they saw the baggie in Smith’s hand.
Then, in quick succession, Officer Reyes announced, “Los Angeles police,” Smith ran back into the recesses of the residence, and Officers Reyes and Kakita followed after Smith. The in-house pursuit ended in a bathroom where Smith tried to throw the baggie in a toilet, but missed. Officer Reyes recovered the baggie from the floor. The baggie contained 17 individually wrapped off-white solid items. Officer Kakita later placed the baggie with the solids into an envelope, sealed the envelope, and “booked” the envelope as “D.R. No. 060333053.” A police department criminalist subsequently determined that the solids contained cocaine base.
In February 2007, the People filed an information charging Smith with one count of possession of cocaine base for sale. The information further alleged that Smith had a prior conviction or juvenile adjudication for robbery, which qualified as a strike.
At a trial by jury in June 2007, the People presented evidence establishing the facts summarized above. Smith represented himself at trial; he presented no defense evidence. As noted above, the jury found Smith guilty of possession of cocaine base for sale. In a bifurcated part of the trial, the jury found the prior strike allegation to be true.
At a pretrial conference held the day before jury selection, the trial court granted the prosecution’s motion to exclude any testimony by Smith’s appointed fingerprint and toxicology experts.
DISCUSSION
I. Exclusion of Fingerprint Testimony
Smith contends his conviction must be reversed because the trial court rejected his attempt to present fingerprint evidence. (See fn. 2, post.) We disagree.
The record shows the following circumstances surrounding Smith’s attempt to present fingerprint evidence at trial.
Prior to trial, Smith asked the trial court to appoint a fingerprint expert based on Smith’s assertion that his fingerprints would not be found on the bag of rock cocaine which the police officers placed in hands at the time he was arrested. On March 2, 2007, the trial court appointed Clarence Collins as Smith’s fingerprint expert and ordered the police department to allow Collins to test the evidence, which had been booked under D.R. No. 060333053.
On June 19, 2007, during a conference held the day before voir dire began, Smith gave some indication that he wanted to call defense witnesses at trial. When questioned by the trial court about whether he had provided the prosecution with names and contact information for his proposed witnesses, Smith replied that he “would just rely on the court’s minute order,” and made a reference to the March 2007 minute order appointing Collins as his fingerprint expert. Smith’s comments prompted the prosecutor to move to exclude “any testimony with regard to fingerprint analysis” on the ground that Smith had not disclosed any reports from any tests on the evidence. Following a short discussion, the court recessed the proceedings for the lunch break before making any ruling.
When the conference resumed, the court revisited the issue of Collins’s testimony, and the following exchange ensured:
“[THE PROSECUTOR]: The fingerprint person who [Smith] has here is Clarence Collins. I just received, . . . for the first time, right now, a report . . . that states that there was a fingerprint test done on a sandwich box and on a clear plastic bag [but] it does not contain a D.R. number, [or] any sort of identification of which bag, pertaining to what narcotics. [¶] . . . [¶] Collins apparently produced this report in April of 2007, saying that he tested a . . . baggie containing items resembling rock cocaine, but . . . there is no way to identify which narcotics these tests were done [on] based on this report. [¶] So there would be [an Evidence Code section] 402 on that basis. And also on the basis that the [expert’s] conclusion . . . is even if we could trace it back to the narcotics in this case, that there were no fingerprints on the baggi[e]. And I am not sure what the offer of proof is as to this conclusion.”
“MR. SMITH: I didn’t say that . . . I was going to admit [the report] into evidence. I just showed her discovery. . . .
“THE COURT: Mr. Smith, let’s not get off the point here. The point is if you are going to be offering somebody that is going to be testifying, then you have to give discovery to the People. [¶] . . . [¶] If you haven’t done that, [then the person] can’t testify. [¶] . . . [¶] I don’t think you are getting the thrust of what the objection is by the People.
“MR. SMITH: . . . Mr. Collins . . . will testify about fingerprint evidence.
“THE COURT: He did examine but he made no report. All he said was he examined; is that correct?
“[THE PROSECUTOR]: That’s correct.
“MR. SMITH: Right, right. That’s why I want to call him as a witness.
“THE COURT: To do what?
“MR. SMITH: So [the prosecutor] can cross-examine him about the D.R. number and the other thing[s].
“THE COURT: No. [¶] . . . [¶] . . . No, I’m not going to allow that. [¶] . . . [¶] Unless you can show that he examined and found something and is able to testify to something. I’m not going to let him testify to a nonevent.
“MR. SMITH: . . . What I am saying, your Honor, is that the prosecution says that . . . I had something in my left hand. To test that, I asked for . . . the appointment of a fingerprint expert. But [a report] is a hearsay document, subject to objection. So that’s why I wanted the witness to come in and testify . . .
“THE COURT: No, you have to produce the information to the prosecution before trial. You don’t do that, you can’t use it.
“MR. SMITH: Okay.”
At the conclusion of the pretrial conference a few moments later, the issue of the fingerprint expert was revisited one last time:
“THE COURT: . . . [A]s far as the fingerprints are concerned, there is not going to be any testimony about fingerprints on the bag. [¶] . . . [¶] [T]here is no indication that the People even did a fingerprint check on the bag. Is that so?
“[THE PROSECUTOR]: There was none done.
“THE COURT: It was not done.
“MR. SMITH: . . . [T]he defense did perform a test . . .
“THE COURT: It was negative.
“MR. SMITH: . . . I think that should be presented to the jury, and it should be presented by way of testimony. . . .
“THE COURT: . . . Your objection is noted.”
We have reviewed Smith’s cross-examination of Officers Reyes and Kakita at trial, and Smith’s argument to the jury, and we see nothing indicating that Smith made any attempt to alert the jury that the People had no evidence showing his fingerprints were on the baggie.
We review the trial court’s ruling to exclude any testimony from Smith’s finger-print expert under the abuse of discretion standard. (See generally, People v. Ramos (1997) 15 Cal.4th 1133, 1175.) Under this standard of review, we will not assign error to the trial court’s decision unless Smith persuades us that the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 375.)
Smith’s arguments on appeal fail to persuade us to harbor such sentiments for at least two reasons. First, the record on appeal shows without dispute that Smith failed to provide the prosecutor with pretrial discovery regarding the results of his expert witness’s fingerprint investigation.
Second, Smith’s discovery omission caused more than a mere problem with a “technicality.” As the prosecutor correctly noted, the belated information provided by Smith at the pretrial conference failed to establish a proper foundation for his fingerprint expert’s testimony, and also failed to establish a foundation for his expert’s purported conclusion that no fingerprints were found on the baggie of rock cocaine, and would have, at a minimum, required a hearing under Evidence Code section 402. In addition, even if the trial court accepted Smith’s assertion that his fingerprint expert would testify that no fingerprints were found on the baggie of rock cocaine, that evidence would not necessarily have proved that Smith did not possess the baggie and would have entitled the People to an opportunity to investigate, and to present evidence, if available, to show that fingerprints are not always found on a item which is touched. Under Evidence Code section 352, the evidence was properly excludable as its probative value was substantially outweighed by the risk of confusion and undue delay. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1204.)
Finally, none of the fingerprint evidence would have had any bearing on the remaining undisputed evidence showing that the baggie of rock cocaine was recovered near the toilet in the bathroom into which Smith ran in an attempt to dispose of the cocaine when the police arrived -- in a residence where Smith was alone and answered the door. All factors considered, we cannot declare that the trial court’s evidentiary decision was irrational or arbitrary.
On a separate front, even assuming that the trial court wrongly excluded Smith’s fingerprint evidence, we would not reverse his conviction because we find the error did not prejudice Smith. (People v. Watson (1956) 46 Cal.2d 818, 836.) Both Officer Reyes and Officer Kakita testified that they saw Smith holding the baggie. More importantly, as noted, there was no dispute in the evidence that the baggie was recovered in a bathroom in the residence where Smith opened the door. In short, we are more than confident that the result of Smith’s trial would have been the same had Mr. Collins testified that Smith’s fingerprints were not on the baggie of rock cocaine.
Finally, we reject Smith’s argument that his evidentiary claims present an issue of constitutional magnitude, requiring a heightened standard of review when examining the potential prejudice causes by the trial court’s error. (See Chapman v. California (1967) 386 U.S. 18, 24.) Although a criminal defendant has a fundamental constitutional right to present a defense through the testimony of witnesses on his behalf, a state court does not infringe upon this right by applying ordinary rules of evidence, and, absent a showing that the defendant was denied a fair trial, there is no constitutional implication. (People v. Cornwell (2005) 37 Cal.4th 50, 82.)
II. Juvenile Adjudication as a Strike
Smith contends the doubling of his sentence under the “Three Strikes” law cannot stand because he did not have the right to a jury trial in connection with his prior juvenile adjudication for robbery. For the reasons previously stated in People v. Del Rio (2008) 165 Cal.App.4th 439, 441, People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079, and People v. Bowden (2002) 102 Cal.App.4th 387, 391-394, we disagree. We recognize that this issue is currently pending in our Supreme Court. (See People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.) Until directed otherwise, we choose to follow the rule that a juvenile adjudication may be used as a strike for purposes of sentencing.
III. Imposition of Fines
At Smith’s sentencing hearing, the trial court imposed an eight-year term as set forth above, but did not pronounce the imposition of any fees, surcharges or assessments. The prosecutor did not bring the matter of such fees, surcharges or assessments to the court’s attention. The abstract of judgment is likewise silent on such fees, surcharges and/or assessments. In their respondent’s brief on appeal, the People contend the trial court erred by failing to impose five separate, mandatory fees, surcharges and assessments. In his reply brief, Smith concedes he “cannot argue that the error was waived. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Stewart (2004) 117 Cal.App.4th 907, 912.)”
We agree the abstract of judgment should be corrected.
DISPOSITION
Smith’s sentence is vacated and the cause is remanded to the trial court with directions to the People to set forth with specificity the appropriate fees, surcharges, and penalty assessments to be imposed against Smith. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J., O’NEILL, J.
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.