Filed 3/8/16 P. v. Zavaleta CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B261527

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA129838)
         v.

ANGEL M. ZAVALETA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick
Timothy Meyers, Judge. Affirmed.
         Law Office of Zulu Ali and Zulu Ali, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Stephanie A. Miyoshi
and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.


                                     _____________________________
       The jury found defendant and appellant Angel M. Zavaleta guilty of the following
offenses: in count 1, possession of methamphetamine for the purpose of sale (Health &
Saf. Code, § 11378)1; in count 2, possession of cocaine for the purpose of sale (§ 11351);
and in count 3, possession of cocaine base for the purpose of sale (§ 11351.5). In a
separate bench trial, the court found that defendant had: suffered two prior convictions as
to counts 1 and 2 within the meaning of section 11370.2, subdivision (c); two prior
convictions as to counts 2 and 3 within the meaning of section 11370.2, subdivision (a);
and served a prior prison term as defined in Penal Code section 667.5, subdivision (b).
       The trial court struck the prior prison term allegation pursuant to Penal Code
section 1385. Probation was denied and defendant was sentenced to serve seven years in
county jail, consisting of four years for the offense in count 3, enhanced by three years
under section 11370.2, subdivision (a). Concurrent terms were imposed in counts 1 and 2
for the substantive offenses and section 11370.2, subdivision (c) enhancements.
       Defendant contends the trial court erroneously denied his motions: (1) for
permission to wear dress shoes and a tie at trial; (2) to suppress evidence found as a result
of an unlawful search of his wife’s home; (3) to suppress his statements because deputies
coerced his waiver of Miranda2 rights; and (4) for new trial on the bases that he was
prejudiced by delayed disclosure of evidence, admission of his probation status,
insufficient evidence to support the verdict, the jury’s failure to deliberate, and the
admission of his pre-Miranda statement and evidence found in the search.
       We affirm.




       1 Allfurther statutory references are to the Health and Safety Code, unless
otherwise indicated.

       2 Miranda   v. Arizona (1966) 384 U.S. 436, 444-445 (Miranda).

                                              2
                                         FACTS


Prosecution


       At about 1:00 a.m. on April 24, 2013, Los Angeles County Deputy Sheriff Angel
Banuelos was on patrol in a marked vehicle when he observed defendant driving a van.
Defendant and his wife, Maria Hernandez,3 who was in the front passenger seat, were not
wearing seatbelts. Defendant made a right turn without signaling or stopping at the
intersection. Defendant then turned into an alley. Deputy Banuelos and his partner,
Deputy Sanchez, illuminated the van, turned on their vehicle’s red and white lights, and
signaled for defendant to pull over.
       Because they were in a high crime area, the deputies approached the driver’s side
of the vehicle with their guns drawn. Typically drivers have their hands in front of them
or on the steering wheel in a traffic stop. Defendant reached toward the back, under the
seat, indicating to the deputies that he could be hiding something. Deputy Banuelos
asked defendant if he had a driver’s license. Defendant responded that he did not. The
deputy then asked defendant if he was on probation or parole. Defendant replied that he
was on probation. He also told the deputy he was subject to search of his person and
residence at all times as a condition of probation. Deputy Banuelos confirmed that
defendant was on probation and subject to search conditions.
       He then asked defendant to exit the van. Defendant was patted down and escorted
to the patrol car. Defendant had a set of keys in his pocket, which Deputy Banuelos
confiscated. He did not handcuff defendant or admonish him of his Miranda rights. At
no point did defendant attempt to flee. The deputies did not use force against defendant.
When asked where he lived, defendant pointed to a house a few doors away. Deputy
Banuelos asked defendant if he was in possession of any narcotics in the house.


       3 To
          avoid confusion, we refer to Maria Hernandez as “Maria,” and witness Nancy
Hernandez as “Nancy.”


                                            3
Defendant responded that he had narcotics in the garage in a safe that was inside of a box.
At the time the deputy asked defendant these questions defendant was seated in the patrol
car, the patrol car door was open, and the deputy was standing beside the car. Maria was
still seated in the van on the passenger side, and Deputy Sanchez was standing next to the
van.
       Deputy Banuelos asked Maria how she knew defendant and where she lived. She
responded that he was the father of her four children, and that they lived in the house
pointed to by defendant. The deputy asked if there were any narcotics in the house.
Maria had no knowledge of drugs being in the home. She told Deputy Banuelos that she
was “in charge” of the property. Deputy Banuelos asked if she would consent to a
search. He did not advise Maria of her Miranda rights. She said there was nothing in the
house, so she had no problem with the deputies searching. The deputy took Maria to a
seat in the back of the patrol car. He left the car door open. Maria signed the consent to
search while outside of the patrol car. She was not handcuffed, threatened, or arrested at
any point.
       Deputy Banuelos radioed for a supervisor and another unit to assist in the search.
The deputies “cleared” the house and garage of people before the supervising sergeant
arrived. They used defendant’s keys to open the gate, house, and garage. Three children
were asleep inside the house.
       Sergeant Chahine arrived to take videos showing the condition of the garage
before and after the search. The search was conducted after completion of the pre-search
video. Deputy Banuelos found an unlocked safe inside a box on the floor of the garage.
Inside were three plastic sandwich bags, later photographed by Los Angeles County
Sheriff’s Department Criminalist Edmund Ting and determined to contain 27.9 grams of
methamphetamine, 13.91 grams of powder cocaine, and 52.3 grams of cocaine base.
Also recovered in the search were small baggies of the type that are used for narcotics
distribution and a scale.
       Based on his experience, Deputy Banuelos opined that defendant possessed the
drugs for sale. It would be unusual for a user to possess three kinds of drugs in such large

                                             4
amounts. The packaging materials and scale are used in the sale of drugs. Defendant did
not appear to be under the influence of drugs, nor did he possess paraphernalia for drug
use, which also indicated the drugs were possessed for sale.
       After discovering the contents of the safe, Deputy Banuelos handcuffed defendant
and read him his Miranda rights. Defendant read and signed a waiver of his rights while
seated in the back of the patrol car. On the waiver he wrote: “I told them that I
possessed drugs in the garage of the house. The drugs belong to me. No one knew that
they were there. I sell drugs due to the bad economy and I need money.” Defendant
verbally advised the deputy that he was selling drugs because he needed money. He
accepted full responsibility and did not want Maria to get into trouble. Defendant did not
complain of any injuries prior to booking.


Defense


       Maria Hernandez


       Maria and defendant were married but separated. On the night of the incident,
Maria and defendant went out to discuss their relationship. She was not certain where
defendant was living. Maria lived in the house with their four children, which she leased
with a friend. Defendant would come to the house to see the children, but he never went
inside the house. He did not have keys to the house.
       When the deputies pulled them over, they asked defendant and Maria if they had
their seatbelts on. They said they did. Defendant was ordered to get out of the vehicle.
He took off running pursued by Deputy Banuelos on foot and Deputy Sanchez in the
patrol car. Maria ran to the front of the house. She saw defendant lying on the ground in
the neighbor’s front yard with two officers on top of him. The deputies handcuffed
defendant and Maria and put them in the back seat of the patrol car. They left the couple
and walked toward the back of the house.



                                             5
         After about an hour and a half, Deputy Banuelos came to Maria’s side of the car
and said, “I found it.” Maria asked what he had found. He told her if she wanted to act
stupid and lose her kids over defendant that was her choice. He told her to sign a waiver
giving consent to search her house. Maria complied out of fear that she would lose her
children. She was not handcuffed when she signed the waiver.
         Maria testified that the key to the garage was hers, but defendant had the keys
because he was driving. Maria did not keep narcotics in her house. She did not see
defendant sign any documents that night. She was never arrested or charged with a
crime.


         Nancy Hernandez


         Nancy Hernandez saw two deputies on top of defendant in front of a nearby house.
Defendant was on the ground in handcuffs and one of the deputies was hitting him with
his knee. She recognized defendant as her neighbor’s partner. He was crying. The
deputies put defendant in the patrol car and spoke with Maria. They said that they would
take the kids away from her if she did not tell the truth. They handcuffed Maria and
placed her in the car with defendant. Then the deputies walked toward the property.
         Nancy had only seen defendant two or three times before that night. She watched
as defendant and Maria sat in the car for two to two-and-a-half hours. She saw defendant
and Maria kissing. She never saw defendant fill out any paperwork.


         Lenivie Harris and William Jordan


         Lenivie Harris and William Jordan had both filed complaints against Deputies
Banuelos and Sanchez. The deputies searched Harris and his vehicle for no reason
without his consent, and were rude to him. After the search, Harris’s car was left in
disarray and his wallet was missing. Harris’s complaint was never resolved. He was not
arrested or charged with a crime.

                                               6
       The deputies addressed Jordan with a racial epithet. They asked if he was on
probation or parole. He was not. They pulled their guns on Jordan and handcuffed him
roughly, after Jordan was noncompliant with their orders to get on the ground, and
alternatively to put his hands on his vehicle. Jordan sat in the back of the patrol car for
about an hour. Upon being released, Jordan was given a ticket for a broken light and for
driving without a valid license. He was not arrested or charged with a crime. Jordan
filed a complaint, but the matter was later closed because the investigation was
“inconclusive.” At the time of the incident, Jordan’s driver’s license had an irregularity
that was later corrected by the Department of Motor Vehicles.


                                       DISCUSSION


Motion in Limine for Dress Attire


       Defendant contends that the trial court violated his constitutional right to a fair
trial by denying his motion for permission to wear civilian attire at trial, including dress
shoes and a tie. The court addressed defendant’s motion before trial. In accord with the
holding in Estelle v. Williams (1976) 425 U.S. 501, 505-506, that a defendant may not be
compelled to stand before the jury in identifiable prison garb, the court partially granted
the motion, allowing defendant to wear a suit, but denying defendant’s request to wear
dress shoes and a tie in consideration of the sheriff’s security protocols.
       Defendant’s claim of constitutional error fails for three reasons. First, defendant
waived the issue by expressly withdrawing his motion. The court advised defense
counsel that defendant would be permitted to appear in a suit, but the court would not
overrule the sheriff’s policy regarding dress shoes and a tie. The court asked defense
counsel if the court should rule on the motion, or “you can withdraw it.” Counsel
responded, “I can withdraw it, your honor.” Withdrawal of a motion waives the issue on
appeal. (People v. Fudge (1994) 7 Cal.4th 1075, 1097.)



                                              7
       Second, the issue fails on the merits. Defendant cites no authority that he has a
constitutional right to wear dress shoes or a tie during trial. The trial court safeguarded
defendant’s rights by allowing him to wear a suit. While defendant has a right not to be
compelled to appear in identifiable prison garb, he has no comparable constitutional right
to demonstrably dangerous civilian attire.
       Third, any error is harmless under Chapman v. California (1967) 386 U.S. 18, 24.
(See Estelle v. Williams, supra, 425 U.S. at pp. 506-507.) The record contains no
description of the shoes defendant wore at trial, nor is there any indication the jury saw
his footwear. The evidence against defendant is overwhelming, considering that
defendant confessed the controlled substances were his alone and he possessed them for
sale. Error, if any, is harmless beyond a reasonable doubt.


Miranda Waiver


       Defendant contends Deputies Banuelos and Sanchez coerced him into admitting
there were narcotics belonging to him in his wife’s garage by beating him and threatening
Maria. He claims his waiver of his Miranda rights was not voluntary, such that any
admissions made before or after he signed the waiver must be suppressed.4


       Law


       Pursuant to Miranda, “the prosecution may not use statements . . . stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” (Miranda, supra,
384 U.S. at p. 444.) A defendant must be advised of his or her Fifth Amendment rights


       4 Defendant does not argue that the statement he made prior to being read his
Miranda rights was the product of a custodial interrogation in conjunction with this
contention.


                                              8
prior to custodial interrogation. (Id. at pp. 444-479.) “Miranda holds that ‘[the]
defendant may waive effectuation’ of the rights conveyed in the warnings ‘provided the
waiver is made voluntarily, knowingly and intelligently.’ [Citation.] . . . relinquishment
of the right must have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception.” (Moran v. Burbine
(1986) 475 U.S. 412, 421 (Moran).) “‘The prosecution bears the burden of
demonstrating the validity of the defendant’s waiver by a preponderance of the evidence.’
[Citations.] [Citation.]” (People v. Williams (2010) 49 Cal.4th 405, 425 (Williams).)
“Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an
uncoerced choice and the requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived. [Citations.]” (Moran, supra, at p. 421.) “On
appeal, we conduct an independent review of the trial court’s legal determination and rely
upon the trial court’s findings on disputed facts if supported by substantial evidence.”
(Williams, supra, at p. 425.)


       Proceedings


       Prior to trial, defendant moved to suppress all evidence obtained in the search of
Maria’s home on the ground that the search and seizure was unlawful. A special hearing
was held pursuant to Penal Code section 1538.5. In his motion, defendant also argued
that his Miranda waiver was coerced. The prosecution pointed out that the issue should
have been raised in a motion in limine (People v. Mattson (1990) 50 Cal.3d 826, 850-
852), but because the deputy was present to testify with respect to the motion to suppress
and the Miranda motion, the court heard and ruled on the matters simultaneously.
       At the hearing, Deputy Banuelos, Maria, Nancy, Harris, and Jordan’s testimony
was largely consistent with their later testimony at trial. Nancy additionally testified that
she could not write in English, but claimed to have written a declaration in English that




                                              9
was attached to the motion to suppress.5 She referred to defendant as her “neighbor,” to
Maria and defendant as a “couple,” and to the property as “theirs.” Maria referred to the
house as “ours.” Jordan testified that he pleaded guilty to robbery when he was 16 years
old. He was charged and convicted as an adult. The defense stipulated that defendant
was on probation and subject to search conditions.
       Defendant argued that Deputy Banuelos’s testimony was not credible because it
was inconsistent with Maria and Nancy’s version of events. He asserted that Harris and
Jordan’s testimony bolstered his claim that there was a pattern of the officers conducting
searches unlawfully. The search was unlawful because Maria was coerced into
consenting to it. Defendant’s probation conditions extended only to a search of his own
residence. He did not live at the property, so it was not subject to the probation search.
       The prosecution responded that defendant stipulated he was on probation and
subject to search conditions. Deputy Banuelos testified that both defendant and Maria
told him that defendant lived at the house. To the extent that Maria’s testimony
conflicted with the deputy’s, she had a long-term relationship with defendant that biased
her as a witness. Nancy’s testimony was not helpful even if credible because she did not
see defendant sign a waiver of his Miranda rights. It was therefore impossible to tell if
defendant signed the waiver before or after the alleged beating. Harris and Jordan’s
testimony was irrelevant because it was not verifiable. Additionally, Jordan’s testimony
was suspect because he was given a ticket, did not comply with the deputies’ orders, and
had a conviction for a violent crime.
       The court noted that Nancy testified defendant was “our neighbor down the
street,” which it found “jarring.” It ruled that the traffic stop was legitimate in light of the
multiple moving violations and defendant’s probation status. The court found Nancy’s
testimony not credible, in part because she claimed to have written her declaration in
English, although she testified that she could not write in English. The court did not
credit Maria’s testimony because she was biased by her relationship with defendant and


       5 Nancy’s   declaration is not contained in the record on appeal.

                                              10
her interest in the outcome of the case. Although Harris and Jordan testified
“coherently,” their testimony had little relevance to the incident. The trial court
summarized: “The court is the arbiter of the credibility of the witnesses and finds
[Deputy] Banuelos’[s] testimony and his exhibits credible and Maria Hernandez’[s] and
Nancy Hernandez’[s] testimony not as credible. The motion to suppress evidence of the
Miranda waivers by defendant, consent to search by Miss Maria Hernandez and
derivative evidence is denied.”


       Analysis


       Defendant’s challenge to the voluntariness of his Miranda waiver is premised on
Nancy’s testimony that he was handcuffed and beaten while he lay on the ground, and
Maria’s testimony that she was threatened. This testimony was expressly rejected by the
trial court, with the court instead accepting Deputy Banuelos’s version of the incident, a
credibility determination binding on this court on appeal. (People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 217 [“‘we must accept the trial court’s resolution of disputed facts
and inferences, as well as its evaluation of the credibility of witnesses where supported
by substantial evidence’”].) Deputy Banuelos testified that defendant did not flee at any
time, the deputy never used force against defendant, and he did not handcuff him until the
search revealed there were narcotics in the garage. The interaction between defendant
and the deputies, as described by Deputy Banuelos, contains no indicia of coercion that
would undermine the voluntariness of defendant’s Miranda waiver and subsequent
confession. The trial court did not err in denying the motion to suppress defendant’s
post-Miranda statements.




                                             11
Motion to Suppress Due to Unlawful Search and Seizure


       Defendant contends that the trial court erred by denying his motion to suppress
evidence obtained in the search of the property. He argues Maria’s consent to the search
was coerced and involuntary.


       Law


       “As the finder of fact in a proceeding to suppress evidence [citation], the superior
court is vested with the power to judge the credibility of the witnesses, resolve any
conflicts in the testimony, weigh the evidence and draw factual inferences in deciding
whether a search is constitutionally unreasonable. [Citation.] Accordingly, in reviewing
the instant suppression order, we consider the record in the light most favorable to [the
prevailing party] since ‘all factual conflicts must be resolved in the manner most
favorable to the [superior] court’s disposition on the [suppression] motion.’ [Citation.]
But while we defer to the superior court’s express and implied factual findings if they are
supported by substantial evidence, we exercise our independent judgment in determining
the legality of a search on the facts so found. [Citations.]” (People v. Woods (1999) 21
Cal.4th 668, 673-674 (Woods).)
       “The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures’ and
provides that ‘no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.’ (U.S. Const., Amend. IV.)” (Woods, supra, 21 Cal.4th at p. 674.) A
search may not be conducted without a warrant, unless it has been carried out subject to a
recognized exception. (People v. James (1977) 19 Cal.3d 99, 106.) Consent is such an
exception. (Ibid.) “[P]robationers may validly consent in advance to warrantless
searches in exchange for the opportunity to avoid service of a state prison term.”
(Woods, supra, at pp. 674-675.)

                                            12
        Analysis


        Defendant’s argument is based on Maria’s testimony that defendant did not reside
at the house. The trial court discredited Maria’s testimony, instead accepting Deputy
Banuelos’s version of events as true. Deputy Banuelos testified that both defendant and
Maria advised him defendant lived in the house, and Nancy referred to defendant as her
neighbor. Substantial evidence supports the trial court’s finding.
        The search was lawful under the probation condition exception to the warrant
requirement. Defendant stipulated that he was on probation at the time, and specifically
postrelease community supervision. Penal Code section 3453 describes the conditions
included in postrelease community supervision. Subdivision (f) of that section provides
that “[t]he person, and his or her residence and possessions, shall be subject to search at
any time of the day or night, with or without a warrant, by an agent of the supervising
county agency or by a peace officer.” Given defendant’s search condition, there was no
violation of his Fourth Amendment rights.
        Assuming defendant did not reside in the house, he would have no personal
expectation of privacy, and thus no basis for his Fourth Amendment claim. It is well
settled that an individual cannot challenge the introduction of evidence obtained in an
allegedly unlawful search unless that individual had a reasonable expectation of privacy
in the object seized or the place searched. (Rakas v. Illinois (1978) 439 U.S. 128, 143,
148 (Rakas); People v. Valdez (2004) 32 Cal.4th 73, 122; People v. Hoag (2000) 83
Cal.App.4th 1198, 1203.) Mere presence on premises that are searched, without more, is
insufficient to establish a reasonable expectation of privacy. (Rakas, at p. 148; see also
People v. Ayala (2000) 23 Cal.4th 225, 255 [occasional presence on the premises as a
guest or invitee is insufficient to confer an expectation of privacy]; People v. Koury
(1989) 214 Cal.App.3d 676, 686 [same].) Nor can defendant challenge Maria’s waiver
vicariously. “‘Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.’ [Citations.]” (Rakas, at pp. 133-
134.)

                                             13
Motion for New Trial


       Following the verdicts, defendant moved for a for new trial pursuant to Penal
Code section 1181, subdivision (6). Defendant argued: (1) the untimely disclosure of
photographs of the drugs taken by Criminalist Ting was not cured by the trial court’s
instructions to the jury; (2) disclosure of his “parole” status was unduly prejudicial; (3)
the evidence was insufficient to support his conviction; (4) his statements taken in
violation of Miranda and the evidence seized from the garage should have been
suppressed; and (5) the jury failed to deliberate. The trial court denied the motion.
       We review the trial court’s ruling on a new trial motion under a deferential abuse
of discretion standard. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) As
our Supreme Court has explained: “‘“The determination of a motion for a new trial rests
so completely within the court’s discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n
determining whether there has been a proper exercise of discretion on such motion, each
case must be judged from its own factual background.”’ [Citation.]” (People v. Delgado
(1993) 5 Cal.4th 312, 328.) At the same time, however, as to our ultimate prejudice
inquiry, “article VI, section 13 of the California Constitution obliges the appellate court
to conduct an independent examination of the proceedings to determine whether a
miscarriage of justice occurred. As in any appeal from a final judgment, the reviewing
court must determine for itself whether errors denied a fair trial to the party against whom
the judgment was entered.” (People v. Ault (2004) 33 Cal.4th 1250, 1261-1262, fns.
omitted.)


       Delayed Disclosure


       Defendant contends the late disclosure of photographs of the drugs taken by
Criminalist Ting interfered with his strategy to demonstrate that the prosecution did not



                                             14
present adequate evidence to convict, depriving him of a fair trial. He argues the trial
court’s instructions did not cure the harm. We disagree.


                 Law


          Penal Code section 1054.1, subdivision (f) requires the prosecution to disclose
“[r]elevant written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial, including any reports or
statements of experts made in conjunction with the case.” “‘Absent good cause, such
evidence must be disclosed at least 30 days before trial, or immediately if discovered or
obtained within 30 days of trial. [Citation.]’ [Citation.] [¶] Upon a showing both that
the defense complied with the informal discovery procedures provided by the statute, and
that the prosecutor has not complied with [Penal Code] section 1054.1, a trial court ‘may
make any order necessary to enforce the provisions’ of the statute, ‘including, but not
limited to, immediate disclosure, . . . continuance of the matter, or any other lawful
order.’ [Citation.] The court may also ‘advise the jury of any failure or refusal to
disclose and of any untimely disclosure.’ [Citation.] A violation of [Penal Code] section
1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46
Cal.2d 818, 836. [Citation.]” (People v. Verdugo (2010) 50 Cal.4th 263, 280.)


                 Proceedings


          Just prior to trial the prosecution presented photographs of the confiscated drugs,
which were taken by Criminalist Ting during his laboratory analysis. Defense counsel
objected to the late disclosure. The trial court ruled that it would admit the evidence, but
instruct the jury with CALCRIM No. 306. The court asked if defense counsel would like
to “make any further record.” Counsel declined, stating that the court’s ruling was
“fine.”



                                               15
       The jury was instructed: “Both the People and the defense must disclose their
evidence to the other side before trial, within the limits set by law. Failure to follow this
rule may deny the other side the chance to produce all relevant evidence, to counter
opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to
disclose: any photocopies of the substances and packagings depicted in Exhibits 6, 7, 8,
11, 13, and 15 earlier than July 8, 2014. [¶] In evaluating the weight and significance of
that evidence, you may consider the effect, if any, of that late disclosure.”
       In argument, defense counsel reminded the jury of the unfair surprise that the late
disclosure caused. He catalogued extensively the evidence that the prosecution did not
present, including the testimony of any of the three other deputies or the sergeant; the
box, safe, scale, and baggies found with the drugs or any photographs of them; copies of
the videos the sergeant purportedly took in the garage before and after the search; and
photographs of the drugs in situ. He also argued that Deputy Banuelos lacked credibility,
and had motive and opportunity to frame defendant for the crimes.


              Analysis


       In denying the motion for new trial based on delayed disclosure of the
criminalist’s photographs, the trial court noted that the record was “replete with
descriptions of the narcotics seized from the garage, the quantities, appearance, number
of packets, and it’s common practice for the . . . sheriff’s department [to] take charge of
the narcotics in their packaging.” Defendant’s theory was that the narcotics were planted,
and the court concluded that any delay in discovery did not undermine that aspect of the
defense. In addition, the court’s instruction on late discovery cured the problem of the
disclosure being untimely.
       The trial court’s reasoning is sound, and we see no basis for concluding denial of
the motion for new trial based on delayed discovery of the criminalist’s photographs
constitutes an abuse of discretion. The trial court remedied the late disclosure of the
photographs with a jury instruction. We presume the jury understood and followed the

                                             16
instruction when evaluating the photographs. (See People v. Gonzales (2011) 51 Cal.4th
894, 940 [“It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.”].) Defendant does not suggest that
he would have presented his case differently if the photographs had been disclosed
earlier. Disclosure was made prior to opening statements, before the defense had put
forth any theories of innocence, presented any evidence, or cross-examined any
witnesses.
       If defense counsel believed he was inadequately prepared due to surprise, he had
the opportunity to move for a continuance or a mistrial. Counsel did neither. After the
trial court ruled that it would admit the evidence and instruct the jury with CALCRIM
No. 306, defense counsel was asked if he would like to “make any further record.”
Counsel stated the court’s ruling was “fine.” The defense then pursued its argument that
the prosecution failed to present sufficient evidence, along with other theories of
innocence. The record indicates that counsel made tactical decisions that were not
hampered by the delayed discovery.
       Defendant’s primary argument was that Deputy Banuelos was not credible. If the
jury did not accept Deputy Banuelos’s testimony, it is highly unlikely that it would
believe the photographs were of controlled substances possessed by defendant. The
defense theorized that the drugs were planted. A photograph of drugs taken by a
criminalist in a laboratory after they were removed from the crime scene would not
corroborate their origin.


       Admission of Defendant’s Probation Status


       Defendant contends that the trial court abused its discretion in admitting evidence
of his “parole status” under Evidence Code section 352. As the trial court noted,




                                             17
evidence was presented that defendant was on probation, not parole.6 We conclude that,
to the extent that defendant intended to challenge admission of his probation status, the
trial court properly exercised its discretion in admitting the evidence, because any
prejudice was outweighed by its probative value.


              Law


       “‘Evidence that a defendant committed crimes other than those for which he is on
trial is admissible when it is logically, naturally, and by reasonable inference relevant to
prove some fact at issue . . . [Citations.] The trial court judge has the discretion to admit
such evidence after weighing the probative value against the prejudicial effect.
[Citation.]’” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) “The [court] . . .
evaluates the risk of ‘undue’ prejudice, that is, ‘“evidence which uniquely tends to evoke
an emotional bias against the defendant as an individual and which has very little effect
on the issues,”’ not the prejudice ‘that naturally flows from relevant, highly probative
evidence.’ [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled by
People v. Hill (1998) 17 Cal.4th 800 on another ground.) “‘“[I]f the connection between
the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be
excluded.” [Citation.]’ [Citations.]” (Fuiava, at p. 667.) “‘No judgment shall be set
aside, or new trial granted, in any cause, on the ground . . . of the improper admission or
rejection of evidence, . . . unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (People v. Rains (1999) 75
Cal.App.4th 1165, 1170.) “[A] miscarriage of justice should be declared only when the
court, after an examination of the entire cause, including the evidence, is of the opinion



       6 Defendant  does not identify how he would be prejudiced, we presume it is
because the evidence would have tended to show that he was guilty because he had a
criminal disposition.

                                              18
that it is reasonably probable that a result more favorable to the appealing party would
have been reached in the absence of the error.” (Ibid.)


              Analysis


       The trial court did not abuse its discretion in denying a new trial on the theory it
had erred in admitting evidence of defendant’s probation status. Defendant’s primary
defense was that Deputy Banuelos had a pattern of stopping and searching people without
cause, and had fabricated the crimes. In response, the prosecution was entitled to attempt
to prove that Deputy Banuelos was acting in good faith, and that his version of events
was accurate. The fact that Deputy Banuelos asked whether defendant was on probation
or parole before taking him to the patrol car refuted the defense’s position that the deputy
acted arbitrarily and without legal justification. The information was relevant to the
deputy’s credibility and to the issue of whether the deputy’s version of the seizure of the
controlled substances accurately reflected what had occurred.
       In addition to properly finding the evidence relevant, the trial court did not abuse
its discretion under Evidence Code section 352 by admitting evidence of defendant’s
probationary status. “The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The court could
reasonably conclude that the probative value of defendant’s probation status was not
“substantially outweighed” by its potential for undue prejudice. The jury was not advised
of the nature of the offense leading to defendant being on probation. The prosecutor did
not argue defendant should be convicted because he is a probationer. Defendant cannot
establish undue prejudice under these circumstances.
       Assuming the evidence was admitted in error, the trial court was not obligated to
grant a new trial, as any error was harmless given the abundant evidence against
defendant. The deputy testified that defendant told him where the drugs were located in

                                             19
detail. When the deputies searched the garage they found the drugs exactly where
defendant indicated, along with numerous baggies and a scale. Once the drugs were
discovered, defendant again confirmed they were his. He stated verbally and in writing
that he was in possession of drugs and selling them because he needed the money due to
the poor economy. A criminalist confirmed that the substances confiscated were, in fact,
methamphetamine, powder cocaine, and rock cocaine, and specified the amounts. Based
on his experience, Deputy Banuelos opined that possession of the drugs in those amounts,
along with baggies and a scale commonly used in sales of drugs, was for the purpose of
sale. It is not reasonably probable that a result more favorable to the defendant would
have been reached absent the purported error. (People v. Watson (1956) 46 Cal.2d 818,
836.)


        Insufficient Evidence


        Defendant contends that the trial court abused its discretion in finding substantial
evidence supported the verdict. This contention also lacks merit.
        “In reviewing a motion for a new trial [based on insufficient evidence], the trial
court must weigh the evidence independently. [Citation.] It is, however, guided by a
presumption in favor of the correctness of the verdict and the proceedings supporting it.
[Citation.] The trial court ‘should [not] disregard the verdict . . . but instead . . . should
consider the proper weight to be accorded to the evidence and then decide whether or not,
in its opinion, there is sufficient credible evidence to support the verdict.’ [Citation.]”
(People v. Davis (1995) 10 Cal.4th 463, 523-524.)
        We have detailed the abundant evidence against defendant. The trial court did not
abuse its discretion in determining that substantial evidence supported the jury’s verdict.




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       Jury’s Failure to Deliberate


       We agree with the Attorney General that defendant’s conclusory statement that the
jury failed to deliberate in a heading of his opening brief is insufficient to raise the issue.
Issues not supported by argument or citation to authority are forfeited. (Jones v. Superior
Court (1994) 26 Cal.App.4th 92, 99.)


       Admission of Pre-Miranda Statement and Search


       Without citation to authority, defendant makes several conclusory contentions
under the heading of “Admission of Defendant’s Pre-Miranda Statement and Search was
Prejudicial Error.” The trial court did not err in denying a new trial on this basis.
       Defendant has forfeited his contention that his pre-Miranda statements were
obtained during a custodial interrogation, because he did not raise the issue before the
trial court. (People v. Zamudio (2008) 43 Cal.4th 327, 354.) The issue presented to the
trial court was that defendant’s Miranda waiver was coerced by force used against him
and threats to Maria. The determination of when the contact between the deputies and
defendant evolved into a custodial interrogation requiring Miranda rights turns on factual
determinations, which the trial court has not made. We reject the argument that the trial
court was required to grant a new trial on the ground defendant’s Miranda waiver was
coerced; as stated earlier in this opinion, the trial court did not err in denying the motion
to suppress based on an involuntary Miranda waiver.
       We also reject the argument that defendant was entitled to a new trial because the
trial court erred in denying his motion to suppress the fruits of the search in violation of
the Fourth Amendment. The initial motion to suppress under the Fourth Amendment was
properly denied at a special hearing before trial, as we have previously held. Moreover,
defendant had a full and complete hearing in a special proceeding under Penal Code
section 1538.5 before trial. He was not entitled to relitigate that ruling based on the
identical facts. (People v. Superior Court of Butte County (1971) 4 Cal.3d 605, 611.)

                                              21
The motion for new trial was properly denied to the extent it relied on previously litigated
search and seizure issues under the Fourth Amendment.


                                     DISPOSITION


       The judgment is affirmed.




              KRIEGLER, J.


We concur:




              TURNER, P. J.




              BAKER, J.




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