Opinion
E033145
10-2-2003
Scott M. Rand, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Douglas C. S. Lee, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant guilty of possession of heroin, a needle, and a syringe while in a California Rehabilitation Center (CRC) (Pen. Code, § 4573.6). Defendant then admitted that he had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)) and that he had sustained two prior strike convictions (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). As a result, defendant was sentenced to a total term of 25 years to life in state prison. Defendants sole contention on appeal is that the trial court abused its discretion in admitting his prior bad act, in which he was arrested for selling rock cocaine in 1997, for the purpose of impeachment. We find no error and will affirm the judgment.
The prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) was later stricken.
I
FACTUAL BACKGROUND
On July 11, 2001, about 1 :35 p.m., Officers Carlos Contreras, Adrian Diaz, and Gregory Atha conducted a random security inspection of the dorms at the CRC in Norco, California. When they entered building 207, where defendant was housed, Officer Contreras noticed that defendant was acting in a suspicious manner. The officers approached defendant and detained him to perform a clothed body search. Officer Contreras searched defendant and found a two-inch square of cellophane in defendants left front pocket. Officer Contreras opined that cellophane was closely associated with wrapping narcotics. Officer Contreras placed defendant in handcuffs to prevent him from destroying any other evidence he might have had on his person. The officers then escorted defendant to the staff office within the dorm to perform an unclothed body search in private.
Once at the office, Officer Contreras informed defendant that they would be conducting an unclothed body search and to advise the officers if he possessed any items which would be considered contraband. Defendant did not turn over any items. Subsequently, defendant was uncuffed and instructed to remove his clothing. Defendant removed the sunglasses he was wearing, revealing a black eye. Officer Contreras inspected defendant from the front by directing him to display various parts of his body. When defendant showed his arms, the officers noted several fresh needle marks on defendants right inner arm. Officer Contreras then instructed defendant to face away from him. During an anal cavity check, a white object fell from defendants buttock cheeks.
Once defendant was secured in handcuffs, Officer Contreras picked up the object; it was a rolled up tissue, about two inches long. Inside the tissue was a black, tar-like substance wrapped in cellophane. Officer Contreras believed the substance to be heroin. The cellophane appeared to be made of the same material and size as the cellophane found in defendants pocket during the clothed search. A subsequent examination of both bindles found on defendants person revealed that they contained heroin.
Officer Contreras thereafter searched defendants bed area and locker. Inside defendants unsecured locker, Officer Contreras found an inmate-made syringe in a baby powder can.
Officer Atha escorted defendant to the medical department for a medical and sobriety examination. Following a field sobriety examination, a medical technical assistant opined that defendant was under the influence of an illicit substance and recommended that defendant take a urine examination for definitive results. Defendant, however, refused to take the urine test.
Defendant testified on his own behalf and claimed that an individual named "Grande" forced him to hold the heroin found on his person. He explained that Grande threatened his life if he refused to cooperate or told anyone and that he complied with Grandes request to hold the heroin because he was afraid of being stabbed if he refused. He also stated that Grande came at 7:30 a.m. and injected him with heroin. Defendant asserted that he was afraid of Grande because he had previously been in a fight with him over drugs and Grande beat him up — he gave him two black eyes, a bloody nose, and a scar on the right side of his face. Defendant also testified that he did not know to whom the syringe belonged.
On rebuttal, Officer Contreras testified that defendant had never mentioned that he had been threatened. He also stated that defendant was not the type of person to be pushed around in prison.
II
DISCUSSION
Defendant contends the trial court abused its discretion in permitting the prosecutor to impeach him with his prior bad act, in which he was arrested for selling rock cocaine in 1997, because the probative value of the evidence was not outweighed by its prejudicial effect. (See Evid. Code, § 352.) We disagree.
All future statutory references are to the Evidence Code unless otherwise stated.
At the beginning of trial, the court took up the issue of the admissibility of prior convictions for impeachment. Defense counsel, the prosecutor, and the trial court all agreed that the prosecutor could impeach defendant with the two prior convictions, one for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and one for robbery (Pen. Code, § 211).
Following the Peoples case, defendant indicated that he intended to testify. Outside the presence of the jury, the prosecutor informed the court that she intended to introduce evidence that, in 1997, defendant was arrested for selling rock cocaine in Los Angeles. In that incident, officers had observed defendant handing an unknown item to an individual on a bike. Based on defendants actions, the officers opined that defendant was selling rock cocaine. When the officers approached defendant, he threw an object into the bushes, which turned out to be rock cocaine. Following a "tussle," officers found a marijuana pipe on defendants person. There was no information about what the other person had.
Defense counsel argued that the offense was remote in time and that the circumstances were inflammatory. He also noted that the "jury may use it impermissibly to believe hes using — hes possessing what he has in this case for purposes of sales . . . ."
The trial court permitted the prosecutor to introduce this evidence, noting that the officers had observed the activity and the object involved was later determined to be cocaine. However, the court limited the prosecutor to asking defendant as to whether he participated in the sale of cocaine.
On cross-examination, after defendant testified that Grande forced him to hold the heroin for him, the prosecutor sought to impeach defendant with the challenged prior bad act. The prosecutor asked defendant whether he had participated in the sale of rock cocaine in 1997. Defendant initially denied that he had but eventually stated that he had been observed selling rock cocaine. The prosecutor then used this information to pose a hypothetical question to defendant. The prosecutor asked defendant, "[W]ould you let a person whos a crack addict hold your dope for you?" in an attempt to discredit defendants story that he was holding the heroin for someone else. Defendant replied that he might. The prosecutor did not mention this prior bad act further, either during cross-examination or during closing argument.
Defendant claims the admission of this uncharged arrest was an abuse of the trial courts discretion. We are not persuaded by defendants arguments.
A trial courts decision to admit or exclude impeachment evidence is reviewed for abuse of discretion. (See People v. Wheeler (1992) 4 Cal.4th 284, 296-297.) That is, the trial courts conclusion that the probative value of evidence outweighs its prejudicial effect under section 352 "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Osband (1996) 13 Cal.4th 622, 678.)
Section 1101, subdivision (a) states: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (See also People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
Section 1101, subdivision (b) provides an exception to this rule by stating: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . . .) other than his or her disposition to commit such an act."
Finally, section 1101, subdivision (c) states: "Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
According to the California Supreme Court decision in People v. Wheeler, supra, 4 Cal.4th 284, the trial court has the discretion to determine the admissibility of evidence of past misconduct involving moral turpitude that bears upon the credibility of a witness. (Id. at pp. 296- 297; see also People v. Cloyd (1997) 54 Cal.App.4th 1402, 1407.) To avoid the danger of burdening trials with collateral issues relating to a witnesss credibility, trial courts should carefully consider whether the proffered evidence might involve the undue consumption of time, confusion, or prejudice that outweighs its probative value. (Cloyd at p. 1408, citing and quoting Wheeler at pp. 296-297; see also § 352.) "`"[T]he trial judge need not expressly weigh prejudice against probative value — or even expressly state that he has done so." [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 135, quoting People v. Clair (1992) 2 Cal.4th 629, 660, quoting People v. Mickey (1991) 54 Cal.3d 612, 656.)
In the present matter, it is undisputed that the trial court admitted defendants prior conduct pursuant to section 1101, subdivision (c) — that is, to attack defendants credibility. Of course, relevant evidence includes evidence used to impeach defendants credibility. (People v. Wheeler, supra, 4 Cal.4th 284, 295.) Since the evidence here tended to impeach defendants credibility, it was relevant for this reason alone. In addition, contrary to defendants claim, evidence that defendant was arrested for selling rock cocaine involves a crime of moral turpitude.
Furthermore, we cannot say the trial court abused its discretion in admitting the challenged prior act under section 352. The trial court permitted the prosecutor to inquire only as to the date and location of the incident and whether defendant participated in the sale of cocaine. The court specifically forbade the prosecutor from inquiring as to the circumstances surrounding the arrest. The evidence shows that the prosecutor followed the courts admonition. Additionally, the jury was instructed that it was the sole judge of the believability of a witness and that they could consider the past criminal conduct of a witness amounting to a felony in giving weight to a witnesss testimony. (See, e.g., CALJIC No. 2.20.) Moreover, the probative value of the evidence outweighed its prejudice, and it did not involve the undue consumption of time or confusion. (& sect; 352.) Absent a clear showing of abuse, we will not disturb the trial courts ruling. The trial court did not exceed its discretion in admitting the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 129-131.) And the record does not support defendants claim of undue prejudice.
Even if we assume the trial court erred in allowing the prosecutor to question defendant about his previous arrest for selling rock cocaine, the error was harmless. A judgment may be overturned only if, "`after an examination of the entire cause, including the evidence, [the court] is of the `opinion that 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; see also People v. Wims (1995) 10 Cal.4th 293, 320.) After having examined the entire record, we conclude there was overwhelming evidence for the jury to convict defendant of his current offense. Officers Contreras, Diaz, and Atha all testified that defendant was found in possession of heroin in his buttocks and left front pants pocket. Additionally, a syringe was found in defendants locker, concealed in a container of baby powder. On the other hand, defendants defense was incredible. Accordingly, a result more favorable to defendant was not reasonably probable and there was no miscarriage of justice due to the compelling evidence against defendant.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.