From Casetext: Smarter Legal Research

People v. Sotelo

Court of Appeal of California
Jul 30, 2008
No. A119515 (Cal. Ct. App. Jul. 30, 2008)

Opinion

A119515

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. MANUEL VICENTE SOTELO, Defendant and Appellant.

Not to be Published


Defendant was convicted following a jury trial of possession of methamphetamine for sale (Health & Saf. Code, § 11378), and unlawful transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). In a bifurcated proceeding, the trial court found that defendant served two prior prison terms. He was sentenced to an aggregate state prison term of six years. In this appeal, he submits that evidence of Viagra pills was erroneously admitted, and claims the prosecutor committed misconduct. We find that the challenged evidence was properly admitted, and the prosecutor did not commit misconduct. We therefore affirm the judgment.

STATEMENT OF FACTS

After 8:00 p.m. on February 27, 2007, defendant was detained by California Highway Patrol Officer Steve Curtis after the black Honda he was driving at a "high rate of speed" on Gunn Street in Kelseyville, left the roadway, traveled onto the shoulder, and nearly collided with a fence. As Officer Curtis approached the Honda, he observed the passenger, Dana Sturges, "getting out of the vehicle" at a "fast pace." He ordered Sturges to return to the passenger seat, and contacted defendant at the drivers side window. Officer Curtis immediately noticed a small glass pipe commonly used for smoking methamphetamine on the drivers seat between defendants legs. When Curtis asked defendant to hand him the pipe, "He stated, `Shit, and shook his head." The officer looked into the pipe, but did not see any usable methamphetamine inside it. In response to the officers query about the pipe, defendant said that he "was getting ready to smoke to get high," but also claimed he "didnt have any drugs" in his possession.

After defendant was taken into custody, Officer Curtis contacted Sturges. Sturges was crying and appeared to the officer to be "terrified" of defendant "and what he might do to her." During a search of Sturges, Officer Curtis discovered a black leather pouch tucked into the front waistband of her pants, under her sweatshirt. Inside the pouch were numerous small plastic baggies which contained methamphetamine with a total net weight of at least 57 grams. A metal magnet was attached to the outside of the pouch. Officers from the Lake County Narcotics Task Force responded to the scene and took possession of the pouch and its contents. The black pouch was the only item Sturges had in her possession.

The Task Force officers accompanied Officer Curtis to the California Highway Patrol office in Kelseyville, where they removed the contents of the black pouch, placed them on the counter, and took photographs. The contents of the black pouch included over 30 plastic baggies, some empty and others which contained methamphetamine, a red plastic spoon, and a "cutting agent" called "MSM." Cash in the amount of $1,141 was seized from defendants wallet.

Deputy Kiuya Brown, Agent Thomas Riley, and other officers of the Lake County Narcotics Task Force then conducted a parole search of defendants apartment on Gaddy Court in Kelseyville. Inside the apartment the officers found: indicia that defendant occupied the residence; a single small red spoon similar to the one taken from the black pouch; a "box for a digital gram scale" typically used by dealers of controlled substances to weigh quantities of drugs such as methamphetamine; and a 16-ounce container of "white crystal" similar in appearance to methamphetamine that was identified as MSM, a substance "commonly used as a cut for methamphetamine."

MSM is an acronym for methylsulfonylmethane, an anti-inflammatory sold in feed stores and used primarily on horses for the treatment of arthritis and chronic muscle pain.

All of the seized items were transported to the Lake County Narcotics Task Force office to be processed by Agent Riley. Agent Riley removed the items from the evidence bag for examination and labeling. Deputy Brown testified that he observed 13 little blue pills identified as Viagra (Exhibit 1L) "sitting next to the pouch," along with other items he had previously seen in the pouch. According to Deputy Brown, the Viagra pills were not seized during the search of defendants apartment, and for some unknown reason were not photographed along with other items found in the black pouch.

Deputy Brown testified that in his experience Viagra is not sold by drug dealers. He suggested that the Viagra pills would not have been of any direct benefit to Sturges, as a female, although they "might do someone some good to possess it if they were going to exchange it or give it away" to someone else. Expert opinion testimony was presented from Deputy Brown that the methamphetamine found in the black pouch was possessed for sale, based on a number of factors: the numerous individual dosage units and considerable volume of the drug possessed; the great number of clean, empty plastic baggies recovered from the black pouch; the cutting agent taken from the pouch and also found in defendants apartment; the large amount of cash found in defendants possession; and the box for the digital scale discovered in his apartment.

The defense presented the testimony of Kristine Seuferer, defendants "common law" wife, who had lived with him for nearly eight years. She recalled that on the night of February 27, 2007, defendant left their apartment for work as a bartender at the Brick Tavern. According to Seuferer, the cash defendant carried in his wallet was targeted for use to purchase a money order to pay their rent of $620 per month. Seuferer claimed that the MSM found in their common closet during a search of the apartment was a "horse vitamin" she used to care for her horse. She also testified that the "little red plastic baby spoons" were used to feed their two children. She did not observe defendant in possession of methamphetamine on the night of his arrest, and had never seen any Viagra in their residence. Seuferer acknowledged that defendant had a "drug abuse problem" during their relationship, however, which at "one time" had been a source of "friction" between them.

Dana Sturges, who was jointly charged and tried with defendant, testified in her defense that in February of 2007 she temporarily and intermittently lived with a friend in the same Gaddy Court Apartments in Kelseyville where defendants residence was located. She did not have a romantic or physical relationship with defendant, but was acquainted with him. Sturges asserted that the black pouch and its contents did not belong to her, but she had seen it in defendants possession more than 10 times associated with her regular purchases of methamphetamine from him.

The charges against Sturges were dismissed by the trial court upon request by the prosecution at the close of trial.

Sturges testified that on the night of February 27, 2007, defendant offered to give her a ride from the Gaddy Court Apartments to a friends house near the Brick Tavern, on his way to work. During the drive, defendant unexpectedly stopped the car in the middle of the road and said, "patrol." As a police officer approached, defendant then threw the black pouch onto her lap, and she instinctively put it under her sweatshirt. She did not know the pouch contained methamphetamine, but "suspected it." Sturges did not give the pouch back to defendant because she feared the officer would think she "was throwing it on his lap." She was also afraid of defendant. Sturges claimed that she did not have any connection with the methamphetamine in the black pouch or the blue Viagra pills.

DISCUSSION

I. The Admission of the Viagra Evidence.

Defendant challenges the trial courts admission of the evidence of the Viagra pills observed by Deputy Brown at the Lake County Narcotics Task Force office as Agent Riley was processing the items seized during the searches conducted at the detention scene and defendants residence. Defendant argues that the Viagra, a "medication which would more likely be carried by a man than by a woman," was not relevant to prove the matter for which it was offered: that the black pouch belonged to him rather than Sturges. Defendant argues that "the Viagra did not demonstrate this point, because no evidence was introduced regarding where the Viagra was found. In particular, nobody testified that it was found in the pouch along with the methamphetamine. Therefore, the Viagra had no relevance, and the court erred by overruling defense counsels objections to its admission." Defendant also claims that even if the Viagra evidence "met the relevancy threshold," its probative value was outweighed by its prejudicial effect, so failure to exclude the evidence was error under Evidence Code section 352 (section 352).

A. The Relevance of the Viagra Evidence.

"The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), `and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 337.) "The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence." (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.)

"Relevant evidence is evidence `having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) ` "The test of relevance is whether the evidence tends, `logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive." [Citation.]" (People v. Wilson (2006) 38 Cal.4th 1237, 1245; see also People v. Guerra (2006) 37 Cal.4th 1067, 1117.) "Evidence is irrelevant, however, if it leads only to speculative inferences." (People v. Morrison (2004) 34 Cal.4th 698, 711.) " ` "Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose." [Citation.]" (People v. Brady (2005) 129 Cal.App.4th 1314, 1337-1338.)

Under Evidence Code section 403, subdivision (a), the proponent of proffered evidence "has the burden of producing evidence of the preliminary fact sufficient for a trier of fact to reasonably find by a preponderance of the evidence that the fact exists. [Citations.] Unless the preliminary fact is established, the proffered evidence depending on it is neither relevant nor admissible." (People v. Pizarro (2003) 110 Cal.App.4th 530, 542-543, fn. omitted.) "[T]he trial court must determine whether the evidence is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence [citation], even if the court personally would disagree [citations]." (People v. Marshall (1996) 13 Cal.4th 799, 832-833.) "The court should exclude the proffered evidence only if the `showing of preliminary facts is too weak to support a favorable determination by the jury. [Citations.] The decision whether the foundational evidence is sufficiently substantial is a matter within the courts discretion." (People v. Lucas (1995) 12 Cal.4th 415, 466.)

"Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.] Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 717.) "That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered." (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

Here, the preliminary fact necessary to establish the relevance of the Viagra evidence is that the pills were present inside the black pouch with the methamphetamine. If not, the Viagra evidence had no tendency to prove the material fact of defendants possession of the pouch and methamphetamine. Defendant is correct in asserting that no direct testimony placed the Viagra pills in the black pouch. Deputy Brown testified that he observed pills "sitting next to the pouch" when Agent Riley processed the evidence. We find that the reasonable inference to be drawn from the evidence presented, however, is that the Viagra was taken from inside the pouch. Deputy Brown had not noticed the Viagra pills apart from the pouch, and positively testified that the pills were not seized during the search of defendants apartment. He did not see the Viagra pills until Agent Riley removed the items from the evidence bag at the task force office and was "examining them further." The Viagra was in a position next to the pouch, intermingled with the other items of evidence taken from it, including the baggies of methamphetamine. The prosecution not only placed the Viagra in immediate proximity to the black pouch when its contents were being removed and examined, but also eliminated sources for the Viagra other than the pouch, at least to a sufficient degree to make the inference reasonable rather than speculative. We find no abuse of discretion in the trial courts determination that the foundational showing of the preliminary fact was substantial enough to support a reasonable inference of the relevance of the Viagra evidence. (See People v. Marshall, supra, 13 Cal.4th 799, 832-833; People v. Alvarez (1996) 14 Cal.4th 155, 201.)

Contrary to counsels assertion at oral argument, the relevance of evidence may be established by reasonable inferences drawn from the facts presented. (See People v. Cunningham (2001) 25 Cal.4th 926, 995; People v. Scheid (1997) 16 Cal.4th 1, 13.)

Respondent also points out that Sturges testified that she did not carry the Viagra pills with her, but that testimony was not before the trial court when the ruling on the admissibility of the evidence was made.

B. The Admissibility of the Viagra Evidence under Section 352.

We turn to defendants claim that the Viagra evidence was subject to exclusion under section 352. He maintains that the evidence had "no probative value at all," and "its potential for misleading the jury was very high indeed."

As a threshold matter, we confront defendants contention that the trial court failed to undertake the requisite "weighing process" required by section 352. He relies on the rule that "the record must affirmatively show that the trial judge did [affirmatively] weigh prejudice against probative value . . . ." (People v. Green (1980) 27 Cal.3d 1, 25, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. Martinez (1999) 20 Cal.4th 225, 233-239.) " `[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352. [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 892.) While the trial court in the case before us did not expressly engage in a balancing process when defense counsel interposed a section 352 objection, the record as a whole, and particularly a prior thorough discussion of the admissibility of the evidence — in light of hearsay and prejudicial discovery violation objections by the defense — indicates to us that the court evaluated the probative value and prejudice to defendant associated with the evidence. (People v. Garceau (1993) 6 Cal.4th 140, 177-179; People v. Raley (1992) 2 Cal.4th 870, 894-895.) The court also exhibited awareness of the defense objections to the evidence and claims of its prejudicial effect by excluding the proffered hearsay statement by Agent Riley to Deputy Brown that he removed Viagra pills from the black pouch. (See People v. Hinton, supra, at p. 892.) The weighing process contemplated by section 352 may be inferred. (People v. Carter, supra, 36 Cal.4th 1114, 1152.)

Proceeding to the merits of the section 352 ruling, even relevant evidence may be subject to exclusion by the trial court "if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice." (People v. Mendoza (2007) 42 Cal.4th 686, 699) "The weighing process under [Evidence Code] section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) "Our review on this issue is deferential. A trial courts decision whether to exclude evidence pursuant to Evidence Code section 352 is reviewed for abuse of discretion." (People v. Mendoza, supra, at p. 699.) "The courts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value." (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) "We will reverse only if the courts ruling was `arbitrary, whimsical, or capricious as a matter of law. [Citation.] [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 282.)

We have found that the relevance of the evidence was established. The probative value of the Viagra evidence to establish the possession of the black pouch by defendant rather than Sturges was fairly significant, if not overwhelming. And, the evidence was not cumulative in nature.

Looking at the prejudicial effect of the evidence, defendant claims: "If the jury believed that the Viagra was found in the pouch, they were likely to infer that the pouch was [his] and not Sturgess." That is not the kind of prejudice contemplated by section 352. " `The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations.] `Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.] [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 958; People v. Harris (1998) 60 Cal.App.4th 727, 737.) " ` "The `prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues." [Citations.]" (People v. Garceau, supra, 6 Cal.4th 140, 178; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) " `In applying section 352, "prejudicial" is not synonymous with "damaging." [Citations.]" (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) The Viagra evidence was prejudicial strictly because of its probative value to establish possession of the pouch, not because of its tendency to evoke an emotional bias against defendant. In a case where the jury was called upon to decide if defendant transported and possessed a controlled substance for sale, the fact that he may have also possessed a perfectly lawful prescription drug was not unduly inflammatory. We conclude that the trial court did not abuse its discretion by denying defendants section 352 objection to the Viagra evidence.

II. Prosecutorial Misconduct.

In a related argument, defendant claims the prosecutor committed misconduct during closing argument by making several improper references to the Viagra evidence. First, he objects to the prosecutors explanation, when discussing the need for corroborating evidence of Sturgess testimony, "You dont take it alone with no other supporting evidence. The supporting evidence here is, one, you have the Viagra pills." Then, when referring to the numbering system of the exhibits, the prosecutor stated that those in "the `1 series [which included the Viagra pills] came from that pouch." The prosecutor also argued: "And when you look inside the pouch you get a couple of other things that come up highly relevant, which is [sic] the red spoon and the Viagra pills." Defendant repeats his assertion that "there was no evidence" the Viagra "was ever in the pouch," to support the contention that the prosecutor committed misconduct by stating to the jury "a fact not in evidence."

Other corroborating evidence was also mentioned by the prosecutor: the magnets glued onto the pouch, the plastic spoon in the pouch identical to the one found in defendants apartment; the large amount of cash found in defendants possession.

Respondent contends that defendant "waived the issue on appeal" by failing to challenge the prosecutors comments at trial, but we disagree. " `As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 380; see also People v. Bonilla (2007) 41 Cal.4th 313, 336.) However, "No assignment of misconduct or request for curative admonition is required if either would be futile or if the admonition would not have cured the harm." (People v. Pugh (2002) 104 Cal.App.4th 66, 74; see also People v. Monterroso (2004) 34 Cal.4th 743, 785-786.) Here, the trial court had already overruled defendants objections to the admission of the Viagra evidence, so an objection to the prosecutors comments would have been futile. We thus examine the substance of defendants claim of prosecutorial misconduct. " `The applicable federal and state standards regarding prosecutorial misconduct are well established. " `A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " `"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." " [Citation.] [Citation.] `[W]hen the claim focuses upon comments made by the prosecutor 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. Smithey (1999) 20 Cal.4th 936, 960; see also People v. Prieto (2003) 30 Cal.4th 226, 260.)

Defendant maintains that the prosecutor committed misconduct by referring to a fact not in evidence: the presence of the Viagra pills in the pouch. We find no improper or inaccurate comment upon the evidence in the prosecutors statements. " ` "`[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. " [Citation.]" (People v. Bonilla, supra, 41 Cal.4th 313, 336-337.) "[P]rosecutors have wide latitude to discuss and draw inferences from the evidence and information duly presented at trial. ` "Whether the inferences the prosecutor draws are reasonable is for the jury to decide." [Citation.]" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1061.) " ` "Opposing counsel may not complain on appeal if the reasoning is faulty or the conclusions are illogical because these are matters for the jury to determine." [Citations.]" (People v. McCray (1997) 58 Cal.App.4th 159, 173-174.) However, "It is misconduct for a prosecutor to go beyond the evidence before the jury . . . ." (People v. Coddington (2000) 23 Cal.4th 529, 600; see also People v. Benson (1990) 52 Cal.3d 754, 794.)

The prosecutor in the present case did not misstate or mischaracterize the evidence. Rather, the argument that the Viagra pills were found in the black pouch was based on the prosecutors reasonable interpretation of permissible inferences drawn from the evidence. (See People v. Valdez (2004) 32 Cal.4th 73, 134; People v. Smith (2003) 30 Cal.4th 581, 617; People v. Rowland (1992) 4 Cal.4th 238, 278.) The prosecutor was entitled to argue the assumption, given Deputy Browns observation of the Viagra pills immediately next to the black pouch during the processing of the evidence, and circumstances that tended to negate discovery of the evidence elsewhere, that the pills were in fact derived from the pouch. (See People v. Lucas, supra, 12 Cal.4th 415, 473-474.) The jury was left to determine the reasonableness of the prosecutors proposed interpretation of the evidence. (People v. Smith, supra, at p. 617.) Nothing in the record indicates the prosecutor argued in bad faith, in light of the trial courts admission of the testimony that recounted the discovery of the Viagra evidence. (Ibid.) We conclude that no prosecutorial misconduct occurred. (See People v. Smithey, supra, 20 Cal.4th 936, 1000-1001.)

Accordingly, the judgment is affirmed.

We concur:

Marchiano, P. J.

Margulies, J.


Summaries of

People v. Sotelo

Court of Appeal of California
Jul 30, 2008
No. A119515 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Sotelo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MANUEL VICENTE SOTELO, Defendant…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. A119515 (Cal. Ct. App. Jul. 30, 2008)