Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA335188, Drew Edwards, Judge.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, ACTING P. J.
Appellant Victor Armando Trujillo was charged with possession of cocaine for sale, enhanced with a prior conviction for possession of cocaine base for sale. A jury found appellant guilty of the current offense. He admitted the prior conviction at bifurcated proceedings. He was sentenced to five years in prison. He contends that (1) his rights to due process of law and to present a defense were violated by rulings and prosecutorial misconduct that caused the jury to learn about his prior conviction (U.S. Const., 5th, 6th & 14th Amends.), and (2) he did not knowingly waive all of his constitutional rights when he admitted the prior conviction. We find no prejudicial error and affirm.
FACTS
Sheriff Deputy Jose Sandoval saw appellant throw a cigarette butt onto the sidewalk and arrested him for littering. Inside appellant’s pocket, Sandoval found a bag that contained 16.8 grams of cocaine powder. Appellant also had $217 in currency. He did not appear to be under the influence of narcotics and did not have drug paraphernalia with him. He told Sandoval that he was unemployed.
The only disputed issue at the trial was whether the cocaine powder was possessed for personal use or for sale.
In the opinion of Detective Rob DeYoung, who had been a peace officer for 17 years, the possession was for the purpose of sale. The amount alone was sufficient for that opinion. Cocaine powder is sniffed into the nose through a straw or a rolled-up dollar bill. According to DeYoung, the maximum daily amount is 0.25 grams. He had never heard of 16.8 grams of cocaine being possessed for personal use, as that amount would produce over 300 doses. It was also important that appellant was not under the influence of narcotics when he was arrested, which showed he was a seller and not a buyer.
During cross-examination, Detective DeYoung indicated that cocaine powder can also be heated with baking soda, cooled to make cocaine base, and dried to make rock cocaine, which is smoked through a pipe. DeYoung’s estimate of 0.25 grams as the maximum for personal use was based on up to 0.05 grams being sniffed at one time, no more than five times per day. In his opinion, buyers usually buy what they need, use it, and then buy more.
The defense expert witness was John Jenks, a former police narcotics officer who was fired because he stole cocaine from the police department for his personal use. In Jenks’s opinion, from his reading of the police report and interview with appellant, it was “reasonable to conclude” that appellant possessed the cocaine for personal use. Jenks believed that DeYoung underestimated the size of a usual dose and was too “extreme” in suggesting the cocaine powder here could produce 300 doses. The amount of cocaine powder here was about half an ounce. In Jenks’s view, an addict with “the financial resources and the connections” might possess that amount or a greater amount. Half an ounce was “an amount that someone that uses cocaine, especially someone that smokes cocaine, commonly has.” Addicts purchase illegal drugs in larger quantities, if they can, to obtain better bargains from dealers and to avoid the personal risks that occur during encounters with dealers.
On cross-examination, Jenks added that it was important to consider factors like the person’s lifestyle and financial wherewithal. In his opinion, the cocaine powder here would sell for between $230 to $275 on the street. He agreed that addicts sometimes sell drugs to support their habit or to make a living. If he learned, hypothetically, that an individual had sold illegal drugs in the past, that fact had to be considered, but it did not necessarily mean the drugs here were possessed for sale. If someone had $271 on the street, that fact definitely could indicate recent sales.
DISCUSSION
1. Exposure of the Jury to the Prior Conviction
A. The Record
At a pretrial Evidence Code section 402 hearing, the prosecutor sought to present evidence that her expert’s opinion that the possession was for the purpose of sale was based partly on the fact that appellant had previously been convicted of a similar offense. Defense counsel objected. The trial court ruled that, under Evidence Code sections 352 and 1101, evidence of appellant’s prior drug conviction would “be excluded from the trial of this case.”
The prosecutor then asked, “Your Honor, when you say excluded, just for clarification, that’s excluded through my expert; is that correct?” The court said there would be a different issue if appellant took the witness stand and the prior conviction was used for impeachment.
The issue on appeal concerns problems during the direct examination of Deputy Sandoval and the cross-examination of the defense witness Jenks.
Deputy Sandoval testified that, while on duty with his partner, he saw appellant standing on a corner. The prosecutor’s questioning continued:
“Q And what, if anything, did you observe?
“A He had discarded a cigarette butt [on]to the sidewalk and he was walking with a female companion.
“MR. BAESSLER [defense counsel]: Objection. Relevance.
“THE COURT: Overruled.
“Q BY MS. ALLARDYCE [prosecutor]: And did you stop him?
“A Yes.
“Q And did you -- what happened when you stopped him?
“A We stopped him to cite him for littering. And we questioned him on that and we ran him for -- to see if he had any warrants.
“MR. BAESSLER: Objection. Relevance.
“THE COURT: Overruled.
“Q By MS. ALLARDYCE: And what happened?
“MS. BAESSLER: May I be heard?
“THE COURT: No.
“THE WITNESS: He came back with a no bail warrant for possession of sales [sic].
Viewed in the context of the rest of the evidence, the term “possession of sales” would be understood to mean “possession for sale” of illegal narcotics.
“MS. BAESSLER: Your Honor, may I approach?
“THE COURT: Approach.
“(Discussion at side-bar; on the record.)
“MS. BAESSLER: Your Honor, this is irrelevant and we [had an Evidence Code section] 402 [hearing]
“MS. ALLARDYCE: I didn’t know he was going to
“THE COURT: Go ahead.
“MS. BAESSLER: This is the People’s witness and we 402’d this issue and I made objections twice. The stop is not an issue.
“THE COURT: Counsel.
“MS. ALLARDYCE: Your Honor, I asked for -- Your Honor, I don’t think it’s relevant. I think, obviously, the court should admonish the jury to disregard that. I felt that it was important that they ran him and it was a warrant. Truthfully, I didn’t know what he was going to say.
“MS. BAESSLER: It’s in the report and we discussed this issue extensively.
“THE COURT: I’m going to admoni[sh] the jury to disregard the last answer, but I don’t think it calls for a mistrial. So I’m going to admonish the jury to disregard the last answer and if you want to admonish your witness not to go into this area any further.
“MS. ALLARDYCE: Yes, Your Honor.”
The court then gave this admonishment to the jury: “Ladies and gentlemen, I’m going to admonish you to disregard the last two answers of Deputy [Sandoval]. The two answers -- everything after the evidence regarding Mr. Trujillo throwing the cigarette butt on the street. All the answers after that, I’m ordering you to disregard those answers. [¶] Go ahead.”
Later in the trial, defense counsel sought a ruling that the defense expert Jenks was not to be questioned about appellant’s prior conviction. Defense counsel explained that Jenks had read the police report and had interviewed appellant about appellant’s cocaine use but had not been told about the prior conviction. The court ruled that the prosecutor could ask Jenks hypothetical questions about whether it was relevant if someone had a prior conviction for drug sales, but could not a question like, “Are you aware that Mr. Trujillo has a prior sales conviction?”
The following questioning occurred during cross-examination of Jenks:
“Q.... [¶] Would it change your opinion in any way if you learned that, hypothetically speaking, an individual had been involved in possession for sales before?
“MS. BAESSLER: I am going to object; facts not in evidence, Your Honor.
“THE COURT: Overruled. [¶] You may answer.
“THE WITNESS: It would depend when in time it was and the factors and circumstances surrounding that.
“Q. (By Ms. Allardyce) Okay.
“A. But just because someone has been -- has sold before doesn’t mean the drugs they possess now are for sales, but definitely it’s something that has to be considered.”
B. Analysis
Appellant contends that the court should have granted a mistrial after Deputy Sandoval referred to appellant’s warrant for “possession of sales,” and should not have overruled the objections to the prosecutor’s preceding questions about “what happened” when appellant was stopped. Appellant maintains that the admonition to disregard the testimony was insufficient to cure the damage. We disagree. The court had already ruled, prior to trial, that there was to be no testimony about the prior conviction. The court could not have known that the prosecutor’s questions would lead to Sandoval’s blurting out that appellant had a “no bail” warrant for possession for sale of narcotics. It would have been futile for defense counsel to make a motion for mistrial, as the court already indicated it would not grant one. The court did not abuse its discretion in denying a mistrial, as the single brief reference did not irreparably damage appellant’s chance of receiving a fair trial. (People v. Avila (2006) 38 Cal.4th 491, 573.)
Appellant also argues that the prosecutor violated the pretrial ruling by questioning Deputy Sandoval about the warrant. “It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order.” (People v. Crew (2003) 31 Cal.4th 822, 839.) In our view, before Sandoval testified, the prosecutor should have alerted him not to refer in any way to the existence of the prior conviction. Defense counsel did not, however, object on the basis of prosecutorial misconduct. (Ibid.) Assuming that the misconduct issue is properly before us, a finding of misconduct is not justified. The prosecutor essentially asked, “What happened next?” which does not amount to the knowing introduction of inadmissible evidence. The legality of the arrest was not an issue at the trial (People v. Reyes (1976) 62 Cal.App.3d 53, 68), but the prosecutor could properly ask Deputy Sandoval to describe what happened, to establish the elements of the crime. Moreover, the admonition that was given cured any harm. (People v. Cunningham (2001) 25 Cal.4th 926, 1020.)
The issue is somewhat different regarding the ruling that Jenks could be asked if, hypothetically, a prior conviction for drug sales would change his opinion that appellant possessed the cocaine for personal use. The question suggested that appellant had a prior conviction of that type, even though the court had previously precluded evidence on that issue. “Although the field of permissible hypothetical questions is broad, a party cannot use this method of questioning a witness to place before the jury facts divorced from the actual evidence and for which no evidence is ever introduced.” (People v. Boyette (2002) 29 Cal.4th 381, 449.)
Assuming that the ruling permitting the hypothetical question was error, it caused no prejudice. Detective DeYoung gave detailed testimony to support his opinion that the cocaine was possessed for sale, based chiefly on the amount of it and the fact that appellant did not appear to be under the influence when he was arrested. The defense expert Jenks had the opposite opinion, but Jenks relied in part on the fact that a person with “the financial resources and the connections” might possess for personal use 16.8 grams of powder cocaine, which cost $230 to $275. Appellant had $271 in cash on his person when he was arrested, and he said he was unemployed. An unemployed person usually does not have “the financial resources and the connections” to possess such a large amount of drugs and cash. As the prosecutor argued to the jury, the only reasonable conclusion from the amount of cocaine and the cash in appellant’s possession was that he possessed the cocaine for the purpose of sale.
2. Waiver of Rights on the Prior Conviction
Before the trial, appellant’s counsel said that appellant wanted a bifurcated trial and would waive a jury on the issue of his prior conviction. The court directly asked appellant if he wanted to waive a jury on that issue. Appellant said, “Yes.”
After the verdict, defense counsel indicated that appellant would admit the prior conviction. The court again addressed appellant directly. It stated the details of the prior conviction and asked appellant if he admitted it. Appellant said he did. The court then found the prior conviction to be true.
Appellant complains that, when he admitted the prior conviction, he was not advised of his rights to remain silent and to confront adverse witnesses, as required by In re Yurko (1974) 10 Cal.3d 857, 863. The contention lacks merit, under People v. Mosby (2004)33 Cal.4th 353, 364-365. In Mosby, as here, the defendant was informed that he had a right to a jury trial on the prior convictions, but was not told that he also had the rights to remain silent and to confront witnesses. Applying a totality of the circumstances test, Mosby found a voluntary and intelligent admission of the prior convictions, because the defendant had utilized his rights to confront adverse witnesses and to remain silent at the jury trial, and his prior experience with the criminal justice system showed that he had knowledge of his legal rights. The record here justifies the same conclusion, as before he admitted the prior conviction appellant had confronted witnesses and elected not to testify at the jury trial, and the probation report shows that he had significant prior experience with the criminal justice system.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, J., BAUER, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.