Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. TA104016, Arthur M. Lew, Judge, Kelvin D. Flier, Judge.
Joseph S. Klapach, 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, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Lance E. Winters, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Roberto Mendes appeals from the judgment following his conviction by jury of possession of cocaine base. (Health & Saf. Code, § 11350, subd. (a).) The jury acquitted him of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The court suspended the imposition of sentence and placed him on probation. Appellant contends that the court erred by refusing a pinpoint instruction, excluding the testimony of a defense witness, and admitting statements that he made without knowingly and intelligently waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
On December 4, 2008, Deputies Alexander Vallozzi and Jeremy Carr of the Los Angeles County Sheriff's Department were on patrol in Lynwood, in a marked sheriff's vehicle. They noticed appellant on the curb, standing and yelling, at the corner of Long Beach Boulevard and Burton Avenue. After looking at the deputies, appellant quickly turned and stumbled or staggered through a car wash parking lot. He nearly fell as he approached a minivan with an open door.
Vallozzi drove into the parking lot, parked behind the minivan and called appellant. He and Carr got out of the patrol car. Appellant approached them. His breath smelled like alcohol. His pants appeared to be soaked with urine, and he smelled like feces. His eyes were bloodshot and watery, and his speech was slow and slurred. He was "severely intoxicated" and had "no business being on the street." The deputies arrested him for being under the influence of alcohol in public. (Pen. Code, § 647, subd. (f).)
Vallozzi handcuffed and searched appellant. He found five off-white, rock-like objects in the front left pocket of appellant's pants and $62 in cash (three $20 bills and two $1 bills), in his "opposite" pocket. The rock-like objects were later determined to be.84 grams of cocaine base. Vallozzi did not find any paraphernalia for smoking cocaine base.
Vallozzi read the statements on the department-issued Miranda card to appellant, and asked if he understood each statement. Appellant answered, "Yeah, " as to each statement. Vallozzi had to repeat some of the statements before appellant gave an intelligible response. Appellant then said that he had given a ride to a man earlier in the day. He did not say where he had picked him up or dropped him off. After the man left, appellant saw five pieces of rock cocaine on the minivan's passenger seat. He drove down Long Beach Boulevard to sell the cocaine because he needed money.
Vallozzi placed appellant in the back of the patrol car and showed Carr the cocaine base. He also searched the minivan before making arrangements to have it towed away. He found seven or eight empty beer cans but no cocaine or paraphernalia for smoking cocaine base.
Appellant told the deputies that his name was "Roberto, " but "really couldn't tell" them "his last name." The deputies learned that the minivan was registered to Lourdes Mendes of Southgate. Appellant said that Lourdes was his sister, but also said she was his wife. Referring to the cocaine base, appellant said something like, "It's small time. That ain't shit. [¶] [¶] I'm used to bigger things. [¶] This is nothing. That's kid stuff."
Deputy Don Manumaleuma testified as an expert regarding narcotics sales. After hearing a hypothetical fact situation based on this case, Manumaleuma opined that the cocaine base was possessed for sale.
Defense Evidence
Appellant testified that he owned an auto repair shop that was next to a drug treatment center. Beginning in September 2008, patients from that center started to enter his property and damage cars. Appellant reported their conduct to the police. Appellant had been working on his sister's minivan for a couple of months, while it remained parked at his shop. During that time, someone broke the lock on one of its doors, which made the minivan accessible to his employees and intruders from the nearby treatment center.
On December 4, 2008, appellant hosted a barbeque for his employees. He drank two beers but was not drunk. He started driving home in his sister's minivan, at approximately 4:00 p.m. Deputies in a patrol car stopped him on Long Beach Boulevard. He drove into a car wash parking lot. His pants were then wet with urine because he had not taken his usual insulin dose for his diabetes. He feared that he would go into a diabetic shock if he took the insulin after drinking two beers. Without insulin, he could not control his bladder.
The deputies handcuffed appellant and searched him and the minivan. They advised him of his rights. He did not tell them anything about giving a ride to a man who left drugs in the minivan. Nor did he say that he intended to sell the drugs, or say anything like, "This ain't shit." He did not have drugs in his pocket and he never saw any drugs in the minivan on December 4. He did see empty beer cans in the minivan. The deputies did not show him any narcotics.
DISCUSSION
Pinpoint Instruction
Appellant contends that the court committed prejudicial error by refusing to give the jury a requested pinpoint instruction authorizing it to consider the legality of the minivan search in evaluating the credibility of the deputies' testimony. We disagree.
A pinpoint instruction relates "particular facts to a legal issue in the case or 'pinpoint[s]' the crux of a defendant's case...." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Pinpoint instructions "are required to be given upon request when there is evidence supportive of [defendant's] theory, but they are not required to be given sua sponte." (Ibid.)
Deputies Vallozzi and Carr arrested and searched appellant and the minivan on December 4, 2008. His preliminary hearing was on January 13, 2009. On April 21, 2009, the United States Supreme Court held that a law enforcement officer could not lawfully search a vehicle while its occupant was handcuffed in the back of a patrol car unless it was "'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' [Citation.]" (Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710, 1719] ("Gant").)
Appellant requested that the court instruct the jury with the following pinpoint instruction: "The police may only search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might have access to the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. (Arizona v. Gant, supra, ___ U.S. ___ [129 S.Ct. 1710.) [¶] If you find that the police did not abide by these restrictions you may consider this failure as evidence reflecting on the credibility of the officer." Noting that Gant was decided after appellant's arrest, the court refused the instruction and stated that it was not relevant to the deputies' credibility "because there is no reason that they would have known that they were doing anything improper or illegal at the time they did it...."
At trial, appellant had testified that the drugs were in the minivan and Vallozzi testified that they were in appellant's pocket. Appellant claims that his "trial counsel intended to argue that the deputies lied at trial about where they found the drugs because they knew [by the trial date, based on Gant] that if they testified that they found the drugs inside the green minivan, the drugs would have been suppressed because they resulted from an illegal search." He further claims that because the "critical issue at trial was where the deputies found the drugs, " the court clearly erred in failing to give the pinpoint instruction.
The court properly rejected the pinpoint instruction because it reasonably concluded that the deputies could not have known the Gant rule at the time of the December 4, 2008 search, before Gant was decided. (Gant, supra, ___ U.S. ___ [129 S.Ct. 1710].) There was an arguably stronger reason for rejecting the instruction--Vallozzi testified on January 13, 2009, that he found the narcotics in appellant's pocket. That would preclude any reasonable juror from inferring that Vallozzi lied about the location in which he found the drugs to tailor his trial testimony to comply with the rule announced by the United States Supreme Court in Gant on April 21, 2009. Although the trial court did not cite Vallozzi's preliminary hearing testimony, it cited other relevant evidence and correctly declined the pinpoint instruction. (See People v. Geier (2007) 41 Cal.4th 555, 582 ["[An evidentiary] ruling or decision, itself correct in law, will not be disturbed on appeal [and where it is ] right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." [Citations and internal quotation marks omitted].)
Appellant attempts to discount Vallozzi's preliminary hearing testimony because "the illegal search issue resolved in... Gant had previously been resolved by other courts long before the preliminary hearing." This attempt is not persuasive where appellant based his pinpoint instruction upon Gant. There was not substantial evidence to support the requested pinpoint instruction. (See People v. Stanley (2006) 39 Cal.4th 913, 946.)
Miranda
Appellant contends that the trial court erred by admitting his statements because they were "made without a knowing and intelligent waiver of his Miranda rights." (Miranda v. Arizona, supra, 384 U.S. 436.) We disagree.
Prior to trial, the court heard appellant's motion to exclude his post-arrest statements. Vallozzi testified that he and Carr were on patrol when they observed appellant standing in the street, yelling. When appellant saw them, he stumbled back onto the curb and stumbled toward a vehicle in a parking lot. They approached appellant, called him over, and he walked toward them. His eyes were blood shot and watery, his pants were soaked with urine, and he smelled like alcohol and fecal matter. Vallozzi and Carr arrested appellant for being drunk in public. After taking him to the patrol vehicle, Vallozzi read appellant his Miranda rights, sometimes repeating the admonitions and the question, "do you understand?" before appellant would respond. In responding, appellant sometimes used a "heavy" (unnaturally deep) voice. He provided his first name, but not his last name or his address, to the deputies. Once the deputies obtained the name and address of Lourdes Mendes, the registered owner of the minivan, appellant said that was his address and his last name was also Mendes. He said it was his wife's car. Vallozzi also testified that appellant sometimes mumbled or spoke in gibberish, and that he provided information in bits and pieces. Appellant told Vallozzi that earlier in the day he had given a man a ride, and after dropping him off, appellant noticed there was rock cocaine on the passenger seat. About four hours after his arrest, appellant refused to give Vallozzi any oral or written statement.
Appellant's trial counsel argued that his statement was involuntary because appellant was intoxicated and had been in the street yelling just before the interview. He was soaked with urine, stumbling, and unable to care for himself; when deputies talked to him, he was incoherent and used gibberish; he could not give them his address or last name, and they were forced to get that information by running a check on the minivan; and they had to ask him questions four or five times to get an answer. Counsel also stressed that four hours later "when obviously he would have sobered up, " appellant refused to speak with the deputies or sign a statement.
The court made the following comments in announcing its ruling: "What I heard here was that at times he would give a coherent statement and at times he would not, for whatever reason. When somebody's intoxicated, it's hard to say. Maybe at times he just didn't feel like it, and maybe at times he did. [¶] Based on the officer's testimony, I haven't heard anything that would indicate to me that even though he stated that he understood his rights and would talk to him, I don't have any reason to believe that that wasn't a voluntary waiver. I know he was intoxicated, but that by itself doesn't necessarily mean that it's not voluntary."
In challenging the court's finding that he voluntarily and intelligently waived his Miranda rights, appellant emphasizes the same factors that he emphasized below. For example, he was too intoxicated to care for himself, his pants were soaked with urine, he could not provide his last name or address, he spoke in gibberish, the deputies had to repeat many questions and admonitions, and he stumbled, smelled of urine and feces, and had blood-shot, watery eyes.
On appeal, we review the ''factual findings by the trial court as to the circumstances surrounding an admission or confession, '"including the characteristics of the accused and the details of the interrogation" [citation]' under the deferential substantial evidence standard." (People v. Williams (1997) 16 Cal.4th 635, 660.) Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement was obtained in violation of Miranda's rules [citation], that is, whether... the statement was preceded by the... admonition of Miranda rights: the defendant has the right to remain silent, any statement he might make can be used against him, he has the right to the presence of an attorney, and an attorney will be provided at state expense if he cannot afford one." (People v. Weaver (2001) 26 Cal.4th 876, 918.)
Applying this standard of review, there is no basis for reversing the trial court's finding that appellant's statements were voluntary. Although appellant was intoxicated at the time of the interview, our Supreme Court "has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs." (People v. Clark (1993) 5 Cal.4th 950, 988, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 419, fn. 22; People v. Breaux (1991) 1 Cal.4th 281, 301; People v. Loftis (1984) 157 Cal.App.3d 229, 236.) The mere fact of voluntary consumption of alcohol does not establish an impairment of capacity. (People v. Hendricks (1987) 43 Cal.3d 584, 591.) In Hendricks, the evidence showed that the defendant was able to comprehend and answer the questions that were posed to him. (Ibid.) Similarly, here, appellant's responses demonstrated his understanding and comprehension of the situation. He was off the curb, standing in the street, yelling at traffic when the deputies initially observed him. However, once he saw the deputies, appellant left the street, and walked through the parking lot, stumbling, back toward the minivan. When questioned, he managed to tell the deputies his first name but did not provide his last name until they obtained the name of the registered owner of the minivan. At that point, he acknowledged his relationship to its registered owner and admitted having the same last name. Appellant also gave a coherent explanation about the source of the cocaine–an unidentified man to whom he gave a ride left it on the passenger seat of the minivan when appellant dropped him off. Appellant does not dispute that Vallozzi read the Miranda admonitions to him. The fact that Vallozzi had to repeat some admonitions and questions in order to obtain a response, that appellant was inebriated, used some gibberish, provided information in bits and pieces, and intermittently used a deep voice, do not establish that he failed to understand and comprehend the situation.
As the trial court observed, "at times [appellant] would give a coherent statement and at times he would not, for whatever reason.... Maybe at times he just didn't feel like it, and maybe at times he did." The trial court properly denied appellant's motion to exclude his post-arrest statements. His Miranda waiver was knowing, voluntary, and intelligent, and his voluntary intoxication or physical condition did not impair his ability to waive his constitutional rights.
Car Wash Videotape Testimony
Appellant further contends that the court committed reversible error by excluding testimony that sheriff deputies did not seek to obtain a videotape from the owner or operator of the car wash where they arrested appellant. We disagree.
Relevant evidence is defined as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, 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 trial court has broad discretion in determining the relevance of proffered evidence. (People v. Mills (2010) 48 Cal.4th 158, 191.) We review the trial court's rulings on the inclusion and exclusion of evidence under the abuse of discretion standard of review. (People v. Mendoza (2007) 42 Cal.4th 686, 699.) There is no abuse here.
Appellant was arrested in the parking lot of a car wash. At trial, his counsel sought to present the testimony from the owner of that car wash to show that there were video cameras at the car wash; the equipment was set to automatically record over the videotape every 21 days; and no sheriff deputy or investigator tried to obtain a videotape for December 4, 2008, the date of the searches. Counsel argued that because the deputies "didn't even attempt to" obtain the videotape, the testimony of the car wash owner was "relevant with regard to the credibility of the [deputies]." Counsel further argued that without that testimony, the jury would be left "with the impression that... if there was anything positive in this evidence that the police failed to obtain, the defense would have gotten it." The defense could not produce it, however, because it was not available when the defense tried to obtain it. The prosecutor argued that there was "no evidence that [the] deputies knew that there were video cameras" and that Vallozzi's response to a question, "There's video cameras there?" suggested he did not know about the video cameras. The court excluded the proffered testimony after concluding that it was irrelevant and did not "help one way or the other."
Appellant contends that the court erred by excluding the testimony of the car wash owner which was relevant to the credibility of Vallozzi and Carr because "the jury could fairly conclude that the fact the deputies did not seek the videotape affected the credibility of their testimony about the events in question." Based on the offer of proof below, the trial court reasonably concluded that the car wash owner's testimony was not relevant to the deputies' credibility. Appellant did not establish that the deputies knew that there were video cameras at the car wash, what portions of the parking lot the cameras were recording, or whether the cameras would have captured appellant's arrest, the search of his person, and/or the search of the minivan. Under the circumstances, evidence that the deputies did not seek the videotape is not relevant to their credibility.
Appellant also argues that the evidence should have been admitted pursuant to the principle articulated in Evidence Code section Code 412, which states that "[i]f weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." Evidence Code section 412 applies only "when it can be shown that a party is in fact in possession of or has access to better and stronger evidence than was presented." (People v. Taylor (1977) 67 Cal.App.3d 402, 412; People v. Coleman (1972) 28 Cal.App.3d 36, 45-46.) No such showing was made below.
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.